Opinion
F085076
09-27-2023
In re J.G., a Person Coming Under the Juvenile Court Law. v. JOHN G., Defendant and Appellant; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, J.N., Defendant and Respondent; J.G., Appellant.
Beth A. Sears, under appointment by the Court of Appeal, for Appellant. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Respondent. Jennifer M. Flores, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. JJV073560B Glade F. Roper, Judge. (Retired Judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Beth A. Sears, under appointment by the Court of Appeal, for Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Respondent.
Jennifer M. Flores, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DETJEN, Acting P. J.
At a dispositional hearing in September 2022, the juvenile court adjudged then five-month-old J.G. (the child) a dependent child, ordered family reunification services for the child's mother, J.N. (mother), and denied family reunification services to the child's father, John G. (father). The child appeals from the dispositional orders, contending the juvenile court abused its discretion when it provided mother with family reunification services. Father also appeals from the juvenile court's orders denying him family reunification services. Both the child and father argue that their rights to due process were violated because the juvenile court proceeded with an inadequate disposition report. Finding no error, we affirm the juvenile court's order.
PROCEDURAL AND FACTUAL SUMMARY
In April 2022, the Tulare County Health and Human Services Agency (agency) received a referral shortly after mother gave birth to the child at home. It was reported that the child's umbilical cord remained attached to herself and the placenta, and the placenta was being utilized as the child's feeding source. Mother and father had previous child welfare history for the severe neglect of the child's sibling. Law enforcement and an agency social worker responded to the mother's home, but no one answered the door. An attempt for contact with the family was made at father's home, and he refused to allow anyone in the home to speak with law enforcement. Mother contacted the social worker through "Face Time" later that evening. The social worker was able to observe the child, but mother would not disclose her location.
A protective custody warrant was authorized for the child, and multiple attempts were made to locate the child without success. On April 7, 2022, mother finally contacted the social worker by phone and agreed to meet her near a fast-food restaurant. Mother approached the social worker with the child in her arms. Law enforcement executed the protective custody warrant and placed the child into protective custody with the social worker. The child was observed to be "listless and floppy," and an ambulance arrived to transport the child to the hospital. Paramedics reported the child's heart rate was severely low, and cardiopulmonary resuscitation (CPR) might be necessary.
Medical staff began providing care for the child upon her arrival at the hospital. She appeared" 'very hungry'" when provided a bottle of formula. Hospital staff explained that the child was dehydrated, which could be observed when the child cried without producing tears. The child was admitted to the hospital for evaluation of her heart rate, and she was transferred to the pediatric intensive care unit (PICU).
The agency filed an original petition alleging the child was described by Welfare and Institutions Code section 300, subdivision (j). The petition alleged the child was at substantial risk of being neglected by mother and father in the same manner as her sibling. The detention report recommended the child remain in protective custody and that mother and father be denied family reunification services pursuant to section 361.5, subdivision (b)(10) and (11).
Further statutory references are to the Welfare and Institutions Code.
The detention report also detailed mother's and father's child welfare history. In August 2020, the sibling was admitted to the hospital after mother found him to be unresponsive at 10 months of age. The sibling was found to be severely malnourished, and he suffered a significant brain injury. The parents' failure to properly feed the sibling was determined as the likely cause of the sibling's suffering of seizures and lack of oxygen to the brain. Family members reported that mother and father only fed the sibling blended fruits and refused to provide the recommended amount of formula. Mother and father also made the sibling participate in fasting, detoxing, and" 'hot yoga.' "
Dependency proceedings were initiated alleging the sibling was described by section 300, subdivisions (b) and (e) based upon mother and father's deliberate malnourishment and deprivation of necessary medical treatment for the sibling. The allegations of the petition were sustained and both parents were denied family reunification services pursuant to section 361.5, subdivision (b)(5) and (6). Mother and father's parental rights were subsequently terminated as to the sibling at a section 366.26 hearing in December 2021. In 2017, father was designated as an alleged father for one other child subject to dependency proceedings. Father was not provided services as an alleged father, and this child's mother was eventually granted sole legal and physical custody of this child.
At the detention hearing held on April 8, 2022, mother and father were present and declined appointment of counsel. The juvenile court allowed both parents to proceed in pro. per., and counsel was appointed to represent the child. The child was ordered detained from mother and father's custody, and a contested jurisdiction and disposition hearing was set for April 28, 2022. The parents' rights to make medical decisions for the child were suspended by the juvenile court, and the agency was vested with the child's medical rights.
The agency requested additional time to complete a report at the initial jurisdiction and disposition hearing. Mother and father continued to decline appointment of counsel, and the parties discussed various discovery requests made by father. Father referenced a dependency law guidebook and case law during his request for discovery from the agency. The juvenile court took the discovery matter under submission after argument from the parties and continued the hearing for two weeks.
The report prepared for the jurisdiction hearing recommended the allegations in an amended petition be found true. The amended petition included additional allegations under section 300, subdivision (b)(1) that the child was at substantial risk of serious physical harm due to the parents' failure to provide adequate medical care. The agency also recommended that disposition be continued for the gathering of additional information and that the paternal grandmother be authorized to make medical decisions for the child. The child was placed with the paternal grandmother and sibling.
On April 26, 2022, the social worker met with mother and father during a supervised visit with the child. Mother engaged with the child and held her throughout the visit. Father was late to the visit, but he was attentive to the child. Mother claimed the child was taken to a doctor prior to her removal with no medical concerns noted. The social worker asked if their lifestyle or circumstances changed since the sibling's case, and father responded" '[w]e have done nothing wrong, we live the same.'" Mother reported her completion of counseling and courses for child abuse, parenting, CPR, and nutrition. Father denied completing any services, and he stated," 'You guys kidnapped my kids.' "
On May 10, 2022, the child's counsel filed a motion to disqualify the agency and its counsel and appoint another agency to supervise the case. Her counsel argued that there was an "actual conflict" of interest between the child and the agency such that it should not be able to make decisions regarding the care, custody, and control of the child. This conflict was alleged to stem from the filing of a lawsuit against the agency by the paternal grandmother and on behalf of the sibling. The child's counsel claimed the child was "at the mercy of the people they are suing for failing to meet their obligations to them."
Alternatively, it was requested that the juvenile court find "that there is at a minimum an appearance of impropriety that ethically creates a situation where these agencies no longer have the trust and support of the other individuals responsible for making decisions regarding the minor children, including this minor's counsel." The motion further alleged that the agency was unable to act impartially or in the best interests of the child while involved in civil litigation with the paternal grandmother.
On May 12, 2022, the juvenile court held a continued jurisdiction and disposition hearing. Father and the agency both requested continuances to address various motions pending before the juvenile court. Father had filed several documents entitled: "Request for Production," "Answer to Petition," "Request for Admission," and "Motion to Strike." (Some capitalization omitted.) He also filed a motion to continue the case due to the unavailability of "the primary physician witness," ongoing criminal proceedings, and continuing discovery. The hearing and other various motions were continued to June 23, 2022. On May 19, 2022, father filed a motion for trial by jury.
At the continued hearing, mother and father were both present and continuing to represent themselves. The attorneys representing paternal grandmother in the civil lawsuit were also present and advocating for the agency to be disqualified from handling the child's dependency matter. Mother, father, and the agency argued that the motion to disqualify the agency should be denied. Counsel for the child argued in support of her motion.
The juvenile court found that the County of Tulare had an "apparent conflict of interest." The child's counsel was ordered to contact another county, and she was responsible for finding a county that would accept supervision by the next hearing. The agency was ordered to maintain its supervision until a new agency was appointed, and continued care, custody, and control of the child remained with the agency pending the next hearing. The juvenile court continued the jurisdiction and disposition hearing and all other motions until August 4, 2022.
The agency provided an update on the child's visits with both parents in an addendum report, dated August 2, 2022. The parents' visitation was supervised by the agency, and both parents were noted as being engaged with the child. Mother and father met the child's needs during their visits by feeding and changing her.
On August 4, 2022, the parties were informed that the child's counsel was unable to find an alternative agency to supervise the case. Father indicated his desire to proceed with the agency supervising the matter and to resolve the proceedings as quickly as possible. Mother and father both expressed their disagreement with the agency being responsible for locating an alternative agency. The child's counsel argued that mother and father would not need to waive any conflict that existed between the agency and the child. The hearing was continued for one week to allow the agency to determine if it was willing to assist in locating an alternative agency to supervise the case.
At the continued hearing held on August 11, 2022, counsel for the agency expressed her willingness to assist in locating an agency, but she also indicated that parties may claim that the alternative agency is biased because the agency was involved in its selection. The child's counsel requested that the juvenile court order the agency to locate an alternative agency, and she was willing to waive any conflict related to the agency's search. The juvenile court refused to order the agency to locate another agency unless child's counsel and paternal grandmother were willing to stipulate that they would not sue the agency for their activities in pursuing another agency to supervise. The child's counsel and paternal grandmother agreed to the proposed stipulation to allow the agency to locate another agency to provide "courtesy" supervision of the case. The hearing was continued to September 1, 2022, to allow the agency to make efforts to locate another agency.
An addendum report dated August 31, 2022, provided updated information on the agency's efforts, the child's medical condition, and the parents' visitation. The agency's deputy director contacted multiple child welfare agencies in the surrounding region, but none of the agencies expressed a willingness to accept the case for courtesy supervision. A report from the Child Advocacy Center at Valley Children's Hospital reflected an ongoing concern of inadequate supervision during the parents' visits. The child was becoming sick after multiple visits, and the paternal grandmother suspected mother and father were making the child ingest herbal supplements while the agency's visitation staff were not paying attention.
Mother and father were participating in two supervised visits each week for three hours at a time. The visitation staff insisted that mother and father were always supervised by at least one staff member during their visits. Mother was observed feeding the child a bottle that was prepared by the paternal grandmother, and father normally left the visitation room while the child was fed.
On September 1, 2022, the juvenile court provided the parties with an update regarding the agency's inability to find an alternative agency to provide courtesy supervision. The paternal grandmother reportedly filed a lawsuit in federal court seeking to compel the State of California to locate an alternative agency. Counsel for the agency questioned the ability of the paternal grandmother to seek such an order as the child's relative care provider. The juvenile court appointed the paternal grandmother as the child's medical rights holder because the agency had previously requested that an individual be appointed.
Counsel for the agency then raised the issue of statutory timelines since the case was nearing six months from the child's initial removal. The child's counsel agreed to proceed with the jurisdiction hearing while continued efforts were made to locate an alternative agency. Any conflict between the child and the agency was waived through the jurisdiction hearing, and counsel for the child agreed that the agency could at least handle the matter through the beginning of the disposition hearing. The juvenile court continued the matter for a contested jurisdiction hearing in the following week, and father's various motions would be addressed on that date.
At the jurisdiction and disposition hearing held on September 8, 2022, mother and father were both present and proceeding in pro. per. The juvenile court allowed father to argue his recently filed motion to disqualify the judge. Father's various motions to disqualify the judge, strike the petition, have a jury trial, allow media access to the court, and rehear the detention hearing were denied. A request by the child's counsel for judicial notice of the sibling's dependency case file was granted by the juvenile court. The juvenile court acknowledged that no parent made a formal request that the juvenile court intervene in their requests for discovery.
Counsel for the agency requested the juvenile court take judicial notice of the reports already filed in the proceedings and argued that the petition should be sustained. The child's counsel requested that the juvenile court find the allegations of the amended petition true. Father submitted a medical report from the child's visit to a doctor prior to her removal, and he indicated that he had no additional evidence to present.
In father's closing argument, he referenced facts that were not in evidence, and he was admonished that all the evidence had already been submitted. The juvenile court then encouraged father to accept counsel for the disposition hearing because it had sympathy for father's lack of understanding of procedures. Father concluded his argument by stating, "I mean it doesn't matter what I say or mother says. It really doesn't matter when you are going based off of the preponderance of the evidence. So, go ahead and move forward."
Mother began her argument with a narrative regarding the circumstances leading up to the child's removal. After a discussion with father about his request to present additional evidence, the juvenile court allowed mother to testify. Mother admitted that the sibling had "some" medical issues, but she denied that the sibling's medical issues were a result of her own actions. She claimed her dietary beliefs had not changed.
A social services assistant responsible for supervising mother and father's visits testified that mother typically fed the child by bottle during visits. Father was observed feeding the child only once by the assistant, and he walked out of the visit about half of the time during the child's feedings. The emergency response social worker testified about her observations during the initial investigation of the referral.
Father provided testimony on his own behalf regarding the time leading up to the child's birth and the few days after her birth. Mother and father decided to keep their pregnancy a secret due to their "current situation." He testified that the agency's social workers only made assumptions about the parents based on their past, and he insisted that he would never harm any of his children. During father's argument, he claimed that he was forced to have an attorney during previous proceedings. He also stated that he was not allowed to present evidence because he had counsel. Father ultimately argued that there was no evidence to support the agency's allegations.
After hearing argument from the parties, the juvenile court found that the allegations in the amended petition were true by clear and convincing evidence. The disposition hearing was continued to September 29, 2022, and all parties were ordered to appear.
On September 26, 2022, the agency filed a disposition report, which recommended that the rights to make medical, dental, educational, and mental health decisions be vested with the paternal grandmother. The child remained placed with the paternal grandmother, and the agency's efforts to comply with the Indian Child Welfare Act inquiry requirements were detailed in the report. The report also reiterated the parents' prior child welfare history, family law orders, and criminal background checks, which was previously reported in its jurisdiction report.
The agency remained concerned for the child's safety based upon the parents' previous severe neglect of the sibling, and its assessment of the family remained unchanged since the jurisdiction report. The parents' continued pattern of not meeting the needs of their children and failing to take accountability for their children's medical concerns were noted as areas of concern. The social worker attempted to interview father regarding his strengths and needs, but father refused to discuss the case. Father refused to answer any questions or provide any statements for purposes of the report. Mother identified her children and family as her strengths, and she was open to any services. The child was tolerating her feedings well and started eating baby food.
An update on the parents' visitation described how at a recent supervised visit with the child the father left for more than two hours. The paternal grandmother noted no concerns after the child's recent visits with the parents. In a section describing services available to the family, the report stated, "If the court orders services, the parents would benefit from Counseling, Child Abuse Intervention Program, Parenting Education with [emphasis] on nutritional needs for infants and children." Father told the social worker that he did not want to discuss services. Mother advised the agency that she would selfenroll in counseling and parenting education, and she provided certificates of completion for programs that she completed on her own.
The child's concurrent plan was noted as adoption with the paternal grandmother "in the event that the parents were not able to complete Family Reunification Services." Under a section entitled "Non-Reunification Issues (WIC 361.5)" (boldface, underlining &some capitalization omitted), the report noted the previous denial of services for both parents under section 361.5, subdivision (b)(6) in the sibling's case. A case plan was attached to the report, which identified mental health, parenting, and child abuse components for both parents.
At the disposition hearing held on September 29, 2022, mother and father were present and continued to proceed in pro. per. Father filed a "Motion for Financial Relief" (boldface &some capitalization omitted) to seek payment for a physician that he described as an expert witness. Father claimed that the physician observed the child during a well visit prior to her removal, and the physician required witness fees of $5,000 for his appearance. The juvenile court denied father's request for witness fees because the physician was a percipient witness, and therefore, not entitled to expert fees. The request was also denied because the physician's testimony was deemed irrelevant as to dispositional issues.
The juvenile court then asked for input from the parties on the agency's motion to clarify its ability to visit the child, refer the parents to services, and contact service providers. Father acknowledged receipt of the motion, but he was unable to open a message containing the disposition report because he input an incorrect password. Mother was able to access the disposition report because she remembered the password that she previously set up to receive communications from the agency. A copy of the disposition report was provided to father, and the juvenile court granted the agency's motion.
Father indicated he was not ready to proceed with the disposition hearing until after he reviewed the disposition report. He also referenced his intention to "have access" to the child's physician for the hearing, and he acknowledged that the juvenile court determined that the physician's testimony was not relevant. Counsel for the agency suggested that the matter be trailed for 90 minutes to allow father to review the report. The juvenile court trailed the matter and requested that father become prepared while other cases were heard.
After the recess, counsel for the agency submitted on the agency's detention, jurisdiction, addendums, and disposition reports. No parties objected to the court taking judicial notice of the agency's reports or made any other objections to the juvenile court's consideration of the disposition report. The child's counsel had no additional evidence to present. Mother submitted a statement from a physician, e-mails with her social worker from the sibling's case, and certificates of completion for various programs. The juvenile court accepted the documents into evidence without any objections from the parties.
The juvenile court asked father if he had any evidence to present, and father began arguing that the juvenile court lacked "territorial" jurisdiction over the matter. Father referenced his filing of a "Notice and Demand" (boldface, underlining &some capitalization omitted) regarding his arguments that the juvenile court and agency lacked jurisdiction over his family. He requested the immediate return of the child, and he would not "entertain" anything less. Father objected to "moving forward to disposition" until the agency addressed his "[N]otice and [D]emand" letter.
After hearing father's argument, the juvenile court indicated that it did not need additional argument from the parties, and it intended to adopt the recommendation of the agency. Counsel for the agency explained it had not specified a dispositional recommendation due to the previous conflict finding. The various dispositional options were outlined by the agency's counsel, including return of the child, voluntary guardianship, family maintenance services, family reunification services, or bypassing reunification services. The juvenile court asked for confirmation that the case plan attached to the disposition report would be appropriate if it ordered family reunification services to the parents. The agency's counsel responded in the affirmative.
The child's counsel requested that the juvenile court deny family reunification services to both parents, and she argued that "the bypass provisions apply." She insisted that both parents did not accept any responsibility, and she noted that mother completed programs prior to the child's removal. Therefore, the child's counsel did not believe that reunification was in the child's best interest.
Mother responded to the arguments of the child's counsel by claiming that she was unable to admit any fault in the child's or sibling's case because it could be used against her in criminal proceedings. She felt it was unfair that she was not able to have custody of her children because she had not admitted fault in relation to the child's condition. The juvenile court then asked mother if she wanted to reunify with the child, and mother responded, "I will do whatever it takes to get my child back."
Father argued that it was not a crime to have an "active plant based life-style." He suggested that the family's issue was "disgruntled coparenting," and the agency used it as a weapon for control. Father placed blame on the paternal grandmother for reporting the prior neglect of the children, and he claimed that he was being slandered and targeted. While concluding his remarks, father stated, "the best interests for the Court and for our family is to reunite her with her family. And you know get this case out the door." After a brief rebuttal argument by the child's counsel, father continued his argument by claiming that no allegations have ever been sustained against him, and he argued that there was insufficient evidence to remove the child.
The juvenile court then asked father if he wanted to engage in reunification with the child. Father indicated he wanted the child returned to him immediately. However, the juvenile court clarified that it was asking if he was willing to engage in a reunification case plan to regain custody of the child. Counsel for the agency listed the services that father would be required to complete in the potential case plan that was attached to the disposition report. The juvenile court reiterated its question about father's willingness to complete reunification services. Father asked if the services were mandatory, and the juvenile court responded that the services were mandatory for the child to be returned. The juvenile court indicated that there would be no point in providing a reunification plan if father was not willing to participate in services. Father then responded as follows:
"Well, you know, Your Honor, as I have expressed to the Court today and as I have expressed to the Court on many other occasions not only for this case as well but the lawfulness of the process and procedures that were being conducted under, they hold the grounds of almost being considered unlawful on many levels. And you are basically telling me to submit-you are telling me to submit. And if what I am saying is in fact true and the pretenses of our child-I mean of our daughter being removed and our son being removed was unethical, unlawful and because of that it's like I have to submit to the kidnapers of my children and perform these courses ...."
The juvenile court clarified that father did not have to submit to anything or participate in services if he did not want to. Father claimed he was unable to accept an "ultimatum" that he either complete services or not have the child returned to him. Father insisted that he would "continue to fight" for his family instead of submitting to complete services. He believed the evidence against him was false, and he would "stand on that."
After hearing argument from all the parties, the juvenile court denied family reunification services to father and granted family reunification services to mother. The juvenile court found there was "no point" in providing father reunification services. Counsel for the agency suggested that father could be denied reunification services pursuant to section 361.5, subdivision (b)(10) or (11), and the juvenile court denied services as to father under both bypass provisions. A six-month review hearing was set for March 16, 2023.
DISCUSSION
I. Adequacy of Disposition Report
For the first time on appeal, both the child and father claim the juvenile court erred by proceeding with the disposition report without a specific recommendation for services from the agency. The agency argues that the child and father waived any right to assert the issue on appeal because they failed to raise the issue below. We agree that the child and father waived any complaint regarding the disposition report.
A. Applicable Law
" 'Waiver,' of course, suggests an express relinquishment or abandonment of a known right or privilege. [Citations.] '[T]he terms "waiver" and "forfeiture" have long been used interchangeably. The United States Supreme Court recently observed, however: "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' [Citations.]" [Citation.]' [Citations.]" (People v. Mata (2013) 57 Cal.4th 178, 193 (conc. opn. of Werdegar, J.), italics omitted.) Forfeiture is intended to prevent a party from standing by silently until the conclusion of the proceedings. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037-1038.)
Forfeiture of issues on appeal has been applied in dependency cases in a variety of different contexts. (In re N.O. (2019) 31 Cal.App.5th 899, 935.) As a result, pursuant to well-established authority repeatedly and consistently applying the waiver or forfeiture doctrine in dependency cases, we find father and the child forfeited their argument. (In re S.O. (2002) 103 Cal.App.4th 453, 459-460 [failure to raise issue of sufficiency of dependency petition]; In re L.Y.L. (2002) 101 Cal.App.4th 942, 956, fn. 8 [adequacy of assessment report not raised below]; In re Levi U. (2000) 78 Cal.App.4th 191, 201 [the mother waived due process claim]; In re Janee J. (1999) 74 Cal.App.4th 198, 209-210 [the mother waived lack of notice claim]; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1484, fn. 5 [objection to removal order waived by failure to challenge below]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [the father waived contention regarding lack of bonding study by failure to request]; In re Amos L. (1981) 124 Cal.App.3d 1031, 1038 [no objection to inadequacy of social study].)
B. Analysis
Both the child and father received and reviewed the disposition report prior to the juvenile court entering its disposition orders in the matter. There were no objections made by the child or father with respect to the contents or absence of a recommendation as to the proper disposition in the report. The agency's counsel explicitly addressed the reasons behind its decision not to specify a recommendation in the disposition report. The child's trial counsel articulated her own position regarding an appropriate disposition and expressed no complaints with the agency's neutral position. Meanwhile, father only objected to proceeding without a response from the agency to his "[N]otice and [D]emand" asserting a lack of "territorial jurisdiction." We also reject the child's contention that her objection would have been futile given the juvenile court's willingness to grant multiple continuances to accommodate the parties' requests during the preceding months and trail the hearing to allow father additional time to review the disposition report. Therefore, the child and father both forfeited their right to challenge the adequacy of the agency's report.
II. Granting of Family Reunification Services to Mother
Next, the child contends the juvenile court abused its discretion when it ordered that mother was to be provided family reunification services. She argues that mother failed to make reasonable efforts to treat the problem that led to the removal of the sibling and no best interest finding was explicitly made by the court.
A. Applicable Law
As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to "the child and the child's mother and statutorily presumed father" (§ 361.5, subd. (a)). However, it is also the "intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay." (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the child than discounting the competing goal of family preservation. (Ibid.) Specifically, section 361.5, subdivision (b), exempts from reunification services" 'those parents who are unlikely to benefit'" from such services or for whom reunification efforts are likely to be" 'fruitless.'" (In re Joshua M. (1998) 66 Cal.App.4th 458, 470, 474.)
A juvenile court may deny reunification services to a parent whose parental rights over any sibling have been permanently severed, and the parent has failed to make reasonable efforts to treat the problems that led to removal of the sibling. (§ 361.5, subd. (b)(11).) In order to deny reunification services"' "[t]he law . . . requires a finding that the parent has not made reasonable efforts to treat the problems that led to removal of the sibling." '" (In re Harmony B. (2005) 125 Cal.App.4th 831, 842, quoting Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1457.) "The inclusion of the 'no-reasonable effort' clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems." (Harmony B., at p. 842.)" 'If the evidence suggests that despite a parent's substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so.'" (Ibid., quoting Renee J., at p. 1464.) The" 'reasonable effort to treat'" standard does not mean that the parent must have cured the problem. (Renee J., at p. 1464.)
B. Standard of Review
When the party with the burden of proof fails to meet his or her burden, on that party's appeal the question "becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support [the] finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
C. Analysis
The child specifically contends that the juvenile court abused its discretion when it ordered reunification services to mother. However, the juvenile court made no findings that section 361.5, subdivision (b)(10) or (11) were applicable as to mother such that it was required to make an additional "best interest" finding under section 361.5, subdivision (c)(2). Thus, the child must demonstrate on appeal that the juvenile court was compelled to find that mother failed to make reasonable efforts to treat the problems that led to the sibling's removal.
Here, mother provided evidence that she participated in both counseling and courses on parenting, CPR training, child abuse intervention, and nutrition after the removal of the sibling. She articulated her willingness to do anything to reunify with the child when challenged by the juvenile court. Although, the child was removed at a few days old due to improper nutrition and medical care, it cannot be said that the juvenile court was compelled to find that mother's participation in services since the sibling's removal were not reasonable. Therefore, the juvenile court's refusal to apply the bypass provision to mother was not in error.
III. Denial of Family Reunification Services to Father
Father argues first that he was denied due process when the juvenile court ordered no family reunification services without prior notice. Father, however, did not raise this argument before the juvenile court. He also contends the juvenile court abused its discretion when it declined to provide him reunification services.
A. Applicable Law
"[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.] [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) This forfeiture rule is not absolute. Rather, it must not be applied if "due process forbids it." (In re Janee J., supra, 74 Cal.App.4th at p. 208.) Generally, the forfeiture rule does not infringe upon a parent's due process rights because of the numerous safeguards built into the dependency system. (In re M.F. (2008) 161 Cal.App.4th 673, 682.) Thus, application of the rule has only been found inappropriate on due process grounds when an error so "fundamentally undermined the statutory scheme" that the parent was prevented from availing him or herself of its protections. (In re Janee J., at p. 208.)
B. Standard of Review
If the juvenile court finds a parent falls within certain paragraphs of the bypass statute, including section 361.5, subdivision (b)(10) and (11), "[t]he court shall not order reunification for [that] parent . . . unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).) Moreover, in such a situation, it is the parent's burden to prove that the minor would benefit from the provision of court-ordered services. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
"A juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child under section 361.5, subdivision (c)." (In re William B. (2008) 163 Cal.App.4th 1220, 1229 (William B.).) The court abuses this discretion when there is insufficient evidence to support the court's finding or when the court fails to apply the correct legal standard in making the best interest determination. (See id. at pp. 1228-1229.)
"The best interest of the child is the fundamental goal of the juvenile dependency system, underlying the three primary goals of child safety, family preservation, and timely permanency and stability." (William B., supra, 163 Cal.App.4th at p. 1227; accord, In re Ethan N. (2004) 122 Cal.App.4th 55, 66 (Ethan N.) ["The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.' "].) The factors to consider include "a parent's current efforts and fitness as well as the parent's history"; "[t]he gravity of the problem that led to the dependency"; the relative strength of the bonds between the children and the parents and between the children and the care providers; and "the child[ren]'s need for stability and continuity." (Ethan N., at pp. 6667 [citing cases].) When a juvenile court bases its best interest finding on factors that are not relevant to the primary goals of the dependency system, the court applies the wrong standards and abuses its discretion. (See id. at p. 68; William B., at pp. 1228-1229.)
C. Analysis
In the present case, the agency initially recommended that mother and father both be denied family reunification services in its detention report. Although the agency's disposition report did not specify which dispositional outcome it was recommending, it did note the previous denial of services for both parents in the sibling's case. The juvenile court took judicial notice of the proceedings involving the sibling, and father was represented by counsel in the previous proceedings. At the outset of argument for the disposition, the agency's counsel noted the various options available to the juvenile court, and denial of reunification services was identified as a potential option for either parent. The child's counsel specifically requested that both mother and father be denied family reunification services. At no point did father argue he did not have notice that reunification services might be denied or that his due process rights were being violated, nor did he request a continuance to address the issue. Accordingly, he has forfeited his argument on review.
Even if we were to excuse father's forfeiture, we reject father's claim on the merits. After exercising jurisdiction over a child, "the court shall hear evidence on the question of the proper disposition to be made of the child." (§ 358, subd. (a).) Evidence the court shall consider includes "the social study of the child made by the social worker, . . . and other relevant and material evidence as may be offered." (§ 358, subd. (b)(1).) The "social study and copies of it [must be sent] to the clerk at least 48 hours before the disposition hearing is set to begin, and the clerk must make the copies available to the parties and attorneys. A continuance within statutory time limits must be granted on the request of a party who has not been furnished a copy of the social study in accordance with this rule." (Cal. Rules of Court, rule 5.690(a)(2); accord, § 358, subd. (a) ["[p]rior to making a finding required by this section, the court may continue the hearing on its own motion, the motion of the parent or guardian, or the motion of the child"].)
"Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford [the parent] adequate notice and an opportunity to be heard." (In re B.G. (1974) 11 Cal.3d 679, 688-689; see In re Marilyn H. (1993) 5 Cal.4th 295, 306.)
Contrary to father's argument, the juvenile court was not required to continue the hearing further than necessary for father to review the disposition report. Father merely requested adequate time to review the disposition report after he failed to follow the process for accessing the encrypted file. The juvenile court allowed father sufficient time to review the report, which contained relatively little new information about father due to his refusal to be interviewed for the social study. Father did not request additional time after the juvenile court trailed the matter to later in the afternoon. Furthermore, the proceedings were already far beyond the deadline to complete the hearing within 60 days since the child's removal, and the six-month time limit was quickly approaching.
Based upon this record, we find father was sufficiently notified of the possibility that he would be denied family reunification services from the outset of the proceedings. He had the opportunity to provide evidence and argument to rebut any findings that would lead to the denial of family reunification services. Instead, father was present for the disposition hearing and made the decision to repeatedly argue that the juvenile court lacked jurisdiction over him after the dependency petition had already been sustained. Therefore, father's claim of a due process violation is without merit.
Finally, father also contends the juvenile court abused its discretion when it denied him family reunification services. Specifically, he argues that the juvenile court failed to provide father a reasonable and accurate explanation of the reunification process. Father claims it was his impression that he would be conceding juvenile court jurisdiction and abandoning any opposition to the dependency process if he agreed to participate in the case plan.
On appeal, a trial court's determination will be upheld where the record supports the ruling even where the reviewing court upholds it for reasons other than those stated by the trial court for its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976.) We do not review the reasons for the juvenile court's decision but must affirm it if it is correct on any theory, even if its reasoning was erroneous. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330; J.B. Aguerre, Inc. v. American Guarantee &Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.) Thus, the juvenile court's awareness of an "apparent" misunderstanding by father is irrelevant to our ultimate decision.
The case of William B. is instructive, the reviewing court concluded the juvenile court "did not apply the correct standards when deciding whether reunification services would be in the children's best interests." (William B., supra, 163 Cal.App.4th at p. 1228.) There, the court found the offending mother had a history of chronic drug use and had resisted court-ordered treatment for the problem, but the court nonetheless concluded reunification would be in the dependent children's best interests because "the boys had both testified they loved [mother] and wanted to be with her." (Id. at p. 1226.) The William B. court concluded this was error, explaining: "Most significantly, the juvenile court did not consider the children's need for stability and continuity. The children had been removed from both parents' custody three times and from the mother's custody an additional time. Under these circumstances, at least part of the best interest analysis must be a finding that further reunification services have a likelihood of success. In other words, there must be some 'reasonable basis to conclude' that reunification is possible before services are offered to a parent who need not be provided them. [Citation.] But the juvenile court's own comments confirm our reading of the record: There is no substantial evidence to support the conclusion that [the children] will reunify with their mother, thereby achieving permanency and stability throughout the remainder of their childhoods." (Id. at pp. 1228-1229.)
In the present case, father had made no efforts to change his circumstances or participate in programs to remedy the problems that led to the removal of the sibling. Instead, father insisted that he had done nothing wrong and" 'live[d] the same.'" Throughout the proceedings father demonstrated a complete lack of insight into his responsibility for the severe and life-altering injuries that were sustained by the sibling while under his care. The child was removed from father's custody under similar circumstances where the child suffered from inadequate nutrition and dehydration. Unlike the child's mother, father expressed no desire to discuss potential services with the social worker prior to the disposition hearing.
Accordingly, the juvenile court could reasonably conclude that the provision of reunification services to father would prove fruitless given his current efforts and history. Under these circumstances, we find no error in the juvenile court's decision to not order reunification services to father under section 361.5, subdivision (c), and certainly no abuse of discretion.
DISPOSITION
The juvenile court's order is affirmed.
WE CONCUR: PENA, J. MEEHAN, J.