Filed 3/27/18 In re N.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re N.A. et al., Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

T.M.,

Defendant and Appellant.
D073201


(Super. Ct. No. J519571A-B)

APPEAL from orders of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
This appeal arises from a decision of the juvenile court to take jurisdiction over minor children A.A. and N.A. after finding A.A. suffered physical abuse while in the care of his father and paternal aunt and finding T.M. (Mother) was not capable of protecting the children without continued court supervision. Mother seeks reversal of the juvenile court's findings and orders. In doing so, she contends she should be deemed a "nonoffending parent" and not subject to the jurisdiction of the juvenile court. She also seeks remand with instructions to dismiss jurisdiction over her minor children, followed by dismissal of the first amended dependency petition. For the reasons explained below, we affirm the juvenile court's findings and orders in their entirety.
BACKGROUND AND HISTORY
Mother was deployed overseas when she received a telephone call September 12, 2017, from the San Diego County Health and Human Services Agency (the Agency) explaining it was investigating an allegation of physical abuse to her two-year-old son, A.A. Responding to a referral, the Agency had taken A.A. into custody after an emergency department doctor concluded A.A. suffered physical injuries that were nonaccidental and most likely inflicted. A.A. presented at the hospital with a three-inch, raised, red and purple circular bruise on his torso and a purple bruise on his right leg in the shape of lines that extended about eight inches, from his diaper to his knee. A pediatric physician, who was a member of the Center Child Protection Team, noted the pattern of bruising was consistent with being struck by a looped cord or belt and concluded the injuries were the result of physical abuse. Because A.A. had various bruising in different stages of healing, the Agency believed A.A. was physically abused on more than one occasion and not by accident.
The Agency's investigation revealed that A.A. sustained the most recent injuries while under the care of his father and his paternal aunt. A.A.'s father denied any accidental trauma or physical abuse and said he did not recall any incident or event that could explain the bruising. A.A.'s three-year-old sister, N.A., had no marks or bruises on her body.
Mother was cooperative on the phone and agreed not to allow the children's father or paternal aunt to care for the children or live in the home. She returned from deployment six days later, signed a safety plan, and agreed to move out of the home with her children if necessary. The Agency released the children to her the following day.
After initially agreeing the children's father and paternal aunt could not remain in the home, Mother later stated she did not believe the father or the paternal aunt inflicted the injuries and told the Agency she wanted them to remain in the home with her and the children. She said she had a hard time believing their father intentionally caused the injuries or was neglectful. Even after viewing color photographs of A.A.'s injuries, she said she did not know what to believe. Mother never acknowledged the injuries could have been inflicted by A.A.'s father or paternal aunt.
When the Agency explained the father had to leave so the children could be released to Mother to live in the family home, the father told the social worker to get the court involved. Mother initially moved out of the family home with her children because their father wanted to remain in the home. She eventually returned to the family home with the children, and their father and paternal aunt moved out.
The juvenile court held a hearing on jurisdiction and disposition in November 2017. At the jurisdiction hearing, the court determined A.A. was a dependent under Welfare and Institutions Code section 300, subdivision (b)(1), and N.A. was a dependent under section 300, subdivision (j). The court placed the children under the supervision of the Agency. After taking jurisdiction, the court adopted the recommendations contained in the Agency's jurisdiction and disposition report, removed the children from their father's custody under section 361, subdivision (c)(1), continued placement of the children with Mother, continued supervision by the juvenile court over the minors, and ordered family maintenance services for Mother and family enhancement services for the father.
DISCUSSION
I
Mother contends it was error for the court to assert jurisdiction based on a finding of her failure to protect because there was insufficient evidence she was unwilling or unable to protect her children. We disagree. The juvenile court properly asserted jurisdiction over the children, and there was substantial evidence on the record for the court to conclude Mother was unwilling or unable to protect her children.
A
In a dependency proceeding, the court determines if a minor is subject to one of the risks identified in section 300 and is therefore a dependent subject to the juvenile court's jurisdiction. (In re A.S. (2011) 202 Cal.App.4th 237, 244 (A.S.); In re Stephen W. (1990) 221 Cal.App.3d 629, 645.) "[T]he minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of dependent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397 (Alysha S.).) Juvenile courts assume jurisdiction over the children, not the parents; jurisdiction exists when the actions of either parent bring a child within one of the statutory definitions of a dependent. (In re J.C. (2014) 233 Cal.App.4th 1, 3 (J.C.).) "[T]he imposition of juvenile dependency must depend on the welfare of the child, not the fault or lack of fault of the parents." (In re Vonda M. (1987) 190 Cal.App.3d 753, 757.)
On appeal, we review jurisdictional and dispositional findings under the substantial evidence standard of review. (A.S., supra, 202 Cal.App.4th at p. 244.) Substantial evidence exists when the evidence is "reasonable in nature, credible, and of solid value," so that "a reasonable mind would accept [it] as adequate to support [the] conclusion." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard, "we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) The existence of evidence of some support for a contrary finding will not defeat the finding. (In re Manuel G. (1997) 16 Cal.4th 805, 823.)
As a preliminary matter, the juvenile court took jurisdiction over the minors, not Mother. (See J.C., supra, 233 Cal.App.4th at p. 3.) Jurisdiction over the children is proper because the actions of their father bring them within section 300. (J.C., supra, 233 Cal.App.4th at p. 3 [jurisdiction proper based on conduct of one parent]; Alysha S., supra, 51 Cal.App.4th at p. 397.) The court properly asserted jurisdiction over A.A. under section 300, subdivision (b) and over N.A. under section 300, subdivision (j) because of physical abuse to A.A. while Mother was deployed and the children were in their father's care.
Additionally, there is ample evidence to support the juvenile court's finding that Mother was unwilling or unable to protect her children. Mother did not believe the father could have inflicted the injuries even though he admitted that he and his sister were the only caretakers for A.A. at the time of the injuries. Mother continued to deny the father's responsibility even after seeing color photographs of the two year old's injuries. She has never acknowledged the father could be the perpetrator of A.A.'s injuries. Mother also seemed reluctant to have the father move out of the home, and the father initially refused to leave, directing the court to get involved.
A reasonable mind could easily view Mother's hesitation to have the father move out and her continued denial of his involvement in inflicting physical injuries as supporting the conclusion Mother was unable or unwilling to protect her children. Her failure to even acknowledge the father could have been the perpetrator of the injuries, particularly in light of the evidence the Agency presented her, further supports the conclusion Mother was unable or unwilling to protect her children, creating a risk of future harm to them.
B
Mother contends she has been labeled an "offending parent," which could prejudice her in the current or future dependency proceedings. This contention is unfounded. The juvenile court made no specific finding that Mother is an "offending parent."
The terms "offending" and "nonoffending" parent appear in section 361, subdivision (c), which relates to the children's placement. Section 361, subdivision (c)(1) provides two considerations for protecting a minor who cannot be safely left in the physical custody of a parent: removing the "offending parent" from the home and allowing a "nonoffending parent" to retain physical custody as long as the parent presents an acceptable safety plan. (§ 361, subd. (c)(1)(A) & (1)(B).) When a court removes a child under section 361, it determines whether there is a noncustodial parent with whom the child can be placed under section 361.2.
Neither of the terms "offending parent" or "nonoffending parent" appears in the text of section 361.2. (§ 361.2; see In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504, 1505 (Nickolas T).) Section 361.2, subdivision (a) directs the court to place a child with a parent "with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of child." (See Nickolas T., supra, 217 Cal.App.4th at p. 1504.) Under section 361.2, subdivision (b), if the court determines placement with the noncustodial parent is not detrimental, it determines whether there is a need for ongoing supervision. The court may order the noncustodial parent to assume custody subject to juvenile court's supervision and order services be provided to either or both parents. (§ 361.2, subd. (b)(3).)
This is precisely what happened here. Mother was deployed at the time A.A. sustained the physical injuries, making her a noncustodial parent who did not inflict the injuries or fail to protect A.A. from the injuries at the time they occurred. The juvenile court removed the "offending parent," their father, from the home. The court also determined placement with Mother would not be detrimental to the children as long as the father did not reside in the home. Additionally, because the court determined Mother was unwilling and unable to protect her children, the court continued supervision over the children, and it ordered compliance with family maintenance services. The finding that Mother was unable and unwilling to protect her children did not impact placement in the current proceedings, and Mother herself concedes any impact from the court's finding in this case is unlikely.
II
Though Mother states she is not challenging the dispositional orders of the juvenile court, she expressly requests we remand this matter with instructions to issue exit orders and dismiss the first amended dependency petition if we find an error concerning jurisdictional findings. Having affirmed the juvenile court's jurisdictional findings, we need not address the dispositional findings. However, we do so to note Mother has separately forfeited any challenge to them.
As a general rule, failure to object at the hearing forfeits the claim of error on appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) Mother did not just fail to object to the dispositional findings here; she expressly submitted to them. At the start of the hearing, Mother's attorney told the court, "It is our request that the court strike that particular line [regarding Mother's inability or unwillingness to protect her children]. And Mother would be willing to submit on any dispositional orders." Again at the end of the hearing, Mother's attorney stated, "Mother's more than happy to keep this case open and to continue with her services. The mother doesn't want to take any chances. So on that, we would submit." These statements forfeit any later challenge or claim of error.
DISPOSITION
The orders are affirmed.


HUFFMAN, Acting P. J.

WE CONCUR:




O'ROURKE, J.




IRION, J.