In re E.T.

Filed 12/24/09 In re E.T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jacqueline Lewis, Juvenile Court Referee. Affirmed.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________________

L.T. (father) appeals from the findings and orders of April 21, 2009 sustaining a subsequent petition under Welfare and Institutions Code section 342^[1](subsequent petition) and removing his daughter E.T. from his custody. He contends notice of the subsequent petition was defective and substantial evidence does not support the findings. We hold father forfeited his defective notice contentions and, in any event, notice was not defective. We further hold substantial evidence supports the findings. Accordingly, we affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE^[2]

E. was born in 2006 to I.C. (mother)^[3]and father, who were not married but lived together since 2005.^[4]In 2003, on several occasions, father attempted by use of force to insert his erect penis into his ten-year-old cousins vagina.^[5]

Mothers three daughters from a previous relationship lived with the family. Father spent family money drinking with his friends.

In 2007, mother was convicted of child cruelty for physically abusing the youngest half-sibling and was ordered to stay away from that child for one year. The family court awarded custody of the three half -siblings to their father.

Father failed to comply with a voluntary family maintenance plan that the parents entered into in October 2007 to insure E.s safety in the home under supervision by the Department of Children and Family Services (the Department). Another plan, made in May 2008, failed, because father did not enroll in sexual abuse counseling.

A section 300 petition was filed July 1, 2008, and E. was detained from parental custody two weeks later. At the detention hearing on July 14, 2008, father provided the dependency court with an address in Bell Gardens as his permanent mailing address. The dependency court advised father: If you move from that address, you need to notify your attorneys, this court, and the Department . . . in writing of your change of address. If you fail to do that[,] notices could be sent to that address, you would not be aware of your childs court date, and the matter can proceed in your absence. [] These matters can continue all the way up until the time when we are determining the best permanent plan for your child, which could include the termination of your parental rights, bringing the child for adoption, so its important that you keep everyone advised of your current address and phone number.^[6]

On September 18, 2008, E. was declared a dependent of the court, based on the following sustained allegations under section 300, subdivisions (a) and (d): on July 02, 2007, mother physically abused E.s half-sibling, which placed E. at risk of physical abuse; on July 21, 2003, and prior occasions, father sexually abused his cousin, age 10, by attempting to insert his penis into her vagina, which placed E. at risk for sexual abuse. Custody was not taken from the parents. The order allowing father to retain custody of E. was conditioned on his participating in sexual abuse counseling. The dependency court ordered family maintenance services. The matter was continued to March 18, 2009, for a six-month review hearing under section 364.

Father appealed the dependency judgment and orders. We affirmed. (In re E.T. (June 9, 2009, B211012) [nonpub. opn.].)

Father enrolled in sexual abuse counseling in late October 2008. The program consisted of three phases, each approximately 16 weeks in length. As of February 2009, father was in the first phase. Father was the primary breadwinner of the family.

On February 14, 2009, father was arrested for driving under the influence. He drove erratically and unsafely, walked with an unsteady gait, and had an alcohol level of .11. Despite consuming six to eight beers, he thought he was sober enough to drive. He admitted he regularly drank a 12-pack of beer once a week, but denied he had a drinking problem. He spent every Saturday at his uncles house, drinking so heavily that he could not return home until Sunday afternoon. A court hearing on the criminal charge was scheduled for March 12, 2009. He stated he feared he would be deported. He fled the jurisdiction prior to the criminal court hearing. Mother stated she was told by fathers relatives he was in Guadalajara, Mexico. She did not know his address. Father last attended the sexual abuse counseling program on February 26, 2009. He did not attend any dependency hearings after he fled to Mexico.

The section 364 in-home review hearing, scheduled for March 18, 2009, was trailed to March 24, 2009, for the Department to file a petition concerning the new allegations against father. On March 23, 2009, a subsequent petition^[7]was filed. Notices of the petition and detention hearing were mailed to father at his Bell Gardens address, which was his last known address, pursuant to section 316.1.^[8]

On March 24, 2009, E. was ordered detained from father, but was not detained from mother. The matter was continued to April 21, 2009, for the section 364 hearing and a pretrial resolution conference on the subsequent petition. The Department did not know where father currently resided. Stating that information in the social workers report indicated father might be residing in Mexico, fathers attorney asked that notice to the father be made pursuant to [T]he Hag[ue] Convention[^[9]] and the Mexican Consulate. The dependency court granted fathers request: Absolutely. Give me the address, otherwise fathers address is in Bell Garden, California. [] . . . [] . . . [T]he Department is to notice him at his [section] 316.1 address. If you get an address outside of the country, Ms. Yoo [fathers attorney], provide it to the social worker and the court and Id be happy to order appropriate notices to that address. Counsel did not object to this ruling or ask the dependency court to order the Department to conduct a search to locate father in Mexico.

On April 13, 2009, notice of the April 21, 2009 hearing was mailed to father at his Bell Gardens address.

On April 21, 2009, the dependency court found notice of the subsequent petition hearing was given as required by law to father at his address pursuant to section 316.1. Fathers attorney did not object to the notice finding or to adjudicating the subsequent petition without the Department undertaking a search for father or attempting service under the Hague Convention.^[10] Counsel was given an opportunity to object to the evidence, cross-examine the Departments witnesses, call witnesses, and argue. Counsel conceded father was drinking and arrested for driving under the influence and had not attended sexual abuse counseling since February 26, 2009. Counsel argued the allegations of the petition should not be sustained because fathers criminal case was still pending and father had not been terminated from his sexual abuse counseling program. The dependency court sustained the following allegations against father under section 300, subdivision (b): there is a substantial risk E. will suffer serious physical harm or illness in that father is a current abuser of alcohol, was arrested for driving under the influence on February 14, 2009, and failed to regularly participate in court-ordered child sexual abuse perpetrator counseling. E. was ordered removed from fathers custody, and father was ordered to remain in the child sexual abuse program and to participate in an alcohol rehabilitation program. E. remained placed in home-of-parent-mother. Father, through his counsel, timely appealed the orders. Concerning the matter of notice to father, the dependency court stated: I mentioned this previously that the father was provided the [section] 316.1 admonition. The court informed him that he needed to advise his attorney, the court and the [Department] of his new address and that address that he gave was the one that he would receive all future notices and in fact these matters could proceed up to a time where parental rights are terminated and child freed for adoption and the notice would go to that address. [] The father has not notified either the Department, the court or his attorney of his change of address. The court continues to proceed as the [section] 316.1 notice was given. No due diligence is required by either case law or statutory law.

DISCUSSION

Notice

A. Father Forfeited His Contentions

Father contends that serving him with notice of the subsequent petition hearing at his Bell Gardens address violated due process, because the Department did not undertake a reasonable search to locate him in Mexico, and service by first-class mail violated section 291^[11]and the Hague Convention. As fathers counsel participated in the subsequent petition hearing on fathers behalf without objecting on these grounds, the contentions are forfeited. Ordinarily, a [party] who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal. . . . [No] procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citations.] (In re Sheena K. (2007) 40 Cal.4th 875, 881; see also In re B. G. (1974) 11 Cal.3d 679, 685, 689 [where parent, who resided in Czechoslovakia, appeared through counsel and counsel proceeded on her behalf without objecting that she had not been given due process notice, mother forfeited the objection]; In re P.A. (2007) 155 Cal.App.4th 1197, 1999 [failure to object that a due diligent search was not conducted, where statute required the search, forfeited the objection]; In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.].)

We reject fathers contention that his failure to object to notice at the hearing is excused by futility. He claims counsel twice previously raised the issue of a search and the dependency court denied the requests.^[12] The record belies the claim. At the detention hearing on the subsequent petition, fathers sole request was for service in Mexico under the Hague Convention. He did not object when the dependency court granted the request with the caveat that counsel advise the Department where to serve father. At the jurisdiction hearing, he made no request for a search. He simply never raised the issue of a search and never objected to notice on this or any other ground. As father never requested a search be undertaken in Mexico and never objected to notice, we disagree with fathers contention that an objection to notice would have been futile.

Moreover, fathers objections to notice rest on the spurious premise that he wanted to be found and, had he been found, he would have contacted his attorney or appeared in person. The premise is groundless speculation. Father abandoned his child and fled the jurisdiction to elude the criminal justice and immigration authorities. He did not maintain contact with his attorney, mother, his daughter, or the Department. With knowledge of the upcoming dependency review hearing, he did not contact his attorney to give instructions or learn the result. His conduct demonstrates father did not want to be located. As he did not want to be found, we conclude his failure to object to the lack of a search is because he did not want a search.

To the extent that father contends forfeiture does not apply because the issue is a pure question of law on undisputed facts, we reject the contention. Even if a search was required, what foreign search was practicable to undertake and what notice was practicable and due are issues that rest on the facts and circumstances of the case. The dependency court is in a better position than the appellate court to review and resolve the issues. Applying the forfeiture rule to such issues promotes greater procedural efficiency because of the likelihood that the case would have to be remanded to the trial court for . . . reconsideration. (In re Sheena K., supra, 40 Cal.4th at p. 885.)

B. No Search Was Required

In any event, due process did not require a due diligent search in Mexico before adjudicating the subsequent petition, because father had notice of the dependency proceedings and the dependency court previously advised him, pursuant to section 316.1, subdivision (a), that he was responsible for notifying the social worker or court of any new address for notice purposes. (See In re Raymond R. (1994) 26 Cal.App.4th 436, 441; In re Rashad B. (1999) 76 Cal.App.4th 442, 450.) Father cites no authority for the proposition that, where a parent has notice of the proceedings, designates his permanent mailing address for notice purposes, and is ordered to keep the social worker and court informed of any change in address, a due diligence search must nonetheless be made for him when a subsequent petition is filed if his whereabouts become unknown. Having been located at the outset and expressly ordered to inform the social worker of any change of his notice address, father cannot blame the dependency court for the consequences of his disappearance. Once a parent has been located, it becomes the obligation of the parent to communicate with the [court and the social worker]. (In re Raymond R., supra, at p. 441.)

C. Harmless Error

Any error in failing to order a search for father is harmless under any standard of harmless error. Structural error analysis does not apply. (See In re James F. (2008) 42 Cal.4th 901, 916-917, 918 [If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required.].)

Citing an exhibit attached to the opening brief, Protocol of Cooperation between the Consulate General of Mexico in Los Angeles, California, and the Los Angeles Juvenile Dependency Court, father contends the Mexican Consulate would have cooperated in locating father if requested by the dependency court. This document was not submitted to the dependency court. Matters not presented by the record cannot, of course, be considered on the suggestion of counsel in briefs or in affidavits attached thereto. (People v. Szeto (1981) 29 Cal.3d 20, 35 [exhibit attached to opening brief].) Father does not request we take judicial notice of this unsigned and uncertified document. Further, the protocol does not state that the Mexican Consulate agrees to cooperate in locating Mexican nationals residing in Mexico.

In any event, as we discussed above, even if father had been located, the record indicates that provision of notice to him would not have secured his presence at the hearing or his input to his attorney. Moreover, there is no possibility the outcome of the hearing would have been more favorable had the Department conducted a search for father. Father admitted he was arrested for driving while under the influence after he had consumed eight beers prior to getting behind the wheel, and it is undisputed he dropped out of his sexual abuse counseling program, as alleged in the sustained petition. Pursuant to the disposition of the section 300 petition, E. was placed in his custody on condition he participate regularly in sexual abuse counseling. His flight to Mexico dictated the result of removal of E. from his custody.

Substantial Evidence Supports the Findings

Father contends substantial evidence does not support the sustained allegations of the subsequent petition under section 300, subdivision (b). We disagree with the contention.

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. [Citation.] (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)  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. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)

Section 300, subdivision (b), describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of the failure or inability of [the] parent or guardian to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent . . . to provide regular care for the child due to the parents . . . substance abuse.

While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subjected the minor to the defined risk of harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) A past infliction of harm may establish a substantial risk of harm if there is some reason to believe the acts may continue in the future. . . . [Citations.] (Ibid.)

Father regularly drank a 12-pack of beer a week and drank to excess every weekend. He recently was arrested for driving while inebriated. He had consumed eight beers and mistakenly believed he was sober. He denied he had a problem with alcohol. These facts are substantial evidence of a chronic and ongoing alcohol abuse problem, as alleged in the petition. A dependency court need not wait until the child has been seriously harmed by the parents abuse or neglect before it assumes jurisdiction to protect the child. (E.g., In re Heather A., supra, 52 Cal.App.4th at p. 194.) The fact that father, who was the primary breadwinner of the family, abandoned his child rather than face the consequences of his alcohol problem lends further support to the finding his drinking created a risk of serious harm and neglect.

The evidence also undisputedly supports the sustained allegation that father did not participate regularly in a court-ordered sexual abuse counseling program: he dropped out after completing only one-third of it. He was ordered into the program because he sexually molested his young cousin. His failure to comply with the program indicates he was not rehabilitated and supports the sustained allegation that E. was at substantial risk of suffering serious physical harm as a result of infliction of sexual abuse by father. We reject fathers contention this allegation failed to establish a new basis for jurisdiction under section 342. The basis of jurisdiction in the initial petition was section 300, subdivisions (a) and (d); but the basis of jurisdiction in the subsequent petition was section 300, subdivision (b).

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[2] Much of the factual and procedural background is taken from our nonpublished opinion in In re E. T. (June 9, 2009, B211012).

^[3] Mother did not appeal.

^[4] Father is E.s presumed father.

^[5] Criminal charges were rejected by the district attorney.

^[6] Father erroneously states that this advisement was not given to him.

^[7] Section 342 provides: In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition.

^[8] Section 316.1, subdivision (a) provides: Upon his or her appearance before the court, each parent or guardian shall designate for the court his or her permanent mailing address. The court shall advise each parent or guardian that the designated mailing address will be used by the court and the social services agency for notice purposes unless and until the parent or guardian notifies the court or the social services agency of a new mailing address in writing.

^[9] The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters Done at the Hague, the Netherlands, November 15, 1965, 658 U.N.T.S. 163 (Hague Convention).

^[10] Counsel stated: Based on the jurisdiction report, it appears that the father is not living in the U. S. and the court is not going to order a due diligence on the father and I have not had any contact with my client either. [] If the court would like to proceed today to the adjudication, or set a date for it. The court proceeded with the adjudication.

^[11] Section 291 provides the manner of service of notice of the jurisdiction/disposition hearing on a section 300 petition. ( 291, subd. (e).) If the child was detained and the parent was not present at the detention hearing, notice must be by personal service or certified mail, return receipt requested. ( 291, subd. (e)(1).) Section 297, subdivision (a) provides that [n]otice required for an initial petition filed pursuant to section 300 is applicable to a subsequent petition filed pursuant to section 342.

^[12] Father does not argue that futility excused his failure to raise the statutory and the Hague Convention issues.