In re N.L.
Filed 7/9/13 In
re N.L. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
In re N.L. et al., Persons Coming
Under the Juvenile Court Law.
H039116
(Santa Clara County
Super. Ct. Nos. JD21215, JD21216)
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN’S SERVICES,
Plaintiff and
Respondent,
v.
C.L.,
Defendant and
Appellant.
C.L. (Mother),
appeals from the dispositional order in this dependency case. The juvenile court declared the children
(N.L. and X.L.) dependents of the court (Welf. & Inst. Code, § 300)
and ordered them placed in a foster home.
Mother
contends the juvenile court erred by failing to offer her reasonable
reunification services, including visitation, and by placing the children in a
foster home outside the county without following proper procedures. Mother also contends one of the allegations
of the section 300 petition concerning X.L. was not supported by substantial
evidence. For the reasons explained
below, we will affirm the juvenile court’s dispositional order.
Background
A. Section 300 Petitions and
Initial Reports
On May 11,
2012, the Santa Clara County Department of Family and Children’s Services
(Department) filed petitions alleging that the children fell within the
dependency jurisdiction of the juvenile court under section 300, subdivision
(b) [failure to protect] and section 300, subdivision (c) [serious emotional
damage]. At the time, N.L. was almost
three years old and X.L. was about one and a half years old.
The
Department filed an initial hearing report on May 14, 2012, a first amended
section 300 petition on June 1, 2012, and a jurisdiction report on June 21,
2012. The petitions and reports alleged
the following facts.
1. Mother’s Criminal and
Psychiatric History
Mother was
diagnosed with schizophrenia at age 16.
In 1995, Mother’s two-year-old child, N.M., was removed from her custody
and placed with his father due to her mental health problems and her inability
to provide appropriate and adequate care for him.
In 2003,
Mother was convicted of battery on emergency personnel. (Pen. Code, § 243, subd. (c)(1).) In 2005, she violated the conditions of her
parole by committing assault with a deadly weapon, driving without a license,
reckless driving with injury, and assault on an emergency room staff member.
Mother was
committed to Patton State Psychiatric Hospital (Patton) on July 9, 2010 after she
drove on the wrong side of the road and tried to kill herself and N.L., who was
in the car. She was diagnosed with
schizoaffective bipolar disorder NOS, alcohol dependence, and cocaine
dependence. Mother was pregnant with
X.L. while at Patton, and she refused to take her antipsychotic medication
because of her pregnancy. As a result,
she was paranoid and delusional. Also
while at Patton, Mother attacked another patient. Mother was released from Patton on November
2, 2011, to a Conditional Release Program (CONREP) in Fresno.
2. Father’s Criminal and
Psychiatric History
The
children’s father, D.L. (Father), had a criminal history that included
providing false identification, robbery, burglary, grand theft, willful
discharge of a firearm in a negligent manner, possession of a controlled
substance, and battery by a prisoner. In
2000, following the battery by a prisoner, Father was found not guilty by
reason of insanity and sent to Atascadero State Psychiatric Hospital
(Atascadero).
N.L. lived
with Father after Mother’s commitment to Patton in July 2010, until Father
himself was arrested and returned to Atascadero in December of 2010. At that point, N.L. went to live with
Mother’s sister, S.R., who had been caring for X.L. since his birth. S.R. soon became the children’s legal
guardian.
3. Children’s Placement and
Behavioral History
On April
20, 2011, N.L. was diagnosed with an adjustment disorder, mixed
receptive-expressive language disorder, and delayed development in several
skill areas. He was also diagnosed with
being deaf in one ear. He exhibited
“overly aggressive behaviors†and received services from several providers.
In March of
2012, someone reported that the children were being abused while in the care of
S.R., the legal guardian. S.R. agreed to
participate in Voluntary Family Maintenance services “to address the children’s
special emotional and behavioral needs.â€
However, S.R. subsequently decided to terminate the guardianship “due to
alleged threats and harassment from maternal relatives.†As a result, on May 9, 2012, the children
were placed in protective custody. On
May 25, 2012, the Department filed a motion to terminate the legal
guardianship.
B. Jurisdictional Hearing and
Transfer
The
Department’s jurisdiction report, dated June 5, 2012, indicated the children
were in a confidential Emergency Satellite Home placement. The Department requested that the court find
the allegations of the section 300 petition true, terminate the legal guardianship,
and transfer the matter to Fresno County for disposition, since that was the
location of Mother’s CONREP facility.
Father was still in custody at Atascadero at the time.
At the time
of the jurisdictional hearing on June 21, 2012, the children were still living
in a confidential Emergency Satellite Home placement. Mother and Father were both represented by
counsel, and Father was personally present.
The court found the allegations of the section 300 petition true – i.e.,
that both children fell within the dependency jurisdiction of the juvenile
court under section 300, subdivision (b) [failure to protect] and section 300,
subdivision (c) [serious emotional damage]. The court terminated the legal
guardianship, and it ordered the children transported to Fresno County within
seven court days.
The Fresno
County juvenile court acknowledged receipt of the children’s records on July 2,
2012. The transfer-in hearing was
continued several times. The minute
order from a hearing on July 26, 2012 noted that Mother was present and that
she would be entering a residential treatment program in San Joaquin
County. During an ex parte hearing on
August 20, 2012, the Fresno County juvenile court accepted the transfer, but
the next day, it transferred the matter back to Santa Clara County.
In a report
dated September 19, 2012, the Department noted that the children were “in an
out of county placement in Bakersfield.â€
The report indicated that Mother was residing either at the CONREP
facility in Fresno or at a residential treatment program in San Joaquin County. The report indicated that Father was in a
conditional release program in San Diego County.
On
September 19, 2012, the juvenile court held a transfer-in hearing. Neither Mother nor Father were personally
present, but both were represented by counsel.
The court continued the dispositional hearing to October 12, 2012.
In an
addendum report dated October 12, 2012, the Department notified the court that
Mother had been sent to Napa State Hospital.
Mother had requested to see the children. The social worker requested a continuance to
determine whether a visit was possible in light of Mother’s mental health
issues and the fact she remained at Napa State Hospital. Father was still living in San Diego County.
The
Department also reported on the children’s placement, stating that they were
“making excellent progress in the care of the foster parents.†The report described how N.L.’s speech had
improved so that he could communicate better and how X.L. had “a lot fewer
tantrums.â€
C. Pre-Disposition Hearings
At the
October 12, 2012 hearing, Mother and Father were not personally present but
both were represented by counsel. The
Department reiterated its requests that the dispositional hearing be continued
so the social worker could try to set up a visit between Mother and the
children at Napa State Hospital.
The
children’s attorney was “adamantly opposed to visitation,†noting the children
were “extremely young†and had “special needs.â€
She further noted that X.L. had never been in Mother’s care, and that
neither child had any relationship with Mother and might not “even know she
exists.†The children’s attorney
referred to Mother’s psychiatric and criminal history, emphasizing that it
included violent behavior. She stated,
“this isn’t family reunification.â€
The
Department noted that it was responsible for determining whether any services
were appropriate. The juvenile court
agreed that the social worker should perform further investigation and stated
that it did not have “enough information to feel that the visits would
currently be safe.†The court indicated
it was interested in whether the foster parents believed that the children
could “absorb such a visit,†noting that it would be “a long trip there and back.†The court also expressed reservations about
whether Napa State Hospital offered any way to supervise visitation at its
facilities.
Mother’s
counsel noted that in order to deny visitation at disposition, the court would
need to “make a detriment finding.†The
court agreed and reiterated that it did not have “enough information right now
to make any of those assessments.â€
However, it again expressed doubt about whether visitation would be
appropriate in light of Mother’s mental health issues and the children’s
fragility.
The court
continued the dispositional hearing to November 2, 2012. On that date, the children’s attorney
requested a continuance. She had
received a “recommendation for family reunification for both parents†and had
“some concerns,†so she wanted time to look into grounds for a bypass of
reunification services. The
dispositional hearing was continued again, to November 14, 2012.
On November
14, 2012, neither Mother nor Father appeared, but both were represented by
counsel. Father had moved to a board and
care in San Francisco. The juvenile
court noted that the issue of visitation was contested. The court also noted it still did not know
what rules Napa State Hospital had regarding visitation. The court put the matter over until December
12, 2012 “for more information and trial setting and [early resolution
conference].â€
D. Disposition Reports
The
Department submitted a disposition report dated November 2, 2012, recommending
that the juvenile court order psychological evaluations of both parents to
determine whether reunification services should be bypassed. The Department recommended that Mother have
supervised visitation at least once a month, but it noted that if visitation
was ordered for Mother at Napa State Hospital, it “would need to be arranged in
a secure location.†According to the
disposition report, the social worker had interviewed Mother at Napa State
Hospital and had referred her to Parent Orientation and Parent Education. Mother had indicated that she “would like to
do an open adoption.â€
In an
addendum report dated December 12, 2012, the social worker changed her
recommendation, now stating that “it would be detrimental†for the children to
visit Mother. The social worker based
her opinion on “the extremely long trip from Bakersfield,†“the children’s
level of anxiety,†and the fact that “the children have not asked for their
birth parents.†However, the social
worker noted that it was “possible†to have visitation at Napa State Hospital,
and she described the process for setting up a visit at the facility.
The social
worker noted that the children’s foster parents had been working with a
therapist who had directed them to structure routines for the children. Maintaining a “regular, familiar daily
schedule and routine†had helped the foster parents earn the children’s trust
and provide the children with a sense of security. This had helped the children “heal from the
lack of permanence†in their lives. The
social worker believed that visits with Mother and Father “would und[o] all the
work that the foster parents have done.â€
In addition, the social worker noted that the trip to Napa would take at
least five hours and that the children had previously begun to “cry
incessantly†after a car ride of two and a half hours.
The social
worker stated that even telephone contact with Mother and Father would be
confusing for the children. The children
had “bonded with the foster mother and father and believe that this is their
family and home.â€
A letter
from the foster parents was attached to the addendum report. The foster parents described the children’s
initial anxiety about whether they were going to stay at the foster home or be
moved again. N.L. would wake up six to
eight times each night, “coming into our room just to make sure we were
there.†He was also “rarely sleeping
during naptime, likely due to his high levels of anxiety and constant hyper
vigilance.†The foster parents had
adjusted N.L.’s sleeping arrangements and he was finally getting uninterrupted sleep. However, on a daily basis, N.L. still asked
the foster parents “if this is his home,†and every time they left the house he
asked “if he is coming back.â€
The foster
parents explained that they were keeping “a very structured and routine
schedule, which both boys seem to find comforting and calming.†Changes to the routine often caused N.L.
anxiety and poor behavior. X.L. did not
have anxiety to the same degree, but he was “very cautious of new people.†Both children exhibited separation anxiety
when the foster parents were gone.
The foster
parents reported that neither of the boys asked or talked about their birth
parents. The foster parents believed
that the boys needed “a tie to their birth family so that in time they can
learn more about themselves,†but did not believe that visits with Mother and
Father would be in the children’s best interests at that time. The foster parents opined that “exposure to
family members in new settings would cause them a lot of anxiety and damage the
trust we have been able to help them build.â€
E. Dispositional Hearing
On December
12, 2012, mother appeared in court for the dispositional hearing.
Mother told
the juvenile court that she was “in disagreement†with the Department’s
recommendation that she undergo psychological evaluations and have no contact
with the children. Mother requested the
court order reunification services including “parenting classes and other such
services that . . . would genuinely help her to reunify with her children.†When the court asked Mother to be specific
about what she was contesting, Mother responded, “it’s the case plan and the
visits.†After a further discussion,
Mother agreed to the psychological evaluations and agreed the court could
reserve the issue of “a more complete case plan.â€
Mother
requested the juvenile court order visitation while the psychological
evaluations were pending. The court
denied Mother’s request, saying, “I can’t do that without a hearing. . . . I mean, right now there is evidence regarding
that being a detriment to the children at this time.†The court offered Mother the opportunity to
have “a hearing on visitation prior to the evaluations,†but reiterated that it
did not believe the evidence supported a visitation order.
Mother’s
attorney responded that Mother “understands where the Court’s coming from and
would just ask that there could be some correspondence with letters and
photographs if they’re appropriate.â€
After a brief further discussion, Mother’s attorney reiterated that
Mother was agreeing to “going forward today with disposition†and that Mother
wanted “the opportunity for correspondence while participating in the
evaluations to look at what services might benefit [her] as well as what
visitation should look like.â€
The
juvenile court adjudged the children wards of the court, finding that removal
was necessary and that the children’s current placement was appropriate. The court ordered “services from the family
reunification program†and “adopt[ed] the limited case plan†that the Department
had recommended – that is, the psychological evaluations. The court reserved jurisdiction over the case
plans and visitation until after it received the psychological
evaluations. The court ordered that the
social worker facilitate correspondence between the parents and the children
through the children’s therapist.
The
juvenile court set an interim review date of February 11, 2013 for receipt of
the psychological evaluations, and it set a six-month review hearing for June
12, 2013.
Discussion
A. Reunification Services
Mother
contends the juvenile court failed to offer her reasonable reunification
services in the case plan it adopted at the dispositional hearing. She claims she was entitled to receive
reunification services in addition to the psychological evaluations, including
visitation.
1. General Principles
In the
dispositional order, the juvenile court is generally required to provide
reunification services if the child is removed from a parent’s or guardian’s
custody. (Cal. Rules of Court, rule
5.695(h)(1);
title="">[4]
§ 361.5, subd. (a).) However,
reunification services may be bypassed if the court finds, by clear and
convincing evidence, that the case involves one or more of the circumstances
listed in section 361.5, subdivision (b).
(See rule 5.695(h)(6).)
One of the
grounds for bypassing reunification services is “[t]hat the parent or guardian
is suffering from a mental disability . . . that renders him or her incapable
of utilizing those services.â€
(§ 361.5, subd. (b)(2).) Before the court can bypass reunification
services on this ground, there must be “competent evidence from mental
health professionals establish[ing] that, even with the provision of services,
the parent is unlikely to be capable of adequately caring for the child within
the time limits specified in subdivision (a).â€
(§ 361.5, subd. (c).)
Reasonable
reunification services are required even for parents who are incarcerated or
institutionalized, “unless the court determines, by clear and convincing
evidence, [that] those services would be detrimental to the child.†(§ 361.5, subd. (e)(1); see also rule
5.695(h)(13).) However, when a parent is
incarcerated or institutionalized, reunification services may only include
visitation where “appropriate†(§ 361.5, subd. (e)(1)), and visitation
should be denied if it would be detrimental to the child. (See In
re Dylan T. (1998) 65 Cal.App.4th 765, 775 (Dylan T.).)
The
reasonableness of reunification services is “judged according to the
circumstances†of the case. (
1352, 1362 (Ronell A.).) “The standard is not whether the services
provided were the best that might be provided in an ideal world, but whether
the services were reasonable under the circumstances.†(In re
Misako R. (1991) 2 Cal.App.4th 538, 547 (Misako R.).)
On appeal, we
apply the substantial evidence test to the question of whether reunification
services were reasonable. (
1362-1363.) We also apply the
substantial evidence test to the question of whether visitation would be detrimental
to the child. (See Dylan T., supra, 65 Cal.App.4th at p. 775.) Thus, in addressing those questions, we “view
the evidence in a light most favorable to the respondent†and “indulge in all
legitimate and reasonable inferences to uphold the verdict.†(Misako
R., supra, 2 Cal.App.4th at p.
545.)
2. Failure to Order Additional
Services
Mother
contends that she should have been offered specific reunification services in
addition to the psychological evaluations.
She argues that she was entitled to services that would actually aid her
in reunifying with the children during the interim.
Respondent
contends that Mother forfeited this claim because she consented to the juvenile
court’s decision to order the psychological evaluations and reserve jurisdiction
over the rest of the case plan. We
disagree. At the dispositional hearing,
Mother contested the Department’s recommendations, stating she was “in
disagreement,†and she requested reunification services, including “parenting
classes and other such services that . . . would genuinely help
her to reunify with her children.†Thus,
she did not forfeit this issue for appeal.
(See In re Javier G. (2006)
137 Cal.App.4th 453, 464 (Javier G.).)
In
addressing the merits of this issue, both parties discuss this court’s decision
in Sheila S. v. Superior Court (2000)
84 Cal.App.4th 872, 881 (Sheila S.). In Sheila S., the juvenile court took
jurisdiction over three children after finding that the mother placed the
children at risk by allowing them to have unsupervised contact with their
grandfather, a registered sex offender who had sexually abused the mother when
she was a child. (Id. at p. 875.) The juvenile
court ordered psychological evaluations of the mother, but the evaluations were
not completed by the time of the disposition hearing. Thus, at the dispositional hearing, “[t]he
juvenile court ordered out-of-home placement of the children and reunification
services for mother,†then set a review hearing for receipt of the
psychological evaluations. (
388 petition to modify the disposition, and the court terminated reunification
services based on the results of the psychological evaluations. On appeal, the question was whether “a
section 388 petition is an appropriate vehicle for modifying a dispositional
order and ordering a bypass of reunification services.†(Id. at p. 879.)
Mother
claims that the juvenile court should have ordered reunification services
pending the results of the psychological evaluations, as the court ordered in
S. did not consider whether reunification services were required pending
the results of psychological evaluations.
In fact, as the opinion only makes a passing reference to “reunification
services for mother,†it is unclear what kind of reunification services were
ordered in that case. (Sheila
S., supra, 84 Cal.App.4th at p. 876.)
Thus, Sheila S. does not
support Mother’s claim that she was entitled to receive any particular
reunification services while the psychological evaluations were pending.
Under the
circumstances of this case, the juvenile court’s decision to order
psychological evaluations and reserve jurisdiction over the rest of the case
plan was reasonable. (See
547.) The juvenile court could not
determine whether Mother could even utilize reunification services until it
received the psychological evaluations.
(§ 361.5, subd. (c); see Linda B.
v. Superior Court (2001) 92 Cal.App.4th 150, 152-153.) In light of Mother’s mental illness and the
evidence of how it had impacted her ability to provide adequate and appropriate
care for the children, the juvenile court reasonably reserved jurisdiction over
the question of services until after receiving the psychological evaluations.
Moreover,
on this record, the juvenile court could have denied reunification services
altogether on the basis that Mother was institutionalized and reunification
services would be “detrimental to the child†within the meaning of section
361.5, subdivision (e)(1). The children
were both very young and had no current bond with Mother. (See § 361.5, subd. (e)(1) [detriment
factors include “the age of the child†and “the degree of parent-child
bondingâ€].) Mother was institutionalized
for an indeterminate period of time and had a lengthy history of mental illness
and violence, which presented a risk to the children’s safety. (See ibid.
[detriment factors also include “the length of the sentence†and “the nature of
the crime or illnessâ€].) Under the
circumstances, substantial evidence would have supported an order denying
reunification services to Mother. (See,
e.g., Nickolas F. v. Superior Court (2006)
144 Cal.App.4th 92, 119 [reunification services would be detrimental to children
because of anticipated length of the father’s incarceration, “his minimal
contact with the children before he was incarcerated,†and the risk he posed to
their safety because of his history of abusive acts].) However, rather than deny reunification
services on this basis, the juvenile court “adopt[ed] the limited case planâ€
that the Department had recommended – that is, the psychological evaluations –
and it reserved the question of whether to order additional services until
after it received the psychological evaluations. This procedure ensured that Mother could be
offered reunification services at a later date.
3. Failure to Order Visitation
Mother
contends the juvenile court erred by failing to order visitation pending the
results of the psychological evaluations.
Respondent
contends that Mother forfeited this claim for appeal. We disagree.
At the dispositional hearing, Mother specifically requested the juvenile
court order visitation pending the psychological evaluations. The court denied her request, stating that it
could not order visitation without a hearing because there was evidence of
“that being a detriment to the children at this time.†Because Mother contested the
recommendation of no visitation, she did not forfeit the issue for appeal. (See Javier
G., supra, 137 Cal.App.4th at p. 464.)
Although
Mother did not forfeit her challenge to the order of no visitation, substantial
evidence supports the juvenile court’s finding that visitation would be “a
detriment to the children at this time.â€
(See Dylan T., supra, 65
Cal.App.4th at p. 774; see § 361.5, subd. (e)(1)(A).)
A finding
that visitation would be detrimental may be based in part on the distance
between the parent’s institution and the child’s placement. (In re
Jonathan M. (1997) 53 Cal.App.4th 1234, 1238 [“distance is a factor to be
considered in the analysisâ€], disapproved on other grounds by
413-414.) An order failing to provide
visitation, but allowing contact through telephone calls and letters “may well
be appropriate where the parent is incarcerated some distance from where the
minor resides.†(In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407, fn. 8 (
1774, 1791-1792 [denial of visitation could have been justified by the fact
that mother was institutionalized in a hospital that was “geographically remote
from the children’s placementâ€]; Ronell
A., supra, 44 Cal.App.4th at p. 1364 [failure to provide for visitation was
reasonable where mother was incarcerated in a prison “a full day’s drive
distant†from the children’s placement].)
In this
case, the children’s placement in Bakersfield was a substantial distance from
Napa, where Mother was institutionalized at the time of the dispositional
hearing. According to the social worker,
the trip would take at least five hours each way. The children were young and did not respond
well to long car rides. A long trip
would also have been disruptive to the children’s routine, which was important
in helping them overcome the anxiety and behavioral issues they exhibited at
the time of their placement. Thus, the
distance between Mother’s institution in Napa and the children’s placement in
Bakersfield supports the juvenile court’s finding that visitation would be
detrimental to the children. (See
1407, fn. 8.)
An order
denying visitation to an incarcerated or institutionalized parent can also be
based on evidence that visitation would be stressful on the child and thus
“harmful to the child’s emotional well-being.â€
(In re Christopher H. (1996)
50 Cal.App.4th 1001, 1008 (Christopher H.);
see also In re Daniel C. H. (1990)
220 Cal.App.3d 814, 838-839.) Here, the
social worker opined that visitation would be detrimental for the children
because of their “level of anxiety.†The
letter from the foster parents established that the children had extreme
anxiety about whether they would be moved again, and the foster parents
believed that “exposure to family members in new settings would cause them a
lot of anxiety.†This evidence supported
a finding that visitation would be stressful on the children and thus “harmful
to the child[ren]’s emotional well-being.â€
(Christopher H., supra, at p.
1008.)
Visitation
may also be detrimental when the parent is incarcerated or institutionalized
for the very behavior that led to the dependency proceedings. (Ronell
A., supra, 44 Cal.App.4th at pp. 1357, 1364 [mother in prison for committing felony injury to a child].) Here, Mother was institutionalized, at
least in part, for behavior that led to the dependency proceedings. The section 300 petition alleged that
Mother’s mental illness and non-compliance with her medication rendered her incapable
of providing safe and appropriate care for the children. The petition also alleged that jurisdiction
was necessary because Mother had been sent to a state hospital after an episode
where she tried to kill herself and N.L., while she was pregnant with X.L. The fact that Mother was institutionalized
for these issues further supports a finding that visitation would be a
detriment to the children. (Cf.
Another factor in determining
whether denial of visitation would be detrimental is the degree of bonding
between the incarcerated or institutionalized parent and the child. (See
§ 361.5, subd. (e)(1); Dylan T., supra,
65 Cal.App.4th at p. 769.) In this case, neither child had any
relationship with Mother by the time of the dispositional hearing. X.L. had been removed from her custody at his
birth, and N.L. had been removed from her custody when he was less than two
years old. This was not a situation
where Mother’s relationship with the children would be “subject to
erosion†without visitation during the six months between the dispositional
hearing and the review date. (See
recognized by ordering the social worker to facilitate correspondence between
Mother and the children through the children’s therapist, any relationship with
Mother needed to be reestablished slowly and carefully, because of the
children’s history of anxiety.
In sum, under the circumstances of
this case, substantial evidence supports the juvenile court’s denial of
Mother’s request for visitation pending the results of the psychological
evaluations. (See
775.)
B. Out-of-County Placement
Mother
contends the juvenile court erred by placing the children in a foster home
outside the county without following proper procedures. She specifically complains that (1) she did
not receive notice of the intended out-of-county placement and (2) the reasons
for the out-of-county placement were not documented in the case plan.
There is a
preference for foster care placement “in the county of residence of the child’s
parent or guardian in order to facilitate reunification of the family.†(§ 361.2, subd. (g)(1).) However, an out-of-county placement is
permissible if “there are no appropriate placements available in the parent’s
or guardian’s county of residence.†(
placement in “a county located adjacent to the parent’s or guardian’s community
of residence†(ibid),
although this preference does not require “multiple disruptions of the child’s
placement corresponding to frequent changes of residence by the parent or
guardian.†(Id., subd. (g)(3).)
There are
some procedural requirements for an out-of-county placement. “[T]he specific reason the out-of-county
placement is necessary shall be documented in the child’s case plan.†(§ 361.2, subd. (g)(4).) “[T]he sending county is to maintain responsibility
for supervision and visitation of the child†unless there is “a formal agreement
between the sending and receiving counties.â€
(Id., subds. (g)(5)
&(g)(6).) The social worker is
required to “serve[] written notice on the parent or guardian at least 14 days
prior to the placement, unless the child’s health or well-being is endangered
by delaying the action or would be endangered if prior notice were given.†(Id.,
subd. (h).) If notice is given and a
parent objects, the court must hold a hearing.
(Ibid.) “The court shall order out-of-county
placement if it finds that the child’s particular needs require placement
outside the county.†(
Mother
points out that she did not receive notice of the intended out-of-county
placement and that the reason for the out-of-county placement is not documented
in the case plan. She contends that
these procedural errors were prejudicial.
Respondent
contends that Mother has forfeited this issue.
We agree. Mother failed to object
to the out-of-county placement at any of the hearings below. She was represented by counsel at the transfer-in
hearing held on September 19, 2012, at the pre-disposition hearings held on
October 12, 2012, November 2, 2012, and November 14, 2012. She was personally present and represented by
counsel at the December 12, 2012 dispositional hearing. She did not object to the out-of-county
placement, or to the procedural defects she now identifies, at any time.
The
forfeiture doctrine is intended to encourage parties to alert the trial court
to possible errors. (In re S.B.
(2004) 32 Cal.4th 1287, 1293.) A party
cannot “ ‘deliberately stand by in silence and thereby permit the
proceedings to reach a conclusion in which the party could acquiesce if
favorable and avoid if unfavorable.’ â€
(In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) In this case, mother failed to raise any
objection to the out-of-county placement or the Department’s noncompliance with
the procedures set forth in section 361.2.
She thereby forfeited this issue for appeal. (See In
re Sabrina H. (2007) 149 Cal.App.4th 1403, 1419.)
C. Jurisdictional Findings as
to X.L.
Mother
contends one of the allegations concerning X.L. was not supported by
substantial evidence: that X.L. was
“suffering, or [was] at substantial risk of suffering, serious emotional damage
evidenced by severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others†because he did not have a “parent or guardian
capable of providing appropriate care.â€
(See § 300, subd. (c).)
Mother
acknowledges that reversal of the section 300, subdivision (c) allegation would
not affect the juvenile court’s jurisdiction over X.L. under section 300,
subdivision (b) [failure to protect].
As she further acknowledges, where there is one valid ground for
jurisdiction, appellate courts will often decline to consider whether
alternative grounds are supported by the evidence. (See In
re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“a reviewing court can affirm
the juvenile court’s finding of jurisdiction over the minor if any one of the
statutory bases for jurisdiction that are enumerated in the petition is
supported by substantial evidenceâ€]; In
re Shelley J. (1998) 68 Cal.App.4th 322, 330 [“Section 300 contemplates
that jurisdiction may be based on any single subdivision.â€].)
Citing
754 (Drake M.), Mother contends we
should address her challenge to the section 300, subdivision (c)
allegation. In Drake M., the section 300 petition contained allegations as to
both the mother and the father. The
child was ultimately placed with the father under supervision by the Department
of Children and Family Services. (
761-762.) When the father appealed, the
appellate court reviewed the lower court’s findings regarding the father, even
though the dependency jurisdiction over minor would remain in place due to its
findings about the mother’s conduct. The
appellate court explained, “the outcome of this appeal is the difference
between father’s being an ‘offending’ parent versus a ‘non-offending’
parent. Such a distinction may have far
reaching implications with respect to future dependency proceedings in this
case and father’s parental rights.†(
Here,
unlike in Drake M., neither Mother
nor the record suggest any “far reaching implications†of the section 300,
subdivision (c) allegations justifying our discretionary review of that
issue. (Drake M., supra, 211 Cal.App.4th at p. 763.) In fact, Mother does not
suggest “a single specific legal or practical consequence†of the section 300,
subdivision (c) finding. (See
1493 [declining to exercise discretion to consider alternative jurisdictional
finding].) Moreover, the record does not
suggest any such consequence. For
instance, Mother is not presently at risk of having the juvenile court take
jurisdiction over another child in the future.
(See In re D.C. (2011)
195 Cal.App.4th 1010, 1015 [alternative grounds for jurisdiction considered;
mother had another child who was not the subject of the dependency proceedings].) We therefore decline to address Mother’s
claim that there was insufficient evidence to find jurisdiction over X.L. under
section 300, subdivision (c).
Disposition
The dispositional order of December 12, 2012 is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
RUSHING,
P.J.
__________________________
eLIA, J.
name="_ftn1" title=""> [1]
Unspecified section references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
“The process of setting up a visit is to call the Visiting Center and request
whatever day and time that works best and they will reserve the room. You will not need a clearance, as the
visiting center is outside the secure treatment area.â€
