IN RE: E. G. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I. INTRODUCTION

This action arises under Welfare and Institutions Code 1 section 300 et seq.   The mother, B.C., appeals from a June 14, 2010 disposition order as to her minor son (the child).   We affirm the order.

II. BACKGROUND

A. The Section 300 Petition

In mid-2008, the department detained the child's older half-sibling, M.G. This was 10 months before the child was born.   On that date, the 20-year-old mother drove a car while under the influence of marijuana and a nitrous oxide inhalant.   M.G. was a passenger.   The mother parked the car in the path of oncoming traffic and walked away, leaving M.G. inside.   The mother was arrested and charged with abandonment (Pen.Code, § 271a), child cruelty (Pen.Code, § 273a, subd. (a)) and being under the influence in public.  (Pen.Code, § 647, subd. (f).)  On July 15, 2008, the mother pleaded nolo contendere to the abandonment charge.   The remaining two counts were dismissed.   Imposition of sentence was suspended and the mother was placed on 48 months' probation.   As a condition of her probation, the mother attended 60 narcotics anonymous meetings, performed 50 days of community service, paid $120 in fines and fees, and completed 52 weeks of parenting classes.   She provided her final proof of completion to the criminal court on April 5, 2010.

At the time M.G. was detained, on July 11, 2008, the department contacted the then alleged father, D.G. The alleged father, who was 21 years old at the time, admitted he had a history of drug use, marijuana and methamphetamines.   He said he had first started using marijuana seven years earlier, in 2001, and had last used the drug in April 2008.   He said he had used methamphetamines for 4 years, from age 15 to age 19.   He had not used methamphetamines for two years.   He admitted he had been arrested in April 2008 on a warrant for driving with a suspended license (Veh.Code, § 14601.1, subd. (a)).  In August 2009, the alleged father pleaded nolo contendere and was placed on 36 months' probation.   M.G. was not placed in the alleged father's care.   As the case progressed, the department learned that L.P. was M.G.'s biological father.

The child, whose father is D.G., was born in the spring of 2009.   On September 1, 2009, M.G. was returned home.   M.G. lived in the mother's home and the biological father's (L.P.'s) residence.   However, the mother failed to comply with drug testing orders once M.G. returned to her home.   And on February 19, 2010, the mother tested positive for marijuana.   M.G. was detained and placed with her father, L.P. On March 30, 2010, the juvenile court terminated jurisdiction as to M.G., with a family law order in place.   M.G. remained in the sole legal and physical custody of her father, L.P. The mother had monitored visitation.

On February 25, 2010, an unidentified person alleged the child was being neglected.   Beginning March 1, 2010, department social worker Adrienne Zachery made unsuccessful attempts to contact the family-mother, D.G. and the child.   On March 29, 2010, this case was assigned to social worker Lilia Aguirre.   Ms. Aguirre continued extensive efforts to locate the family, from March 29 through April 26, 2010.   Ms. Aguirre concluded the mother was evading contact with the department.   On April 9, 2010, the mother telephoned Ms. Aguirre.   The mother said the child was living with D.G. and the paternal grandmother.   The mother admitted she was using marijuana every day.   She said she had used methamphetamines months ago, but now she just smoked marijuana.   The mother gave Ms. Aguirre a telephone contact number, but declined to give an address.   On April 26, 2010, Ms. Aguirre telephoned the mother at the number provided.   The mother answered and spoke with a slurred voice.   The mother was incoherent and replied, “[H]uh,” to Ms. Aguirre's questions.   At one point, the mother yelled at Ms. Aguirre.   When asked whether she could bring the child to a court hearing scheduled for April 27, 2010, the mother said, “ ‘I don't know where he is at.’ ”

The department reported that the mother had an extensive dependency history as a minor including:  sexual abuse;  general neglect;  physical abuse;  caretaker absence incapacity;  and emotional problems.   The referrals dated from 1997 to the present.   The mother also had an extensive juvenile delinquency record.   And the mother had a history of mental health problems.   Ms. Aguirre interviewed Gary Punkett at the Department of Mental Health on April 6, 2010.   Mr. Punkett said the mother had an extensive mental health history:  she had a history of 41 psychological episodes with the majority requiring hospitalization;  she had seen 13 different mental health providers from 2002 through 2006 and had been inconsistent with treatment;  and based on her extreme mental health history, she posed “a lot” of risk.   The maternal grandfather said to his knowledge the mother was never diagnosed with any mental health problem.

B. The April 27, 29 And 30 Hearings

The department filed a section 300 petition as to the child, who was approximately one-year old, on April 27, 2010.   The mother appeared in the juvenile court on April 27, 2010, but left before the hearing commenced.   The mother's counsel, Donna Bernstein, advised the juvenile court, “She told me she had an appointment to go into a drug program.”   The mother had filled out court documents stating she was homeless.   She did not provide a mailing address or a telephone number.   The child's whereabouts were unknown.   Ms. Bernstein further reported:  “[The mother] said the last time she had seen the father was a month ago.   She told the social worker where the father was.  [The mother] said that she had been with [the child] living in [the maternal grandfather's] home.   [The maternal grandfather] kicked her out.   She said she had no place to go, so she gave [the child] to [his] father․  She has not seen him, she said for a month.   She did tell the social worker the whereabouts of the father.   That's what she told me, Your Honor.  [¶] She he is willing to cooperate.”   The parents and child had been living with the maternal grandfather.   But the maternal grandfather's rule was if you use drugs you have to leave.   So when the mother tested positive for marijuana, the maternal grandfather asked the family to leave.

The juvenile court found jurisdiction under section 300, subdivisions (b), (c) and (j).  The juvenile court continued the matter to April 29, 2010.   If the child had not been detained or was not present at that time, the juvenile court stated it intended to issue arrest and protective custody warrants.

The mother failed to appear at the April 29 and April 30, 2010 hearings.   The mother had not contacted Ms. Bernstein.   The juvenile court issued a protective custody warrant for the child and arrest warrants for the parents.   The matter was continued to May 27, with a June 1 settlement conference and a June 8, 2010 adjudication and contested disposition hearing.

C. May 27, 2010

The department prepared a jurisdiction/disposition report for the May 27 hearing.   The parents' and child's whereabouts remained unknown.   A department social worker telephoned the mother on May 17, 2010, and left a message requesting a return call.   The mother called back 30 minutes later.   The mother said she was living with D.G. and the child out of state so that the department would not be able to find them.   The mother said she was willing to come into the department's office, but she wanted to know whether she would be arrested.   The mother said she would not bring the child in because she knew the department would detain him.   The mother said she was looking for an in-patient drug treatment program that would allow her to keep the child with her.   On May 18, 2010, the maternal grandfather said he had spoken to the mother.   She said she had been in jail for about a week but now she had been “clean” for 30 days, and she was planning to “turn herself in.”   She was aware of the June 1 hearing date and was planning to attend.

The matter was called for hearing on May 27, 2010.   The parents and child were still at large.   However, the parents appeared at a further hearing on June 1, 2010.   The father told the court the child was with a babysitter and provided the location.   The child was located and taken into protective custody.   The juvenile court then recalled the bench warrants for the parents.

The father was interviewed on June 4, 2010.   The father and the child were living in Hesperia with the paternal grandparents.   Also living in the Hesperia home were the father's younger siblings.   The father was employed.   The paternal grandmother and the father's sister-in-law had been providing care for the child while he was at work.   The father said he had met the mother in February 2007 and she had moved in with him in March.   The mother was four months pregnant with M.G. when the parents met.   The parents split up when M.G. was three months old and the mother went to live with the maternal grandfather.

The mother contacted the father from jail after M.G. was detained.   The mother wanted his help regaining custody of M.G. The father wanted to help the mother and they remained together while she received family reunification services.   They lived with the maternal grandfather.   As far as the father knew, the mother was in compliance with her case plan and was drug testing.   During that time, the mother became pregnant with the child.   The father said he had not known the mother was a drug user until M.G. was detained.   According to the father, the mother had not used drugs or been under the influence in his presence.   However, before the mother tested positive for marijuana, in February 2010, he had begun to suspect she was using drugs because of her behavior:  she became aggressive and stopped caring;  she stayed out late;  and sometimes did not come home at all.   At that point the father became the child's primary caregiver.   Once the mother tested positive for drugs, the maternal grandfather and the father did not let her back into the home.   And the father had not left the mother alone with the child.

The father denied evading department social workers.   But the father admitted he was intimidated.   The social worker who prepared the jurisdiction/disposition report wrote:  “Father stated he never called [Ms. Aguirre] back because he was scared and did not want his child taken from him.  [¶] ․ Father stated he did not come into the [department] office with the child because he was scared that the child would be taken from him and he did not want his child in the [department] system.”   The father admitted he had used drugs infrequently between the ages of 16 and 19, but denied he was a current drug user.   The father knew nothing about the mother's mental health issues.   On June 4, 2010, the father tested negative for drugs.

D. The June 8, 2010 Adjudication

Both parents appeared at the June 8, 2010 hearing.   The mother's counsel, Ms. Bernstein, offered stipulated testimony:  “If the mother were called to the stand and sworn, she would testify that she had completed women to women drug program and did relapse February of 2010.”   The mother had an appointment for a substance abuse recovery assessment with the Department of Health Services on June 10, 2010.   The juvenile court sustained the following allegations under section 300, subdivision (b) (failure to protect):  the mother has a five-year history of illicit drug abuse and is a current abuser of marijuana;  she failed to regularly participate in a court ordered substance abuse rehabilitation program;  the child's half sibling was a juvenile court dependent due to the mother's substance abuse;  the father has a history of illicit drug abuse including use of methamphetamine and marijuana;  and the mother has mental and emotional problems including a diagnosis of major depression.   The juvenile court sustained the following allegation under section 300, subdivision (j) (abuse or neglect of sibling):  the mother has a history of illicit drug abuse and is a current marijuana abuser;  she tested positive for marijuana on February 19, 2010;  she failed to regularly participate in a court ordered substance abuse rehabilitation program;  and M.G. is a juvenile court dependent due to the mother's substance abuse.

E. The June 14, 2010 Disposition Hearing

The department recommended the child be placed in the father's home.   The home had been assessed and there were no safety concerns.   The father had assured department social worker Sara Mendez that he would follow court orders and protect the child.   In its June 1, 2010 jurisdiction and disposition report, the department had recommended no reunification services be provided to the mother.   The department reported the mother:  had received reunification services with respect to M.G. from July 11, 2008 through April 19, 2010;  had not complied with her case plan;  had not drug tested regularly and had not completed court ordered parenting classes and a drug treatment program;  had failed to reunify with her child;  and had tested positive for marijuana.   In its June 14, 2010 report, however, the department changed course and recommended family reunification services for the mother.   The juvenile court issued the home of parent order as to the father but denied reunification services to the mother under section 361.2.

III. DISCUSSION

A. Overview

The mother asserts section 361.2 was inapplicable, and the juvenile court should have awarded her reunification services under section 361.5.   We conclude the mother forfeited this argument by failing to raise it in the juvenile court.   Even if not forfeited, the juvenile court did not abuse its discretion in denying the mother reunification services.

B. The Mother Forfeited Her Argument By Failing To Raise It In The Juvenile Court

The mother contends section 361.2 does not apply because the child had been living with the father and the juvenile court sustained allegations against the father.   This argument was not raised in the juvenile court.   As a result, it has been forfeited.   The forfeiture doctrine (previously described as a waiver) has been repeatedly and consistently applied in dependency cases.  (E.g., In re Troy Z. (1992) 3 Cal.4th 1170, 1181 [plea of no contest to § 300 petition foreclosed appellate challenge to sufficiency of the evidence];  In re B.G. (1974) 11 Cal.3d 679, 689 [failure to challenge validity of personal jurisdiction];  In re G.M. (2010) 181 Cal.App.4th 552, 563-564 [mother forfeited argument regarding legal impediment to adoption];  In re A.E. (2008) 168 Cal.App.4th 1, 5 [father failed to object to order directing him to participate in counseling session];  In re P.A. (2007) 155 Cal.App.4th 1197, 1207-1210 [father forfeited right to contest denial of reunification services];  In re Wilford J. (2005) 131 Cal.App.4th 742, 754 [father forfeited right to challenge jurisdictional order];  In re S.O. (2002) 103 Cal.App.4th 453, 459-460 [failure to raise issue of sufficiency of dependency petition];  In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037 [father waived any procedural defect by litigating on the merits];  In re Dakota S. (2000) 85 Cal.App.4th 494, 496 [mother waived objection to guardianship order];  In re Urayna L. (1999) 75 Cal.App.4th 883, 886 [mother waived objection to Department of Children and Family Services report];  In re Shelley J. (1998) 68 Cal.App.4th 322, 328 [mother waived insufficiency of dependency petition allegations];  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 Christopher B. (1996) 43 Cal.App.4th 551, 558 [failure to raise forum non conveniens objection in trial court];  In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [failure to raise sibling visitation issue in superior court];  In re Daniel D. (1994) 24 Cal.App.4th 1823, 1831 [by only seeking placement with herself in superior court, mother waived right on appeal to contend child should be placed with grandmother];  In re Mark C. (1992) 7 Cal.App.4th 433, 445-446 [father's failure to pursue issue waived claim expert psychological testimony should have been admitted at dispositional proceeding];  In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 [parent waived right to proof beyond a reasonable doubt test mandated by Indian Child Welfare Act (25 U.S.C. §§ 1901 et seq.) when no objection was interposed to court's use of clear and convincing evidence standard];  In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1484-1485, disapproved on a different point in People v. Horton (1991) 54 Cal.3d 82, 92-93 [failure to object to referee acting as temporary judge];  In re Daniel C.H. (1990) 220 Cal.App.3d 814, 836 [failure to object to amendments to pleadings];  In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299 [parent's failure to object to adequacy of oath taking waived issue];  In re Amos L. (1981) 124 Cal.App.3d 1031, 1038 [no objection to inadequacy of social study];  In re Heidi T. (1978) 87 Cal.App.3d 864, 876 [failure to object in superior court waived issue of right to separate counsel for minors];  see In re S.B. (2004) 32 Cal.4th 1287, 1293 [dependency matters are not exempt from forfeiture rule].)

Further, the exception to the general forfeiture rule has no application to this case.   In the case of In re S.B., supra, 32 Cal.4th at page 1293, our Supreme Court described the limited exception in dependency appeals to the foregoing forfeiture rule:  “[T]he appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.  (See Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, fn. 17 [, disapproved on another point in Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 183];  Hale v. Morgan [ (1978) 22 Cal.3d 388], [ ] 394.)   Although an appellate court's discretion to consider forfeited claims extends to dependency cases (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188;  Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1459), the discretion must be exercised with special care in such matters.  ‘Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.’ (In re Chantal S. (1996) 13 Cal.4th 196, 200.)   Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. (§ 366.26.)” The present case does not involve an important issue of law.   There is no justification for overriding the requirement that the forfeiture rule should be disregarded only on rare occasions.

C. The Juvenile Court Did Not Abuse Its Discretion

As noted above, the mother asserts section 361.2 was inapplicable, and the juvenile court should have awarded her reunification services under section 361.5.   The juvenile court has broad discretion to deny reunification services under section 361.2, subdivision (b).  (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179;  In re Erika W. (1994) 28 Cal.App.4th 470, 475.)   Our review is for an abuse of discretion.  (Ibid.) We conclude the juvenile court did not abuse its discretion.

Section 361.2 provides in relevant part:  “(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, 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 the child.   If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. [¶] (b) If the court places the child with that parent it may do any of the following:  [¶] ․ [¶] (3) Order that the parent assume custody subject to the supervision of the juvenile court.   In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision․”  (Italics added.)

Section 361.5 states in relevant part:  “(a) Except as [otherwise] provided ․ whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians ․ [¶] ․ [¶] (b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] ․ [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.”

The Court of Appeal examined the legislative intent underlying sections 361.2 and 361.5 in the case of In re Erika W., supra, 28 Cal.App.4th at pages 475-476:  “Section 361.2 and section 361.5 were simultaneously enacted in 1986.   (Stats.1986, ch. 1122, §§ 12, 13, pp. 3982-3986.)   Section 361.5 contains general rules governing the provision of reunification services to parents of minors removed from parental custody.   Reunification services are mandated under section 361.5, subdivision (a) except where a parent is unavailable, mentally disabled or has been extremely abusive towards a child.   Like section 361.5, section 361.2, subdivision (a)(2) [now subdivision (b) ] also pertains to the provision of reunification services.   In contrast to the general applicability of section 361.5, section 361.2, subdivision (a)(2) applies only when the minor is removed from the custody of one parent, pursuant to section 361, and placed in the custody of the non-custodial parent under the supervision of the juvenile court.  [¶] Under these limited circumstances, section 361.2, subdivision (a)(2) invests the juvenile court with discretion as to the provision of reunification services to the parents.   The court ‘may order that reunification services be provided to the parent or guardian from whom the minor is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the minor.’ (§ 361.2, subd. (a)(2), italics added.)  [¶] Because section 361.5 was part of the same legislative act as section 361.2, subdivision (a)(2), it cannot be interpreted as rendering nugatory the provisions of section 361.2, subdivision (a)(2).   Seen as parts of a single legislative scheme, the only rational intent which can be ascribed to the Legislature is the intent to enforce a different set of rules regarding the provision of reunification services in those cases where custody of a minor is shifted from one parent to another parent.   Section 361.2, subdivision (a)(2) invests the juvenile court with the discretion to decide whether one parent or the other or both parents should receive services under these circumstances.”

The juvenile court exercises discretion as to the provision of reunification services under section 361.2 with the ultimate goal of providing a permanent, stable home for the child.   As the Court of Appeal further explained in Erika W. “Section 361.2, subdivision (a)(2) [now (b) ] does not grant the juvenile court ‘unfettered discretion’ to deny reunification services because the statute adequately guides the court's exercise of its discretion.   Reunification services are one part of a statutory scheme which the Legislature has devised to protect the welfare of minors who have been neglected or abused or are at substantial risk of being neglected or abused.  (In re Marilyn H. (1993) 5 Cal.4th 295, 307-308.)  ‘[T]he purpose of reunification services is to facilitate the return of a dependent child to parental custody.’  (In re Jodi B. (1991) 227 Cal.App.3d 1322, 1326.)   Two of the most important goals underlying dependency laws are to promptly resolve the child's custody status and to provide the child with a stable environment in which to develop.  (In re Marilyn H., supra, 5 Cal.4th at p. 308.)   Section 361.2, subdivision (a) serves these objectives by providing for the placement of a dependent child with a previously non-custodial parent when the custodial parent has neglected the child, and permitting the juvenile court to structure the provision of reunification services around the ultimate goal of providing a stable permanent parental home for the child.  [¶] Section 361.2, subdivision (a)(2) expressly contemplates that reunification services will be offered only for the purpose of facilitating permanent parental custody of the child by one or the other parent.   If the previously noncustodial parent can provide a safe and stable permanent home for the child and the evidence establishes that the other parent cannot, reunification services may be offered only to the previously noncustodial parent since this serves the Legislature's goals by placing the child in parental custody and providing for a safe and stable permanent home for the child.   The statute expressly directs the court to consider these factors in deciding to whom reunification services should be provided.  ‘[T]he court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision.’ (§ 361.2, subd. (a)(2) [now (b)(3) ], italics added.)”   (In re Erika W., supra, 28 Cal.App.4th at pp. 476-477.)

On the evidence before it, the juvenile court could reasonably conclude the father was a previously noncustodial parent within the meaning of section 361.2.   The condition that brought the child within the provisions of section 300 was the mother's drug use which in part preceded his birth.   The mother's drug use arose prior to July 11, 2008, the date on which M.G., the child's half-sister, was detained.   The child was born in the spring of 2009.   Therefore, at the time the condition arose, the child was not residing with the father.   The child was not yet born.   Further, the father assumed primary care of the child only after the mother:  relapsed in February 2010 into drug use;  was unable to care for the child;  and was kicked out of the maternal grandfather's home.   It was the mother's relapse that triggered the department's decision to detain the child.

The mother's argument that the father was precluded from gaining custody under section 361.2 because he was an offending parent is also without merit.   There is nothing in section 361.5 that precludes placement with the father due to the sustained allegations of prior drug use.   The statute does not by its terms require that the parent assuming custody be nonoffending.   And the Court of Appeal has held that section 361.2 applies to a noncustodial parent without regard to whether he or she is offending or nonoffending.  (In re V.F. (2007) 157 Cal.App.4th 962, 970.)   Here, the father admitted he had used drugs in the past.   But he had not used drugs for more than two years.   And he was committed to providing a stable, drug-free home for his son.

We conclude the juvenile court did not abuse its discretion in denying reunification services to the mother pursuant to section 361.2, subdivision (b)(3).   Further, because we conclude the juvenile court did not abuse its discretion in denying the mother reunification services under section 361.2, we need not consider whether it would have been an abuse of discretion to deny her services under section 361.5.

IV. DISPOSITION

The disposition order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise noted..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

MOSK, J. KRIEGLER, J.