IN RE: A.-J. H. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

S.L. appeals from the juvenile court's finding of jurisdiction and its disposition order removing her infant son, A.-J. H. (Aaron), from her physical custody.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2010 the juvenile court sustained a petition pursuant to section 300, subdivisions (b) and (g),¹ finding S.L. had placed her then–10–month–old son, Ashton, at substantial risk of serious physical harm by leaving him alone in a vehicle for approximately two hours and by leaving him at home without adult supervision for extended periods.   In addition, the juvenile court found S.L. had a history of illicit drug use and was a current drug user, rendering her incapable of providing regular care for Ashton.   On prior occasions S.L. had been under the influence of marijuana while Ashton was in her care.   Ashton was removed from S.L.'s physical custody and reunification services were ordered.   S.L. was pregnant with Aaron at that time.²

On December 23, 2010, shortly after Aaron's birth, the Los Angeles County Department of Children and Family Services (Department) filed a new petition pursuant to section 300, subdivisions (b) and (j), alleging in count b–1 that S.L. has a history of illicit drug use and is a current user of marijuana, which render her incapable of providing regular care for the baby.   Count b–1 also alleged S.L. had failed to regularly participate in the substance abuse rehabilitation program and random drug testing ordered in connection with Ashton's dependency proceeding.   This conduct placed Aaron at substantial risk of serious physical harm.   Counts b–2 and j–1 alleged that the detrimental and endangering situation established by S.L. for Ashton (that is, repeatedly leaving the young child unattended) also endangered Aaron.   A hospital hold was placed on Aaron.

S.L. was not present at the detention hearing on December 23, 2010.   The matter was continued to January 19, 2011 for a pretrial resolution conference (PRC), and S.L. was given written notice of the new date.   The notice, however, did not specify the nature of the hearing that would occur on January 19, 2011.   S.L. attended the PRC, and counsel was appointed to represent her.   The matter was continued to January 24, 2011 for a paternity hearing.³  S.L. and her counsel were present;  the alleged father was not.   The matter was continued to January 31, 2011 for adjudication and for the paternity hearing.   Apparently no additional written notice was provided to any of the parties.

The jurisdiction hearing was held on January 31 and February 1, 2011.   The court admitted into evidence the Department's detention report dated December 23, 2010, the jurisdiction/disposition report dated January 19, 2011, a last-minute-information-for-the-court report dated January 31, 2011 and two reports from Ashton's proceeding (the jurisdiction/disposition report and a supplemental report).   S.L.'s objections to the reports regarding Ashton were overruled.   County counsel presented no additional evidence.   When asked if she had any evidence on behalf of S.L., counsel responded, “No, your Honor, argument only.”   Following argument, the court modified count b–1 to conform to proof by replacing the language “mother was under the influence of marijuana while the child's sibling, Ashton [ ], was in the mother's care and supervision,” with “mother smoked marijuana while pregnant with the child Aaron,” and, as so modified, found it true by a preponderance of the evidence.   The court found counts b–2 and j–1 true as alleged and accordingly found Aaron was a child described by section 300, subdivisions (b) and (j).

The court moved immediately from the jurisdiction hearing to disposition, declared Aaron a dependent of the juvenile court and found by clear and convincing evidence, pursuant to section 361, subdivision (c), that there would be a substantial danger to the child's physical health and safety if he were returned home and that there were no reasonable means to protect Aaron without removing him from S.L.'s physical custody.   The court ordered Aaron suitably placed.   At this point S.L.'s counsel voiced S.L.'s objection to suitable placement and asked for a home-of-parent order.   The court rejected that request without comment and ordered family reunification services for S.L., including monitored visitation with discretion in the Department to liberalize visitation.   The court then set the matter for a six month review hearing under section 366.21, subdivision (e).

CONTENTIONS

S.L. contends there was insufficient evidence Aaron was at substantial risk of serious physical or emotional harm as a result of her history of drug abuse or current use of marijuana, as alleged in count b–1 of the petition, and the disposition order was made at a hearing that had not been properly noticed, violating her right to due process.

DISCUSSION

1.  The Juvenile Court's Jurisdiction Is Properly Based on Findings Not Contested by S.L.

The juvenile court's jurisdiction may rest on a single ground.  (In re Christopher C. (2010) 182 Cal.App.4th 73, 83;  D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127.)   S.L. limits her challenge to the court's jurisdiction findings to count b–1 of the petition, relating to her abuse of marijuana, arguing there was no evidence of any causal link between her conduct and a current risk of harm to Aaron.   She does not contest the court's findings in counts b–2 and j–1 that her history of neglect of Ashton—repeatedly leaving him unattended, including for a two-hour period in a car—not only created a dangerous environment for her young son but also endangered his recently born, younger brother.   Because those two uncontested counts provide an independent basis for asserting dependency court jurisdiction over Aaron, any insufficiency in the evidence to support the marijuana abuse count is moot.  (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [single basis for jurisdiction is sufficient to uphold juvenile court's order];  see In re Jonathan B. (1992) 5 Cal.App.4th 873, 875–876 [where one jurisdictional finding is supported by substantial evidence, appellate court need not consider sufficiency of evidence to support other findings].)

2. S.L. Has Forfeited Her Right To Challenge the Sufficiency of Notice of the Disposition Hearing

Section 291 requires that notice be given to the appropriate parties of any pretrial, jurisdiction or disposition hearing conducted after the initial petition hearing (§ 291, subd. (a));  the required notice must include the date, time and place of the proceeding and a statement of the “nature of the hearing.” (§ 291, subd. (d)(1)-(5);  see In re Wilford J. (2005) 131 Cal.App.4th 742, 749.)  “Reinforcing the statutory notice requirements, a parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing․”  (Id. at p. 751.)

As the Department explains, the disposition hearing may immediately follow the jurisdiction hearing in the absence of a request for a continuance. (§ 358, subd. (a) [“After finding that a child is a person described in Section 300, the court shall hear evidence on the question of the proper disposition to be made of the child.   Prior to making a finding required by this section, the court may continue the hearing on its own motion, the motion of the parent or guardian, or the motion of the child․”].)  However, that the two hearings may be conducted on the same day does not excuse the constitutional and statutory requirement that proper notice of each hearing be given to the parties.   Here, as S.L. contends, she was never given notice—either written or orally—that the disposition hearing would be held on February 1, 2011 immediately after the jurisdiction hearing.   In fact, the only written notice actually sent related to the PRC held on January 19, 2011 and, even then, did not clearly indicate the nature of the hearing that would occur that day.

Although notice of the disposition hearing was plainly defective, S.L. and her counsel did not object to immediately proceeding to disposition on February 1, 2011 after the conclusion of the jurisdiction hearing, did not request a continuance and, in fact, made a substantive, albeit brief, argument that a home-of-parent order was the appropriate disposition in the case.   Because S.L. thus deprived the juvenile court of the opportunity to correct the mistake, she has forfeited the right to raise this issue on appeal.  (See In re S.B. (2004) 32 Cal.4th 1287, 1293;  In re B.G. (1974) 11 Cal.3d 679, 689;  In re P.A. (2007) 155 Cal.App.4th 1197, 1210.)  “A defect in notice, as we have discussed, is a most serious issue, potentially jeopardizing the integrity of the entire judicial process.   However, when a parent had the opportunity to present that issue to the juvenile court and failed to do so, appellate courts routinely refused to exercise their limited discretion to consider the matter on appeal.   This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court.”  (In re Wilford J., supra, 131 Cal.App.4th at p. 754.)

DISPOSITION

The order of the juvenile court is affirmed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Welfare and Institutions Code..  FN1. Statutory references are to the Welfare and Institutions Code.

FN2. The juvenile court also found Ashton's father had failed to provide him with the necessities of life.   The record before us indicates Ashton's father is now deceased..  FN2. The juvenile court also found Ashton's father had failed to provide him with the necessities of life.   The record before us indicates Ashton's father is now deceased.

FN3. The nonoffending alleged father identified in the December 23, 2010 petition denied paternity and was ultimately determined not to be Aaron's biological father.   At the time of the jurisdiction and disposition hearing, the child's biological father was unknown..  FN3. The nonoffending alleged father identified in the December 23, 2010 petition denied paternity and was ultimately determined not to be Aaron's biological father.   At the time of the jurisdiction and disposition hearing, the child's biological father was unknown.

WOODS, J. ZELON, J.