Opinion
C094250
04-20-2022
In re S.H., a Person Coming Under the Juvenile Court Law. v. M.H., Defendant and Appellant. LASSEN COUNTY HEALTH AND SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. J6566
EARL, J.Father, M.H., appeals from the juvenile court's orders removing minor S.H. from his custody, after the minor had been removed from mother's care and placed with him at disposition. Father contends the juvenile court had no authority to remove the minor from his care without first sustaining a petition for removal under Welfare and Institutions Code section 387. We shall affirm.
Undesignated statutory references are to the Welfare & Institutions Code.
FACTS AND PROCEDURAL HISTORY
In the fall of 2020, the minor's 19-month-old half sibling was found unresponsive in a pond in front of the family's residence and later died. Prompted by the child's death, the Lassen County Department of Health and Social Services (Department) filed a petition in the juvenile court requesting jurisdiction over the minor under the provisions of section 300. The court ordered the minor detained. The minor, who was living with a maternal aunt at the time of the incident, remained with her aunt.
At that time, the minor's father was incarcerated in prison. Father held the minor out as his child and maintained contact with her.
Father is a registered member of the Susanville Indian Rancheria and of Maidu and Pit River Indian heritage. At the time of these proceedings, the minor's membership in the tribe was unsettled. The parties do not raise any issues related to Indian heritage.
At the jurisdiction hearing held on December 21, 2020, the juvenile court found the allegations in the petition true and sustained the petition. Father was not present for the hearing and did not contact the court to indicate his intentions. After the jurisdictional hearing, the minor remained in the care of her maternal aunt. Subsequently, father was released from prison and resumed living in Lassen County. Father expressed a desire to work with the maternal aunt to transition the minor's care to him.
By the time of the disposition hearing, held on February 22, 2021, father was out of custody. At the hearing, the juvenile court found father to be the minor's presumed father. The court removed the minor from mother and placed the minor with father as the nonoffending, noncustodial parent under section 361.2, subdivision (b)(2). The placement remained subject to the jurisdiction of the dependency court and the court scheduled an in-home status review hearing to take place three months later. The minor transitioned from living with her maternal aunt to living with the paternal grandparents. It does not appear the minor ever actually lived with father. Father was supportive of his parents caring for the minor.
Before the review hearing could be held, both parents were arrested. Mother was charged in connection with the death of the minor's half sibling. Father, who was on postrelease community supervision, was arrested during a traffic stop during which an officer found several different types of narcotics, scales, and baggies in the car. The minor was also in the car during the stop and witnessed father's arrest.
The Department submitted an interim review report. Despite being fully aware of the circumstances around father's arrest and his reincarceration, the Department recommended that the minor remain in father's custody and that the court terminate jurisdiction.
On the day the review hearing was scheduled, mother filed a petition under section 388 for modification of the placement order and argued that in light of the circumstances around father's arrest it would be detrimental to allow the minor to remain with father. Father's counsel asked for a copy of the section 388 petition and represented that she could "come up to speed" by the next court date. To ensure the parties had adequate notice to address mother's section 388 petition, the juvenile court continued the matter for two weeks.
On May 24, 2021, father was present and represented by counsel for the rescheduled review hearing. The juvenile court noted there was no objection to hearing the section 388 petition for modification of placement and the objection to the report from the Department at the same time and the parties indicated they were ready to proceed. The court indicated that under section 361.2, subdivision (b), the court was to decide whether to: follow the recommendation of the Department and terminate jurisdiction; continue the placement with another review period; provide father with custody and services; or find by clear and convincing evidence that it would not be in the minor's best interest to be placed with father and determine whether to provide services. The question before the court was "whether or not placement at this time is appropriate with the father based upon the decision we made back in November to temporarily place [S.H.] with her father pending the three-month review."
Mother argued that father's arrest constituted a change in circumstances warranting a change in placement under section 388. Mother contended that father placed the minor in serious and real danger by allowing her to be in close proximity to drugs and drug paraphernalia and through potential exposure to drug addicts or transactions. She also argued that father has a lengthy criminal history and the incident leading to his arrest shows he is not a fit parent. On behalf of the minor, counsel labeled father as a career criminal who has spent more time in custody than out of custody and that he showed "abominable" judgment by engaging in criminal conduct within months of his release from prison and in the presence of the minor. The representative from the Susanville Indian Rancheria agreed with the section 388 petition, arguing that the minor should not be placed with either parent. The Department objected to mother's section 388 petition on the basis that the minor is currently with her paternal grandparents, to whom father has bestowed certain rights regarding the minor and the Department opined that minor could continue to be safely cared for by them. Father argued that the minor has been in the care of family for some period of time and should remain so. The parties generally agreed that the minor should be cared for by the paternal grandparents but the Department represented that no background checks on the paternal grandparents or other relatives were completed, because the placement was officially with father. No one argued that the section 388 petition filed by mother was an inappropriate mechanism by which to address the placement issue.
The juvenile court found by clear and convincing evidence, that placement with father would be detrimental to the safety, protection, physical or emotional well-being of the minor. The court noted that father was only out of prison for a very short period of time before he was incarcerated again, facing serious charges, and that he subjected his daughter to his criminal actions. The court ordered physical custody removed from both parents and placed the minor in the custody of the Department for placement in an approved home of a relative.
Father timely appealed.
DISCUSSION
Father argues that the dependency court was not authorized to remove the minor from his custody. Specifically, he contends that once the minor was placed in his care pursuant to section 361.2, subdivision (b), the court had limited options, which do not include removal. Father claims that removal is only appropriate after the juvenile court sustains a petition under section 387 and, by removing the minor in the absence of a 387 petition, the juvenile court denied father his due process rights. While we agree that section 361.2 did not provide the juvenile court the authority to remove the minor from father's custody, we disagree that such authority may only arise under section 387. We conclude father forfeited any contention that a section 387 petition was required, failed to establish his rights were violated and, in any event, removal of the minor from father's custody pursuant to mother's section 388 petition for modification was authorized.
A. Statutory Authority for Removal
Where, as here, the juvenile court orders a minor removed from the custodial parent's home, and there is a nonoffending, noncustodial parent who desires custody of the minor, the court must place the minor with the noncustodial parent unless doing so would be detrimental to the minor. (§ 361.2, subd. (a).) This statutory guide creates a presumption for placement with a noncustodial parent and furthers the legislative goals to place a child in the care of a parent when safe for the child, strengthen the child's relationship with other relatives, and avoid the child's placement in foster care. (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1505-1506.) Section 361.2 is not a removal statute; it provides no basis for the court's removal of a child from a parent's custody. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1422.)
The Welfare and Institutions Code provides two procedures for a change in placement from the previous section 300 disposition determination, depending upon who is making the request. When a social services agency seeks to remove a dependent child from the parent, a petition under section 387 is used. (§ 387, subds. (a)-(b).) When a child or other interested person seeks removal of a dependent child from a parent, a petition under section 388 is an appropriate vehicle for the request. (§ 388, subd. (a)(1); In re Victoria C. (2002) 100 Cal.App.4th 536, 543 [father's § 388 petition was an appropriate procedural vehicle to seek removal of the minor from the mother's custody; the juvenile court erred by concluding otherwise].)
Under section 388, the party seeking the modification must establish a change of circumstance or new evidence that requires the change of order and that the modification would be in the child's best interests. (§ 388, subd. (a)(1).) If the section 388 request is for the removal of the child from a parent, the petitioner must show by clear and convincing evidence that the grounds for removal in section 361, subdivision (c) exist. (Cal. Rules of Court. rule 5.570(h)(1)(A); In re A.R. (2015) 235 Cal.App.4th 1102, 1116.) Section 361, subdivision (c) prevents removal of a child from a parent's custody unless, and as relevant here, the court finds clear and convincing evidence that there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which to protect the minor without removing the minor from the minor's parent's physical custody.
B. Analysis
Initially, father contends the juvenile court's order removing the minor from his custody without sustaining a section 387 petition denied him due process. Father, however, forfeited this contention by failing to object on this ground in the juvenile court. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 [forfeiture doctrine applies in dependency proceedings for failing to object on due process grounds].) Indeed, he impliedly consented to the proceedings as held by seeking a continuance to "come up to speed" and fully participating in the continued hearing below. Moreover, father is unable to establish that the proceedings deprived him of any rights.
Due process requires notice and an opportunity to be heard. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) Father argues that because there was no section 387 petition filed, he had no notice or opportunity to "defend himself from sua sponte findings and orders he had no idea were going to be addressed at the hearing." Father's claims are entirely belied by the record. Although mother filed the section 388 petition on the day of the scheduled review hearing, mother orally summarized the basis for her petition as a request to remove the minor from father's custody in light of his arrest and pending felony charges. Father's counsel asked for a copy of the section 388 petition and represented that she could "come up to speed" by the next court date. The juvenile court continued the matter so that all the parties would have proper notice of the petition. At the subsequent hearing, the parties agreed to address the section 388 petition and litigated the issue of whether the minor's placement with father should be modified. At no point did father object to any surprise, lack of notice or opportunity to be heard, and instead fully participated in the hearing regarding the possible removal of the minor. Thus, the record demonstrates father was supplied with notice and the opportunity, which he exercised, to be heard. Father's claim that he was denied due process is simply without merit. (See M.L. v. Superior Court (2019) 37 Cal.App.5th 390, 399 [a § 388 proceeding fully complied with the process requirements for a § 387 petition where: parents were on notice that removal from the home was an issue, the juvenile court held a contested hearing, the court removed the children based on a finding by clear and convincing evidence that the minors were at substantial risk of both physical and emotional harm if they remained in the family home].)
Father does not acknowledge that the use of the section 388 petition was without objection, much less address the authority for removal of the minor under section 388. Rather, he claims that because the court mistakenly believed it had the authority under section 361.2 to remove the minor, in exercising that authority the court applied the wrong standard. We disagree.
We review interpretations of law de novo. (In re A.S. (2018) 28 Cal.App.5th 131, 144.)
As described above, section 388 provides an interested party the opportunity to intervene and request a change of custody when, as here, the Department does not recommend a change in placement. In this case, several parties felt continued placement with father would be unsafe. Yet under father's current argument, the juvenile court would have been helpless to address those safety concerns simply because the Department, for whatever reason, chose not to file a section 387 petition. Contrary to father's claims, the juvenile court had another recourse because mother exercised her right to petition for a modification of the custody order under section 388. Here, the record demonstrates that the court was aware that the matter was scheduled to review the initial placement under section 361.2 but also mother's section 388 petition for modification. In making the ultimate findings, the court found clear and convincing evidence that placement with father would be detrimental to the safety, protection, physical or emotional well-being of the minor. Thus, the juvenile court applied the proper standard for the removal of a child under section 361, as required when entertaining a section 388 petition, but the removal and change of placement itself was authorized under section 388-not section 361.2.
DISPOSITION
The juvenile court's order is affirmed.
We concur: MAURO, Acting P. J., RENNER, J.