Opinion
D073072
04-27-2018
In re J.T., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ROBERT T., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NJ15339) APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Robert T., the presumed father of two-year-old J.T., appeals the juvenile court's disposition order removing J.T. from his custody under Welfare and Institutions Code section 361, subdivision (c)(1), following the court's finding that there would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of J.T. if she was returned home. Robert claims the court lacked authority to remove J.T. from his custody because J.T. was residing with her mother, Hillary T., not with Robert, at the time the section 300 petition was filed. During the juvenile court proceedings, Robert did not object to the court's disposition order on the ground that section 361, subdivision (c)(1) was inapplicable to him, even though he had prior notice that the San Diego Health and Human Services Agency (Agency) would request J.T.'s removal from his custody under that statute.
Further unspecified statutory references are to the Welfare and Institutions Code.
For reasons we discuss, we conclude that Robert's claim is forfeited and decline to exercise our discretion to address it. Accordingly, we affirm the disposition order.
FACTUAL AND PROCEDURAL BACKGROUND
Robert and Hillary, who were members of the Marine Corps, married in February 2016 around the time that J.T. was born. In August 2016, Robert and Hillary both became stationed in San Diego and began living together in Hillary's home with J.T.
Beginning in October 2016, and continuing until July 2017, Robert and Hillary were involved in four reported incidents of domestic violence, which all occurred in or around the presence of baby J.T. During the first incident, Robert pulled Hillary's hair and "yanked" J.T. away from Hillary. After that episode, Robert moved out of Hillary's home, and the Marine Corps issued a military protective order (MPO) preventing the couple from contacting each other. However, they repeatedly violated the MPO.
In another incident, Robert pushed Hillary in the back, which caused her to lose her balance, shatter a window with her right arm, and cut her hand. In the most recent incident that occurred in Hillary's home, Robert, who was in the midst of moving back in to the home, "pinned [Hillary] to the ground and 'bashed' her in the face three times with his hand and then slapped her." Robert was arrested, released, and temporarily restricted to his military base.
After the fourth reported incident, the Agency filed a petition on J.T.'s behalf, alleging there was a substantial risk that J.T. would suffer serious physical harm as a result ongoing domestic violence between the parents. (§ 300, subd. (b)). At the detention hearing, the juvenile court found that Robert was the presumed father of J.T., the Agency made a prima facie showing that removal from Robert was necessary, and "[c]ontinued care in the home of the father [would be] contrary to the child's welfare." The court detained J.T. with Hillary subject to conditions, including that the maternal grandmother must reside with them in the family home (responsible adult condition) and that Robert must "vacate" the family home. Robert fully supported J.T.'s detention with Hillary and asserted no objection to the court's order.
The court and parties considered Hillary's home to be the "family home." Robert's counsel reported at the detention hearing that Robert was then living in Lake Elsinore.
Subsequently, the court authorized the Agency to remove J.T. from Hillary's care and detain J.T. in a foster home because there was no family member willing to reside with Hillary and J.T. for purposes of fulfilling the responsible adult condition. Moreover, the court received evidence that Hillary and Robert were continuing to contact each other in violation of a renewed MPO.
In a report filed September 25, 2017, the Agency recommended that the court remove J.T. from the custody of her parents under section 361, subdivision (c). The Agency's report was provided to all parties.
At the contested jurisdiction and disposition hearing held on October 30, 2017, the court received in evidence the Agency's filed reports in the matter without objection, including the report filed September 25, 2017. The court also heard testimony from Robert and Hillary. Through his testimony, Robert disputed the manner in which the incidents occurred as relayed by the Agency, but did not deny that police had responded to four separate domestic violence incidents between him and Hillary.
After considering the evidence and arguments of counsel, the court made a true finding on the petition's allegations under section 300, subdivision (b), by clear and convincing evidence. Further, the court removed J.T. from her parents' custody under section 361, subdivision (c)(1), based on its finding, by clear and convincing evidence, that there would be substantial danger to the physical health, safety, protection, or physical or emotional well-being of J.T. if she was returned home and there were no reasonable means to prevent removal from her parents' custody. Robert "submitted" on the issue of J.T.'s disposition, making no arguments. He did not object to the court's specified statutory basis to issue the disposition order or otherwise tell the court that J.T. was not living with him at the time the petition was initiated. Robert filed a timely appeal.
The court apparently believed that Robert was living with J.T. when the petition was initiated. As we have noted, at the detention hearing the court ordered Robert to "vacate" the family home and counsel reported a new Lake Elsinore address for Robert.
DISCUSSION
"The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent). [Citations.] Section 361, subdivision (c) governs the child's removal from the physical custody of a parent. 'It does not, by its terms, encompass the situation of the noncustodial parent.' " (In re V.F. (2007) 157 Cal.App.4th 962, 969.)
Given the limited applicability of section 361, subdivision (c)(1) (section 361(c)(1)), to custodial parents, various courts of appeal have concluded that, under sections 361, subdivision (a) (section 361(a)), and 362, subdivision (a) (section 362(a)), a juvenile court has power to effectively remove a child from a noncustodial parent. (E.g., In re Anthony Q. (2016) 5 Cal.App.5th 336, 347, 354 (Anthony Q.) [juvenile court had authority to limit control of or "remove" child from noncustodial parent]; In re Julien H. (2016) 3 Cal.App.5th 1084, 1089-1090 ["the dependency court has the power under [sections 361(a) and 362(a)] to limit the access of a parent with whom the child does not reside and thus effectively remove the child from the noncustodial parent"].)
Section 361(c)(1), provides in relevant part: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . . [¶] [t]here is or would be 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 the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody."
Robert contends that the juvenile court erred in applying section 361(c)(1) to remove J.T. from his custody because J.T. was not living with him at the time the petition was initiated. He seeks reversal of the court's risk of harm findings under section 361(c)(1). The Agency responds that Robert's claim on appeal is forfeited due to his failure to object to the court's statutory authority to issue the removal order or otherwise correct the court's belief that he was a custodial parent. Even if the claim is not forfeited, the Agency argues that any error was harmless because the juvenile court had authority to issue its removal order under sections 361(a) and 362(a).
It is undisputed that Robert did not object in the juvenile court to the application of section 361(c)(1) to him or to the court's related findings. Rather, he submitted the matter of J.T.'s disposition to the juvenile court for determination, with advance knowledge that the Agency sought removal under section 361(c)(1). Further, Robert acknowledges the rule that "the failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal." (Anthony Q., supra, 5 Cal.App.5th at p. 345; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 (Lorenzo C.) ["Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court."].) However, he contends that this appeal involves an important legal issue subject to our independent review and requests that we exercise our discretion to entertain his challenge to the juvenile court's order notwithstanding his failure to assert an objection. (Ibid.; In re S.B. (2004) 32 Cal.4th 1287, 1293 ["the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue"].) We conclude that Robert's claim is forfeited and decline to address the forfeited claim.
The record shows that Robert's living situation was highly fluid; he was moving back in with Hillary and J.T. on the same day as the last incident of domestic violence. If Robert had asserted that the juvenile court lacked authority under section 361(c)(1) to remove J.T. from him, then the court would have been able to determine whether he was, in fact, a noncustodial parent, and whether an order analogous to a removal order was appropriate under different statutes. The alleged error could have been easily avoided if it had been raised in the juvenile court. (See In re Wilford J. (2005) 131 Cal.App.4th 742, 754 ["The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected."]; Lorenzo C., supra, 54 Cal.App.4th at p. 1339 [forfeiture rule prevents a party from deliberately standing by in silence and allowing the proceedings "to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable"].)
Robert argues in his reply brief that sections 361(a) and 362(a) do not provide a juvenile court with authority to remove a minor from a noncustodial parent because such an interpretation of the statutes would render the detailed provisions governing removal under section 361(c) superfluous. Again, he failed to make this statutory interpretation argument before the juvenile court and may not raise it now. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582 ["A parent's failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court."].) In addition, since the interpretation argument was raised for the first time on reply, the issue has not been adequately briefed for our consideration. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-765.) Thus, we decline to reach the merits of the forfeited claim. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502 [collecting numerous dependency cases in "wide variety of contexts" in which appellate courts applied the waiver/forfeiture doctrine].)
Section 361(a)(1) provides in pertinent part: "In all cases in which a minor is adjudged a dependent child of the court on the ground that the minor is a person described by Section 300, the court may limit the control to be exercised over the dependent child by any parent or guardian and shall by its order clearly and specifically set forth all those limitations."
Section 362(a) provides: "If a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court."
We also observe that the issue presented in this case is no longer an ongoing issue in dependency cases. Effective January 1, 2018, the Legislature amended section 361 to provide juvenile courts with explicit authority to remove a child from an offending noncustodial parent. (See § 361, subd. (d), eff. Jan. 1, 2018.) --------
DISPOSITION
The juvenile court's disposition order is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.