In re D.H.

Filed 10/11/07 In re D.H. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge and Heidi Shirley, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., Los Angeles County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff.

Roni Keller, under appointment by the Court of Appeal, for Respondent.

I. INTRODUCTION

This case arises under Welfare and Institutions Code,^[1]section 300 et seq. The mother, F. B., appeals from a January 8, 2007 placement order concerning the child, D. H. We affirm.

II. BACKGROUND

These proceedings concern: the mother; her male companion, D. B., Sr.; the child; the childs younger half-sibling, D. B., Jr.^[2]; and the childs non-offending presumed father, J. H. The sustained allegations were: the mother and D.B., who was the half-siblings father, had a history of violent verbal and physical altercations; the children had seen D. B. attack the mother, including grabbing her neck, forcibly pushing her, and striking her with his fist; the mother and D. B. had inappropriately physically disciplined the half-sibling with a belt and/or a hand; the mother had, in a state of depression, attempted suicide resulting in her hospitalization; the mother had been prescribed medication and directed to participate in therapeutic counseling, but she had not followed through with the treatment recommendations; and this conduct endangered the childrens physical and emotional health and safety and placed them at risk of harm. A mediation agreement entered on Thursday, January 4, 2007, stated in part: Children are home of mother. However, [the] fathers attorney to argue home of parents with the mother having physical custody and specifying the  . . . fathers visitation. (Original underscore.)

A jurisdiction and disposition hearing was held on Monday, January 8, 2007. As anticipated in the mediation agreement, the fathers attorney, Elizabeth Hong, requested the child be placed home of parents, with the understanding the mother would have primary physical custody. Ms. Hong explained, [The father] wants [the child] to remain . . . with the mother, but his concern is that should something happen in the future, which places the minor at risk of detention from the mother, the father is there and . . . willing to have the minor in his home. The mothers counsel, Donna Bernstein, objected. Ms. Bernstein argued: This is not a case under [section 361.2] where the child has been removed from the mother by clear and convincing evidence, and then the court must determine whether there is a parent or child with whom the child was not residing at the time; although the father acknowledged paternity, his contact with the child had been limited, and there is no legal basis in this situation where a father is not trying to exercise any of his legal rights to go to family law court before he came into this court to get more than . . . what he was entitled to before; Why didnt he go to family law court to try to get joint custody?; Why should he benefit because were in the system . . . ? Ms. Bernstein asserted: Under [section] 361.2, if a child is removed from a parent, then . . . you look at the parent with whom the child was not residing, this is not the case. This child was not removed at the time the petition was filed, was not removed in November, has not been removed at any time . . . , and we have an agreement that the child is going to stay living with the mother, so why would the court give this father more rights than he has had before . . . ? [] . . . [] . . . There is no reason to look for shared custody because the child is not being removed. The childs attorney, Susan Padnick, advised the court, [My client] has indicated[,] contrary to what [the mother is] saying, she does have a relationship with her father and also [her] paternal relatives . . . [and] would like to continue this relationship with him. The juvenile court ordered, The minor is placed home of parent under the supervision of the Department of Children and Family Services, with the mother having primary physical custody and the father having unmonitored visits, including overnights.

III. DISCUSSION

On appeal, the mother argues for the first time: there was no statutory authorization for the courts order; the juvenile court failed to comply with sections 361 and 361.2, subdivision (a); and she was denied due process. Those arguments were not raised in the juvenile court and are waived. The waiver doctrine 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 Christopher I. (2003) 106 Cal.App.4th 533, 548, fn. 1; In re S. O. (2002) 103 Cal.App.4th 453, 459-460 [failure to raise issue of sufficiency of dependency petition]; In re L.Y.L. (2002) 101 Cal.App.4th 942, 956, fn. 8 [adequacy of assessment report not raised below]; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037 [father waived any procedural defect by litigating on the merits]; In re Jamie R. (2001) 90 Cal.App.4th 766, 771-772 [mother waived statutory right to have counsel present at in camera hearing]; In re Dennis H. (2001) 88 Cal.App.4th 94, 98 [father waived claimed error as to district attorneys participation by failure to object]; In re Dakota S. (2000) 85 Cal.App.4th 494, 496 [mother waived objection to guardianship order]; Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149 [mother waived lack of notice argument by failure to object]; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152 [father waived lack of notice assertion]; In re Levi U. (2000) 78 Cal.App.4th 191, 201 [mother waived due process claim]; In re Urayna L. (1999) 75 Cal.App.4th 883, 886 [mother waived objection to Department of Children and Family Services report]; In re Janee J. (1999) 74 Cal.App.4th 198, 209-210 [mother waived lack of notice claim]; In re Jesse C. (1999) 71 Cal.App.4th 1481, 1491 [lack of notice waived]; Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1024 [father waived evidentiary objections]; In re Alexis W. (1999) 71 Cal.App.4th 28, 36 [mother waived claim as to denial of section 388 petition when counsel agreed court could treat petition as trial brief and resolve in context of review hearing]; 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 Meranda P. (1997) 56 Cal.App.4th 1143, 1157-1158 [mother waived right to counsel claim]; In re Amanda D. (1997) 55 Cal.App.4th 813, 819-820 [father waived objection re lack of minors testimony]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [father waived contention re lack of bonding study by failure to request]; In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [failure to raise forum non conveniens objection in trial court]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885 [mother waived the right to contest finding of reasonable reunification efforts by not objecting in trial court]; In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642 [failure to raise sibling visitation issue in superior court]; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811 [department of social services failure to dispute fathers right to reunification services in trial 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 [fathers failure to pursue issue waived claim expert psychological testimony should have been admitted at dispositional proceeding]; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198, 1200 [lack of notice waived when parent opposed proceeding on the merits]; 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 courts use of clear and convincing evidence standard]; In re Richard H. (1991) 234 Cal.App.3d 1351, 1362 [parent waived right to raise timeliness issues by failing to assert error in trial court]; In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1484-1485 [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 [parents 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].)

Further, the exception to the general forfeiture rules has no application to this case. In the case of In re S.B. (2004) 32 Cal.4th 1287, 1293, our Supreme Court described the limited exception in dependency appeals to the foregoing forfeiture rules: [T]he appellate courts 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 SanFrancisco (2002) 29 Cal.4th 164, 183]; Hale v. Morgan [(1978) 22 Cal.3d 388], [] 394.) Although an appellate courts 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.

In any event, there is no merit to the mothers arguments. The juvenile court had full authority to order placement with both parents with the mother retaining primary custody. We note the juvenile court has broad authority to issue orders intended to protect a dependent childs well-being. (In re Neil D. (Aug. 28, 2007, B195487) __ Cal.App.4th __, __ [2007 WL 2421543]; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 309; In re Carmen M. (2006) 141 Cal.App.4th 478, 486; In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) Under section 362, subdivision (a), the juvenile court was authorized to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of children subject to dependency jurisdiction. (See In re Neil D., supra, __ Cal.App.4th at p. __; Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 309; In re Carmen M. , supra, 141 Cal.App.4th at p. 486.) Moreover, the Legislature has mandated that the juvenile court preserve and strengthen a childs family ties whenever possible. ( 202, subd. (a); see In re Marilyn A. (2007) 148 Cal.App.4th 285, 314; In re Jerry P. (2002) 95 Cal.App.4th 793, 811, fn. 56.) The child was not removed from the mothers physical custody; therefore, the substantial danger, severe emotional damage, sexual abuse, or other findings specified in section 361, subdivision (c) were not required. In addition, the mothers counsel never asserted visitation with the father, who is a non-offending parent, posed any risk of detriment to the child and there was no evidence to that effect. (See  361.2, subd. (a); Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699; Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 63 Cal.App.4th 1299, 1305.) The child wanted to continue her relationship with her father and her paternal relatives. Moreover, the juvenile courts order concerns placementwhere the child will liverather than legal custody. (See In re Austin P. (2004) 118 Cal.App.4th 1124, 1130-1131.) There is no merit to the mothers contentions.

The January 8, 2007 placement order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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^[1] All further statutory references are to the Welfare and Institutions Code.

^[2] The mothers companion and the childs half-sibling have the same initials, D.B. For purposes of clarity and not out of any disrespect, we will refer to the mothers companion as D. B. We will refer to the half-sibling as such.