Filed 4/5/18 In re J.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re J.H., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.H.,

Defendant and Appellant.


E069352

(Super.Ct.No. J271153)

OPINION


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Appellant K.H. (mother) appeals from the juvenile court’s jurisdiction and disposition order, sustaining jurisdiction over her son, J.H., and ordering him placed in a group home. (Welf. & Inst. Code, § 300, subd. (b).) Mother challenges the sufficiency of the evidence warranting removal of the minor from her custody. We reject her challenge and affirm.
I. FACTS AND PROCEDURAL BACKGROUND
A. Detention.
On May 24, 2017, mother was arrested for child cruelty after the minor accused her of causing a bruise on his right eye and a bite mark on his arm. The minor was transported to the San Bernardino County Children and Family Services (CFS), where he explained how he received the injuries: While driving home with mother in the passenger seat, he swerved around another vehicle, causing her to become upset. After pulling into the garage at the family home, mother began “swinging her arms,” hitting him on the right cheek, and then biting him when he tried to block her punches. The minor also told the social worker about a physical altercation with his older brother during the previous weekend. He said that mother separated them and punched him in the face, leaving a bruise under his right eye. The minor’s father is serving a prison sentence with a release date set for 2045.
When the social worker interviewed mother, she confirmed minor’s story about his altercation with his brother and the “near collision in the car,” adding that she threw a water bottle at him; he put his forearm up against her neck, making it difficult for her to breathe, and she “bit him to get him off of [her].” She noted that CFS had been to her home on prior occasions and has observed that she did not hit or abuse the minor. Mother opined that the minor wanted to see her in jail and had no remorse for his actions.
On May 26, 2017, CFS filed a dependency petition alleging that the minor, age 17 (born March 2000) came within the provisions of section 300 petition, subdivisions (a) (serious physical harm) and (g) (no provision for support). The minor was detained and placed in a group home.
B. Jurisdiction/Disposition.
In the jurisdiction/disposition report filed on June 19, 2017, CFS recommended family reunification services and that the minor remain in a group home. On May 27, 2017, the minor stated that he had lied to the social worker about mother; he had trouble controlling his emotions; he had not taken his medication on May 24, 2017; and that the incident on that date was “blown out of proportion.” On June 7, 2017, the minor again denied any abuse or neglect by mother, claiming that he had “exaggerated the truth” because he was upset with her. He admitted that they “do have verbal arguments,” but he said he is not in fear of her causing him physical harm; he expressed his desire to return home. The social worker noted that minor “did not express any remorse regarding lying about his mother and the events that transpired which led to his removal. [He] was very matter of fact about his deceit and accepted no responsibility for his actions.”
When the social worker met with mother, she denied ever abusing or neglecting the minor. On the day of altercation, she admitted she was upset with the minor and she “attempted to slap him on the face.” She repeated her claim that he put his forearm against her neck, making it difficult to breathe, so she bit him to break free. She said he told her “he would take everything away from her by calling Law Enforcement.” She was worried she would lose her employment as a therapist for the County of San Bernardino. Mother claimed the minor “verbally abuses and harasses her”; he has broken the lock on her door; she is “very afraid of him,” and “afraid that one day he will kill her.” She “feels that he has behavioral and emotional issues that she is no longer able to provide care and supervision for.”
The minor’s brother told the social worker that the minor screams at mother, calls her names, and creates “a great deal of chaos” in the family home; mother “is unable to control [him] because she is afraid of him and because his negative behaviors are escalating.” The brother’s girlfriend, who also resides in the family home, agreed with the brother’s comments and disclosed that minor physically assaulted her in 2016 by punching her in the chest and slamming the dishwasher door on her leg.
Prior to his removal, the minor was seeing a psychiatrist and a therapist, and he had been prescribed psychotropic medication since 2004. He has a long history of mental health issues. He started displaying angry outbursts and uncontrollable tantrums at the age of three. He has been diagnosed with bipolar disorder and intermittent explosive disorder. He was placed on a section 5150 hold at the age of eight due to uncontrollable anger. In 2014, he attempted suicide by jumping from a two-story building at his high school. For two years he received ongoing treatment for a seizure disorder. However, when he was told that he would not be able to obtain a driver’s license due to that type of disorder, he admitted that he had been “faking” it for attention.
The social worker opined that the prognosis for reunification is “very guarded.” While mother tearfully expressed how much she loved the minor and missed him, she also stated that she was relieved to be free from his verbal abuse when he became upset, angry, or did not get his way. Mother feels that she is no longer able to provide care and supervision for the minor’s “behavioral and emotional issues.” According to the social worker, mother and the minor love each other; however, “they have an extremely unhealthy, dysfunctional and volatile relationship.”
On June 20, 2017, at the jurisdiction/disposition hearing, the parties informed the court that mediation may assist in “resolving any of the issues as well as dispositional orders.” Thus, the court set the matter for mediation and continued the hearing.
According to the August 30, 2017, mediation report, mother and CFS agreed that the subdivision (a) allegation would become a subdivision (b) allegation, rewritten to state: “The mother inappropriately disciplined the child, placing the child at risk,” and the subdivision (g) allegation would be dismissed. The parties also agreed to family reunification services. Mother signed the “Social Worker/Parent/Caretaker Agreement Form,” which provided: “Mother and CFS agree to FR services. Mother agrees to individual counseling, parenting, domestic violence tx and conjoint counseling when deemed appropriate.”
At the further jurisdiction/disposition hearing on September 11, 2017, the juvenile court considered all of CFS’s reports, along with the mediator’s report. A Waiver of Rights Form (JV-190) was signed by mother and filed with the court. When the juvenile court inquired as to whether mother understood “all the possible consequences,” she stated, “No. Like, what are the consequences?” The court handed the form back to mother, who conferred with counsel and then indicated to the court that she understood the consequences. The court then accepted mother’s waiver, finding “it’s knowing, intelligent, and voluntary.” Mother submitted to the petition on the basis of the social worker’s report and documents. She also submitted as to jurisdiction, and the court sustained the subdivision (b) allegation, as rewritten and per the agreed-upon mediation. The juvenile court noted that the “agreement is family reunification services to the mother to include counseling, parenting, domestic violence, and conjoint counseling when appropriate.” The court then asked if anyone wished to be heard as to disposition. Mother’s counsel replied: “I will submit on mother’s behalf as to the family reunification services. I believe she is enrolled in all her services. She indicates to me today that conjoint counseling should be starting shortly. She is a little concerned that the minor is not getting the services that he needs such as anger management. He has not been enrolled in that yet. [¶] And I am asking the Court authorize unsupervised, overnights, and weekends based on the minor’s age.” The court found clear and convincing evidence for removal of the minor and ordered reunification services and supervised visitation.
II. DISCUSSION
Mother challenges the juvenile court’s dispositional order, contesting that there is insufficient evidence to support the minor’s removal from her care. We disagree.
A. Forfeiture Issue.
Before discussing the merits of mother’s appeal, we consider CFS’s argument that mother has forfeited her right to appeal the dispositional order because she failed to object to it and, in fact, agreed with it by participating in mediation and signing the Social Worker/Parent/Caretaker Agreement Form.
With respect to the petition’s jurisdictional allegations against mother, the mediation report states: “Mother submits rewritten: The mother inappropriately disciplined the child, placing the child at risk.” We read this to mean that mother was willing to submit the issue to the juvenile court without further proceedings. Submitting an issue is not a waiver of appeal rights: “This court has strictly enforced unambiguous written stipulations in the juvenile court, notwithstanding parents’ claims that the forms are not intended to bind the parties but to guide the trial court. [Citations.] The situation is less clear, however, where the party merely submits to the findings rather than stipulating to them. In In re Richard K. (1994) 25 Cal.App.4th 580 . . . the court explained: ‘[I]t is not uncommon in dependency proceedings for a parent to “submit” on a social services report. [Citation.] By submitting on a particular report or record, the parent agrees to the court’s consideration of such information as the only evidence in the matter. Under such circumstances, the court will not consider any other evidence in deciding whether the allegations are true. [Citation.] [¶] Notwithstanding a submittal on a particular record, the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved. [Citation.] In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. [Citation.] Thus, the parent does not waive for appellate purposes his or her right to challenge the propriety of the court’s orders.’ [Citations.]” (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1186.)
Mother initially denied the allegations of the petition; however, she did not ask to have the minor placed with her on family maintenance. At the jurisdiction/disposition hearing, mother acknowledged that she had signed a waiver of rights form wherein she agreed to waive her rights and submit on the allegations in the petition, as rewritten per mediation. This is not the same as agreeing to the allegations of the petition. It merely means that she did not wish to present evidence at the hearing. Instead, she was willing to have the juvenile court decide the issues based on the social worker’s reports and other information already presented to the court. (Rosa S. v. Superior Court, supra, 100 Cal.App.4th at p. 1186.)
Our reading of the ambiguous phrase in the mediation report is confirmed by the waiver of rights form itself. It states that mother wishes to “submit the petition on the basis of the social worker’s or probation officer’s report and other documents, if any.” The form also warns mother that if she submitted the petition on the report, “the court will probably find that the petition is true.”
Mother did not stipulate to the juvenile court’s dispositional findings and did not waive her right to challenge them. The forfeiture rule is therefore inapplicable.
B. Sufficiency of the Evidence to Support a Finding Under Section 361.
Section 361, subdivision (c) provides that children shall not be removed from the physical custody of a parent with whom they were residing when the dependency petition was filed unless there is clear and convincing evidence of any of several enumerated circumstances. Clear and convincing evidence is required in order to protect the parents’ constitutional rights to the care, custody and management of their children. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) Out-of-home placement is a “last resort, to be considered only when the child would be in danger if allowed to reside with the parent.” (Id. at p. 525.) The juvenile court must also determine whether reasonable efforts were made to prevent or to eliminate the need for removal of the child from his or her home, and it must state on the record the facts on which the decision to remove the child was based. (§ 361, subd. (d); In re Henry V., supra, at p. 525.) “The focus of the statute is on averting harm to the child. [Citations.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6.) Accordingly, “[t]he parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate.” (In re Diamond H., supra, at p. 1136.)
Removal findings are reviewed under the substantial evidence test, drawing all reasonable inferences to support the findings and deferring to the juvenile court’s findings on the issues of credibility. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Further, evidence of past conduct may be probative of current conditions, particularly where there is reason to believe the conduct will continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
Here, the trial court made the finding that “continuance in the home of the mother is contrary to the child’s welfare and that there is clear and convincing evidence to show that the child should be removed from the physical custody of the parents in that there is a substantial danger to the physical health and safety and no reasonable means to protect him absent the removal.” Mother contends there is “no evidence in the record the court or [CFS] considered any alternative means to prevent removal.” We disagree.
At the jurisdiction/disposition hearing, the court began by stating, “I understand that . . . the issues have been resolved. I am prepared to make the changes as long as I get a waiver of defect and stip[ulation] to a cause of action on the modified count.” Mother’s counsel replied in the affirmative. The court accepted mother’s waiver of rights, the social worker’s reports and the mediation report, stated that it had “read and considered the reports,” and then pronounced the order as mediated by the parties. When the court’s findings contradicted the terms specified in the mediation agreement, mother’s attorney pointed it out, seeking a correction. No objection or correction was made to removal of the minor from mother’s custody.
Although the court did not specifically identify the evidence it was relying upon in finding that continued removal of the minor was necessary, the record supports the implicit finding there was no alternative means to prevent removal. The following evidence was before the court: (1) Mother “stated she has no available relatives to care for the [minor].” (2) The minor has “a long history of mental health issues” that mother has been unable to control. (3) The minor has “anger management issues . . . which can lead to him verbally or physically assaulting” his mother, brother or brother’s girlfriend; he is “very manipulative”; and he “appears to be very emotionally immature given his age.” (4) Mother admitted that “she is no longer able to provide care and supervision for” the minor. (5) Mother and the minor are “involved in a relationship where domestic violence is present and was escalating prior to CFS intervention on May 24, 2017.” (6) Mother and the minor have “an extremely unhealthy, dysfunctional and volatile relationship.” (7) Given the minor’s age, he “needs to begin preparing for his future as an adult,” and thus, he has been referred to the “ILP program in an effort to assist with this transition into adulthood.” (8) Mother and CFS participated in mediation and agreed that the minor would be removed from her home and that the parties would participate in family reunification.
Mother asserts that CFS failed to consider the possibility of the minor remaining in the family home with the adult brother, while mother resides elsewhere. However, mother told CFS there were no available relatives to care for the minor. If the minor’s adult brother was available, mother should have disclosed his availability. Also, CFS noted that the minor needed to begin preparing for adulthood; residing in the family home was not helping him do so.
Mother also expressed concern that CFS “did not consider alternatives to [the minor’s] out-of-home placement given his desire to return home, and in light of his troubled past.” We find no merit to her concern. CFS noted that the minor “does not appear to have any remorse for his actions,” he is “very manipulative,” has “difficulty telling the truth,” “appears to be very emotionally immature given his age,” and is ill-prepared for adulthood. Recognizing these character traits, CFS sought a placement for minor that promoted positive changes in his life, making him ready for adulthood. To that end, CFS placed minor in a group home and referred him to the “ILP program” wherein the minor executed a “Transitional Independent Living Plan & Agreement” which identified specific goals he should achieve in six months. Considering the minor’s lifelong inability to control his anger, coupled with his emotional immaturity, the best way “to protect the minor and preserve the family unit” was to take him out of the environment that was hindering his growth.
Notwithstanding the above, mother argues that most of the evidence offered by CFS was “stale by the time of the dispositional hearing three months later and should not be relied upon as a foundational fact to support” removal. If the evidence was stale, it was due to the fact that the attorneys for both CFS and mother informed the court that they desired to talk to a mediator to resolve the allegations. Thus, on June 20, 2017, the court set a mediation for August 30, 2017, and a further jurisdiction/disposition hearing for September 11, 2017. Following mediation, the parties agreed on a resolution of all the issues and so informed the juvenile court. The court then relied on the mediation agreement, along with the social worker’s reports. Mother never challenged the evidence in the reports as being stale. She never offered any updated information. And she has not presented this court with any evidence to suggest that a supplemental jurisdiction/disposition report would have provided evidence to show that continued removal of the minor from mother’s home was unnecessary.
Based upon the above, we conclude that the record contains sufficient facts to support the juvenile court’s decision to remove the minor from mother’s custody.
III. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.
We concur:

MCKINSTER
J.

FIELDS
J.