In re J.R.

Filed 3/27/07 In re J.R. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Lisa H. (appellant), the mother of J.R. (the minor), appeals from orders of the juvenile court continuing the minor as a dependent child of the court and sustaining a supplemental petition removing the minor from appellants custody. (Welf. & Inst. Code, 387, 395.)^[1] Appellant makes numerous contentions of alleged prejudicial error. We shall affirm.

Facts and Procedural History

In May 2002, the Sacramento County Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the 10-day-old minor. The petition alleged that appellant had a substance abuse problem that rendered her unable to provide adequate care for the minor. The petition also averred appellant had been the victim of domestic violence. The juvenile court sustained the petition in part but placed the minor in appellants custody and later terminated the dependency proceedings.

On March 7, 2005, DHHS filed another original juvenile dependency petition, alleging appellant had a substance abuse problem from which she had failed to rehabilitate. The juvenile court sustained that petition in part as amended, but ordered the minor placed with appellant under the supervision of DHHS. Thereafter, on January 6, 2006, DHHS filed a supplemental petition on behalf of the minor, alleging the previous disposition had not been effective in the protection of the minor due to appellants current mental health status and to the deplorable condition of appellants home. The court sustained that petition, as amended.

In its December 2005 report, DHHS noted the minor appear[ed] to be very bonded to appellant, and had adjusted well in his placement with appellant. However, the minor needed dental treatment, and appellants home allegedly was in a deplorable condition. According to the social worker, the home was so cluttered it was difficult to walk inside, the toilet was inoperable, and there were moldy boxes throughout the home. Thereafter, appellant cleaned the home.

The report stated appellant had missed required drug court appearances and scheduled therapy and counseling sessions. Subsequent reports contained additional details about the condition of appellants home and appellants circumstances generally. On one occasion, appellant told the social worker that during a previous week appellant could not get off of the sofa because she was so depressed. The beds lacked bedding materials and the home emitted a foul odor. Moreover, the minor, who had severe dental cavities, was eating a bowl of candy, and a doctor who examined the minor found him to be very hungry. Appellants psychiatrist diagnosed appellant as suffering from depression, anxiety disorder, and substance abuse in remission.

A January 2006 report stated that DHHS had conducted a risk assessment of appellants situation, which ranked the minors level of risk as high for his continued placement in appellants home because of appellants inability to supervise and care for the minor adequately, as a consequence of appellants deteriorating mental health. The social worker concluded in part that appellant has been unable to maintain a safe and suitable living environment in her home for any extended period of time, and she has failed to maintain regular contact with her mental health provider to monitor her mental health status and psychotropic medication. Also of concern is the [minors] report that he was very hungry . . . . Given the condition of the home, [appellants] demeanor, and the fact that the [minor] stated he eats a lot of candy, it is likely [appellant] has not provided the [minor] with regular and proper nutrition, due to her depression. It is recommended that the Courts interventions are required to protect this [minor] and that the [minor] be continued a Dependent Child of the Sacramento County Juvenile Court. It is further recommended that the [minor] should not be placed with [appellant] and should remain in out of home placement . . . .

At the April 24, 2006, hearing on the supplemental petition, appellant denied the allegations contained in the petition and opposed the recommendation for placement of the minor outside of her custody. Instead, appellant sought return of the minor to her home. The juvenile court sustained an amended supplemental petition, continued the minor as a dependent child, and ordered the minor removed from appellants custody.

Discussion

I

Appellant contends the juvenile courts finding that the extent of her progress toward alleviating the reasons for the dependency was minimal must be reversed because it is not supported by substantial evidence. According to appellant, the record reflects she was complying with the components of her service plan and receiving favorable reports about her progress. Moreover, appellant argues, in most respects she was meeting the needs of the minor.

The juvenile court found appellant had partially complied with her case plan. The court also determined that the extent of progress made by appellant toward alleviating or mitigating the causes necessitating placement was minimal. In support of its findings, the court stated that the minors placement with appellant was no longer appropriate as [appellants] current mental health status has diminished and is impairing her ability to safely parent and supervise the [minor].

In considering appellants claim, we apply the substantial evidence rule. We must review the entire record in the light most favorable to the order and determine whether any substantial evidence supports the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.)

The record refutes appellants claims. It shows appellant was discharged from a substance abuse program for her failure to appear in drug court, did not attend the required number of Narcotics Anonymous meetings, and attempted to forge attendance slips. Moreover, she missed numerous appointments with her psychiatrist. As DHHS observed, appellant failed to maintain regular visits with her mental health provider for adequate monitoring.

It is commendable that appellant had submitted negative drug test results. However, as we have seen, in many respects appellant was not doing well, as she was failing to comply with plan requirements to participate in various treatment and therapy programs. The consequence of those failures, of course, was to place the minors well-being in jeopardy. The juvenile courts findings were supported by substantial evidence.

II

Appellant claims the jurisdictional findings and dispositional orders on the amended supplemental petition must be reversed because DHHS was required to file a subsequent, not a supplemental, petition to allege a new basis for jurisdiction.

The difficulty with appellants claim in this case is that the record does not reveal counsel for appellant, or appellant herself, tendered in the juvenile court any objection to the filing of a supplemental, as opposed to a subsequent, petition. The record reflects appellant had ample opportunities to bring that issue to the attention of the juvenile court if she had wished to do so. Yet she failed to avail herself of that opportunity.

The California Supreme Court has stated, An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261], italics in Doers.) The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . (People v. Walker (1991) 54 Cal.3d 1013, 1023 [1 Cal.Rptr.2d 902, 819 P.2d 861].) No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)

Here, as the record shows, at no time did appellant tender any objection to the filing of the supplemental petition. Thus, appellant is precluded from raising the claim here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198-1200.) Appellant has forfeited her claim. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)

III

Appellant argues the jurisdictional findings on the amended supplemental petition must be reversed because there was insufficient evidence that the previous disposition had been ineffective in the protection of the minor. According to appellant, the record contains no evidence that her difficulties caused harm to the minor.

The supplemental petition must contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3. ( 387, subd. (b).)

DHHS must prove the jurisdictional facts by a preponderance of legally admissible evidence. (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) In this case, we are persuaded the record contains sufficient evidence of harm to the minor to support the finding by the juvenile court that the previous disposition order had not been effective in protecting the minor. (Cf. In re Joel H. (1993) 19 Cal.App.4th 1185, 1200, 1203.)

On the record before it, it was reasonable for the juvenile court to find that the minor was not being protected adequately by appellant and the needs of the minor were not being met. The evidence before the court supports its finding that appellant no longer was capable of providing the minor with a secure and stable environment.

The supplemental petition, as amended, contained numerous allegations about the nearly uninhabitable condition of the home, which posed a substantial risk of detriment to the minors well-being. Moreover, the juvenile court had before it social workers reports that contained evidence suggesting appellants situation had not improved after the minor was detained. According to one of those reports, the home was in a grave condition, and appellant appeared to be having mental health difficulties. Finally, as another report noted, appellant failed to respond in a timely fashion to a request by the social worker to contact the social worker for a discussion of the case.

When the minor was in appellants home, he was found to be very hungry and had numerous dental cavities. In fact, the minor was in pain, and was not eating properly. Moreover, appellants mental health was deteriorating. On one occasion, appellant admitted to the social worker that for a period of one week she was unable to do anything because of her depression. On this record, which reflects that appellants fragile mental health was posing a substantial danger to the minor, there is substantial evidence to support the finding by the juvenile court that the previous disposition had not been effective in protecting the minor.

IV

Appellants penultimate claim is that the order removing the minor from her custody must be reversed because the record contains insufficient evidence to support the juvenile courts finding that DHHS had made reasonable efforts to prevent or eliminate the need for removal. Noting no homemaker services were offered to her, appellant asserts that the court could have ordered DHHS to impose stringent conditions of supervision over appellant while she retained custody of the minor.

On the record presented to the juvenile court, it is difficult to discern how supervision by DHHS or other alternatives to removal would have been successful in assisting appellant to maintain a home safe for the minor. Contrary to appellants assertion in her reply brief that there was no evidence appellants depression caused her housekeeping difficulties, appellant herself acknowledged to the social worker precisely that state of affairs existed when appellant stated she could not get off of the sofa because she was so depressed. Moreover, although appellant is correct that housekeeping issues were not named specifically in her case plan, that plan did require appellant to meet the needs of the minor. It is difficult to see how appellant could achieve that service objective if the home remained in a deplorable condition, as described by the social worker.

Despite the provision of numerous services designed to help appellant maintain custody of the minor, including visits by social workers and advice given to appellant, appellant continued to have difficulties providing a safe environment for the minor. Moreover, appellant failed to maintain a consistent record of attendance at mental health appointments, which was a critical component of her service plan.

In sum, no reasonable means short of removal of the minor would be adequate to protect the minors well-being. Accordingly, substantial evidence supports the finding by the juvenile court that DHHS made reasonable efforts to prevent the minors removal.

V

Appellants final claim is that the dispositional order removing the minor from the custody of appellant must be reversed because insufficient evidence supported that order. According to appellant, there was no evidence adduced to support the proposition that her mental health condition had affected her parenting abilities or placed the minor at a substantial risk of suffering harm. Appellant also argues the record does not contain evidence of neglect or a failure to supervise the minor. Finally, appellant avers, she took her medication, and there was evidence it was benefiting her.

DHHS concluded that, based on appellants mental health status and her inability to maintain a suitable home on a consistent basis, each of which posed a substantial danger to the minor, the minor should remain placed outside of her custody. The juvenile court found there would be a substantial danger to the minors well-being if the minor were returned home. The evidence adduced at the hearing on the supplemental petition supports that finding.

By her own admission, appellants depression had prevented her from maintaining a home suitable for the minor. As a result, the minors nutritional and dental needs had not been addressed adequately by appellant. Moreover, although she took her medication, appellant missed many mental health appointments. Despite months of assistance and input offered by social workers, appellants difficulties continued.^[2] Finally, contrary to overwhelming evidence in the record, appellant stated that her home was pretty good all the time, and appellant indicated she believed she was being punished for her past mistakes.

Substantial evidence supports the juvenile courts order removing the minor from appellants custody. The evidence adduced before the court supports its findings that appellant no longer was capable of providing the minor with an adequate home, necessitating the minors removal from her custody. (In re Joel H., supra, 19 Cal.App.4th at p. 1201.)

Disposition

The orders of the juvenile court are affirmed.

DAVIS , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.

^[2] For example, the most recent report by DHHS stated that appellant was required to attend weekly counseling sessions; however, the record reflects she was attending those sessions only monthly.