In re Alexa P.

Filed 10/17/06 In re Alexa P. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Los Angeles County Superior Court, Steven Berman, Referee (pursuant to Cal. Const., art. VI, § 21). Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Objector and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Petitioner and Respondent.

INTRODUCTION

Ramon S. (father) is the presumed father of K. S. (born in June 1998), Ramon S., Jr. (born in September 2001), and L.S. (born in September 2003). Georgina P. (mother), is the mother of K.S., Ramon, L.S. and, with alleged father F.G., Alexa P. (born in June 1996). Father appeals from an order of the juvenile court that he complete an alcohol rehabilitation program as part of his reunification plan. Father contends that such a program does not address the issues that led to the dependency and that he was denied due process when the juvenile court imposed the condition in his absence and without notice. We affirm the juvenile court’s order.

BACKGROUND

According to a referral to the Department of Children and Family Services (Department), K.S. reported fighting in the home on February 2, 2006. She stated that she had seen father hit mother and that father had slapped K.S. A social worker interviewed K.S., who told the social worker that she had been sitting in the living room when father asked her why she had not combed her hair for school. K.S. responded that she was waiting for mother to comb her hair. Father told K.S. to go to the bathroom and brush her hair. While K.S. was in the bathroom, father came in and slapped her on the face with an open hand and picked her up by the hair and threw her against the wall.

According to K.S., mother went to the bathroom and asked what had happened. Father argued with mother, who walked towards the kitchen. Father punched mother in the face. K.S. had previously witnessed domestic violence between father and mother. K.S. stated that her parents fight more when father is intoxicated with alcohol. K.S. was “extremely afraid” to go home because father would be home from work, and she did not want him to hit her again. K.S. reported that father had slapped her in the past and that when father gets mad at her or Alexa, he hits them with a belt or pulls their hair.

The social worker also interviewed Alexa. According to Alexa, father got mad at K.S. and slapped her on the face, grabbed her by the hair, and threw her against the wall. When mother inquired about what had happened, father caller her “a lot of bad words,” and followed her into kitchen where he kicked her on the leg and punched her in the face. When father left the kitchen, Alexa was in the living room crying because she was afraid. Father asked Alexa why she was crying. Alexa responded that she was crying because he had hit mother. Father then slapped Alexa across the face. Mother told Alexa to hurry up and go to school.

Alexa reported to the social worker that father had hit her in the past, hitting her with a belt when he became angry with mother. Mother sometimes tried to defend Alexa, but father responded by punching mother in the face with a closed fist. According to Alexa, father hit mother three to four days a week, leaving bruises on her body. Lately, father had been very angry and had hit K.S. “a lot.” Alexa told the social worker that she felt sad and afraid because she knew when she returned home, father would hit “them” again for telling the police what had happened.

The social worker interviewed mother, who initially denied that father hit her, K.S., or Alexa. When the social worker told mother that she had to be truthful to protect the children, mother disclosed that father had been frustrated because when he had to go to work, K.S. and Alexa were not ready for school. Mother heard K.S. yell for her to go to the bathroom. When mother got there and asked what had happened, father responded that it was none of her business. Without checking to see if K.S. was okay, mother left and went to the kitchen. Father followed mother to the kitchen where he “started hitting her in the face with a closed fist.” Father then grabbed mother by the neck and threw her against the wall.

The social worker asked mother if father had hit the children in the past. Mother responded that the matter to which she had referred was the first time. The social worker again pressed mother to be truthful. Mother stated that she was “extremely scared” because the police had just left her apartment and had told her that they were going to arrest father. Father previously threatened mother that if she ever got him in trouble with the police, he would hit her “where it would hurt her the most.” Mother was also afraid that the allegations against father would cause him to hurt Alexa, who was not his daughter.

Mother told the social worker that she was afraid for her and her children’s safety. Father became violent at times and had hit K.S. and Alexa because they did not listen to him. Father hit the girls with a belt or slapped them on the face. Mother stated that father had hit her in front of the children and had choked her. The social worker asked mother if she ever attempted to leave father. Mother responded that she could not because he was her children’s father, all relationships have problems, and this problem was not a reason to leave her husband. Mother denied that father had a drinking problem, stating that he no longer drank alcohol.

The social worker asked mother if she would voluntarily enter a domestic violence shelter with her children. Mother would not. Mother also did not have any family members or friends with whom she could stay. The social worker told mother that if she did not make a decision about what to do to protect the children, the children would have to be placed in protective custody. Mother stated that it would be best if the social worker took the children, and that it would be easier for mother to get away from father without the children.

The Department detained the children, placed them in foster care, and filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b), (i), and (j)[1] alleging that father and mother have a history of domestic violence in which father had violently assaulted mother in the children’s presence. As to K.S., the petition alleged that on February 2, 2006, father physically abused her, pulling her hair and striking her across the face with his hand; that father previously had repeatedly physically abused her by throwing her against a wall and striking her about the head and body with his hands or a belt as a routine method of discipline; and that mother knew of such physical abuse but failed to take appropriate action to protect K.S. As to Alexa, the petition alleged that, on February 2, 2006, father physically abused her by striking her across the face with his hand; that father previously had repeatedly physically abused her by pulling her hair and striking her about the head and body with his hands or a belt as a routine method of discipline; and that mother knew of such physical abuse but failed to take appropriate action to protect Alexa. The petition alleged that father’s physically abusive behavior toward K.S. and Alexa and mother’s failure to intercede endangered the physical and emotional health and safety of K.S.’s and Alexa’s siblings and placed their siblings at risk of similar physical abuse. The petition alleged that father has a history substance abuse, that father is a current abuser of alcohol, and that mother knows of father’s substance abuse but has failed to take appropriate action to protect the children.

At the detention hearing on February 7, 2006, the juvenile court found a prima facie case for detaining the children and ordered reunification services for father and mother. The juvenile court asked mother if father, who was not present, drank or used drugs. Mother responded, “Not that I’m aware of. He used to drink alcohol but not drugs.” The juvenile court asked, “He used to or he does?” Mother replied, “He used to drink two or three beers but not during the days when he beat up the kids.” In a report prepared for the detention hearing, a social worker reported that mother claimed that father no longer drank. The juvenile court ordered weekly alcohol testing for father with the condition that if father missed a test or tested positive, he would attend an alcohol program.

In a report prepared for the March 16, 2006, jurisdiction hearing, the social worker reported interviews with Alexa and K.S. in which the social worker asked the children about father’s drinking. Alexa stated that father would drink two or three beers at parties and that she had seen him drunk twice. The social worker asked K.S. if she had ever seen father drunk. K.S. responded that father was “trying to quit.” The social worker asked K.S. how many times she had seen father drunk. K.S. responded, “Like when we go to parties, he drinks like four or five, a little bit. He kind of doesn’t wiggle [her description of how persons act when drunk], he acts normal, sometimes he gets mad and hits us.”

The social worker also reported interviews with mother and father about father’s drinking. Mother stated, “When my husband would get drunk he would come home and go to sleep, he would hug the girls and ask them for forgiveness. As God is my witness and knows that he never touched us when he was drunk.” The social worker asked mother how much father drank. Mother responded, “Two or three every eight days. Before, he would drink more, when I first met him he would get drunk every week, but when I came here (U.S.) he wouldn’t drink. When he would come home drunk he would just go to sleep on the couch because he would say that the odor from the alcohol was not good for the children.” Father stated, “I swear to God, who is present, sincerely, I don’t drink. I go to parties and I have two or three. To spend five dollars on alcohol knowing that I can take my kids to McDonald’s or give them that money, I just couldn’t.” The Department recommended reunification services including, among other things, that father submit 10 consecutive random alcohol tests and upon a missed or a positive test that father participate in a substance dependency program.

On March 16, 2006, father made his first court appearance at the jurisdiction hearing. Father and mother submitted on the social worker’s report. The juvenile court sustained the section 300 petition in part, as amended, and dismissed it in part. The juvenile court found true the allegations that father and mother have a history of domestic violence in which father had violently assaulted mother in the children’s presence; father physically abused the “children” on February 2, 2006; that father has a history of alcohol abuse; and that mother knows of father’s substance abuse but has failed to take appropriate action to protect the children.

Mother asked that the matter be set for a contested disposition hearing. Father’s attorney stated that father was “submitting on the disposition as to the case plan that he’s already signed.” Father’s attorney noted that the juvenile court had not yet been provided a copy of the signed plan. Father’s attorney stated that father wanted to waive his appearance at the contested disposition hearing so that he could go to work. The Department’s attorney stated that she had no objection to a contested disposition hearing and that the juvenile court could go over the disposition orders with father if it liked.

The juvenile court initially stated that it would not approve “testing and no program” for father. Father would have to take a “program.” Father’s attorney objected, stating that the agreement was that father would be tested and go to Alcoholics Anonymous (A.A.) -- if father missed a test or tested positive, then he would do a full program. Father’s attorney contended that mother and the children reported that father’s alcohol use was neither daily nor extreme. Moreover, father was taking medication for gastrointestinal problems that prevented him from drinking. Thus, father’s attorney argued, testing and A.A. attendance should adequately address any alcohol abuse issue.

The juvenile court agreed, stating that it was going to order, among other things, that father attend a Department-approved weekly program of 10 random drug and alcohol tests; if father missed a test or tested positive, he would be required to take a full drug or alcohol substance abuse program; and father was to attend a 12-step program such as A.A. at least once a week. The juvenile court informed mother that when it held the disposition hearing, it would order her to participate in a 52-week domestic violence counseling program, parent education, and individual counseling, and to attend at least five “Alanon” meetings. The juvenile court permitted father to waive his appearance at the disposition hearing.

Father did not attend the disposition hearing on April 24, 2006. His attorney stated that father was submitting on the case plan. The juvenile court declared the children to be dependents of the court and placed them in the custody of the Department for suitable placement. The juvenile court ordered mother to participate in a Department-approved, 52-week victim’s domestic violence counseling program, parent education, and individual counseling, and to attend at least 10 Alanon meetings. The juvenile court ordered father to participate in a batterer’s domestic violence program, parent education, and individual counseling. The juvenile court also ordered father to submit to weekly drug and alcohol testing and to participate in a rehabilitation program, stating, “I have no doubt that his drinking was out of hand.” A.A. or another 12-step program was to be a part of the alcohol program. Father’s attorney did not object when the juvenile court ordered father to participate in an alcohol program.

DISCUSSION

Father contends that the juvenile court erred in ordering him to complete an alcohol rehabilitation program as part of his reunification plan because such a program was not directed at the issues that led to the dependency. Father argues that the evidence did not show that he abused alcohol or that any domestic violence or physical abuse was related to alcohol abuse. Father also maintains that the juvenile court’s order violated his right to due process because he was not present when the juvenile court ordered the program and that he had not been given notice that the juvenile court intended to change the plan. Father has forfeited his contentions.

It is well settled that “a reunification plan ‘must be appropriate for each family and be based on the unique facts relating to that family.’ [Citation.]” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.) “The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the minor is a person described by Section 300.” (§ 362, subd. (c).)

It is also well settled that “[a]n appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261].) Dependency cases are not exempt from this forfeiture doctrine. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [13 Cal.Rptr.3d 786, 90 P.3d 746]; In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [102 Cal.Rptr.2d 196].) 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. (In re S.B., at p. 1293.) Although forfeiture is not automatic, and the appellate court has discretion to excuse a party’s failure to properly raise an issue in a timely fashion (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [69 Cal.Rptr.2d 917, 948 P.2d 429]), in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion ‘should be exercised rarely and only in cases presenting an important legal issue.’ (In re S.B., at p. 1293.)” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)

Father’s attorney did not object to the juvenile court’s order that father participate in an alcohol rehabilitation program as part of father’s reunification plan on the ground that the evidence did not support the condition, on the ground that the imposition of the condition in father’s absence and without notice that the juvenile court intended to change the reunification plan violated father’s due process rights, or on any other ground. Accordingly, father has forfeited review of his contentions. (In re Wilford J., supra, 131 Cal.App.4th at p. 754.)

Father contends that his attorney’s failure to object in the juvenile court did not forfeit his contentions because an objection would have been futile. At the jurisdiction hearing, father notes, the juvenile court initially indicated its intention to impose an alcohol program as part of father’s reunification plan, but reconsidered after argument and accepted the plan without the program. Thus, father reasons, when the juvenile court made the “same pronouncement” at the dispositional hearing, any objection would have been futile. Rather than showing that an objection would have been futile, however, the juvenile court’s actions at the jurisdiction hearing clearly demonstrate that the juvenile court was willing to consider objections and to change its rulings as appropriate.

Father also contends that his contentions are not forfeited because the juvenile court did not allow his attorney “an opportunity to object as it made the order without any argument because counsel believed the plan had already been approved.” The record does not support father’s contention. The juvenile court did not, in any way, prevent father’s attorney from objecting to its order.

Father further contends that his contentions are not forfeited because “all parties were well aware that this was an issue before the court and all, including Respondent, believed that it had been resolved at the jurisdictional hearing.” If father’s attorney believed that father’s participation in an alcohol rehabilitation program had been resolved previously in a way more favorable to father, then the appropriate way to express that belief to the juvenile court was through an objection, which father’s attorney failed to do.

Moreover, the juvenile court’s order that father participate in an alcohol rehabilitation program as part of father’s reunification plan was supported by substantial evidence and was not an abuse of discretion. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1007-1008.) Contrary to father’s argument that the evidence did not show that any domestic violence or physical abuse was related to alcohol abuse, K.S. told the social worker that when father drank, “sometimes he gets mad and hits us.”

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] All statutory citations are to the Welfare and Institutions Code unless otherwise noted.