In re Zachary W.

Filed 4/25/07 In re Zachary W. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.

Shannon R. appeals a juvenile courts order granting the San Diego County Health and Human Services Agency's (the Agency) Welfare and Institutions Code section 388^[1]petition that removed her children, Zachary W. and Cassandra W., from her custody. The order placed the children in the physical custody of their father, Daniel W., and ordered Shannon's visits to take place outside of the family home. Shannon argues the court abused its discretion by ordering her to leave the family home without following the requirements of section 213.5^[2]and California Rules of Court, rule 5.630(b),^[3]and no substantial evidence establishes the order was in the children's best interests. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On October 2, 2003, the Agency petitioned on behalf of two-year-old Zachary and 11-month-old Cassandra because, after agreeing to have domestic violence and drug abuse treatment, the children's parents, Shannon and Daniel, continued to engage in domestic violence and to use dangerous drugs. The court ordered the children detained.

Shannon and Daniel submitted to the court's jurisdiction and to the disposition recommended by the Agency. The court ordered them to comply with services, including participation in the Substance Abuse Recovery Management System (SARMS), domestic violence treatment, individual counseling, parenting education and psychological evaluations. It placed the children with a relative.

For the six-month review hearing, the social worker reported Shannon began therapy, but then changed therapists and did not follow through with therapy or domestic violence treatment. In March 2004, the court terminated her from the SARMS program for unsuccessful participation. Daniel, on the other hand, began participating in services.

At the six-month review hearing in May 2004, the court terminated Shannon's reunification services, but continued Daniel's services and continued the children in relative placement. At the 12-month hearing in November, the court again extended Daniel's services for six more months. At the 18-month hearing on March 29, 2005, the court retained jurisdiction, ordered the children placed in Daniel's physical custody and ordered him to comply with his family maintenance plan. In February 2005, Shannon had resumed visiting. At her request, the court ordered her screened for drug court.

At the review hearing on September 25, 2005, the court retained jurisdiction, continued family maintenance services and ordered Shannon to undergo on-demand drug tests and have a psychological evaluation.

On January 19, 2006, at Shannon's request, the court placed the children in the physical custody of both parents and confirmed the family maintenance plan. However, the social worker reported that when Shannon returned to the home, she stopped complying with services. On March 24, Shannon's drug test was positive for amphetamine and methamphetamine.

On July 6, 2006, the Agency petitioned under section 388 to change the order placing the children with both parents and requested that the court place them exclusively with Daniel and that Shannon be ordered to leave the family home. As changed circumstances, the Agency reported Shannon was in poor compliance with drug treatment requirements and did not drug test from May 1 to June 20.

At the August 18, 2006 hearing on the Agency's section 388 petition, the social worker testified Shannon was not complying with court-ordered services. She also testified that she received two referrals the children had been left unsupervised for several hours outside the family apartment; and that Shannon had a positive drug test in March, had stopped going to SARMS and was not drug testing.

The court found by clear and convincing evidence there was a change of circumstances that presented a substantial danger to the children and there were no reasonable means to protect them, except removal from Shannon's custody. It removed the children from Shannon's custody, placed them in Daniel's physical custody and ordered liberal supervised visitation for Shannon at a location away from the family home.

DISCUSSION

Shannon contends the court abused its discretion by ordering her to leave the family home without following the requirements of section 213.5, subdivision (e) and without making the required findings. She further argues the order is based upon insufficient evidence that she engaged in the conduct set forth in section 213.5, subdivision (e), the order was not issued on the form approved by the Judicial Council, and was not served on her as required by section 213.5. Finally, she contends there is no substantial evidence that establishes the order was in the children's best interests. The Agency responds: (1) Shannon forfeited the issues she raises; and (2) in any event, the issues are meritless as the court did not issue a temporary restraining order excluding Shannon from the family home and therefore compliance with the procedures of section 213.5 was not required.

We need not decide whether the court erred in not following the procedures for a removal order under section 213.5 and rule 5.630(b), as Shannon forfeited her arguments by not raising them in the juvenile court. "A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. . . . [] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Forfeiture applies to claims of statutory error and to claims of violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th 193, 198.)

At the juvenile court hearing, Shannon did not claim the Agency used the wrong procedure to exclude her from the family home or that it failed to make the required findings. Instead, her attorney argued the court should deny the Agency's section 388 petition because the children were not in danger. The attorney also suggested that if the court were inclined to grant the petition, it could consider allowing Shannon to visit in the home if she enrolled in a treatment program and made progress. Because Shannon did not argue in juvenile court that adherence to the procedures of section 213.5 and rule 5.630(b) were required, we conclude she has forfeited the arguments on appeal.

Further, Shannon has not shown that the court abused its discretion in granting the Agency's petition. Under section 388, a party may petition the court to change, modify or set aside a previously made order. The petitioner must show by a preponderance of the evidence a change of circumstance or new evidence and that the proposed change is in the child's best interest. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) A reviewing court will not disturb a court's ruling in a dependency proceeding " '. . . "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318, quoting in re Geoffrey G. (1979) 98 Cal.3d 412, 421.)

The Agency established changed circumstances in that Shannon was not complying with the family maintenance plan requirements that she have drug treatment and drug tests. She said she was not using drugs, but tested positive for methamphetamine in March 2006 and did not test after that time. Indications Shannon was using drugs caused concern that she, who was home alone with the children during the day, was not able to care for them safely. The social worker received two referrals that the children had been left outside for several hours in a driveway of the family's apartment complex. When the social worker went to investigate, Shannon would not answer the door, although she was in the home.

The court found it was in the best interests of the children to remove them from Shannon's custody, as there was a substantial danger to their physical and emotional health and no other reasonable means to protect them. The court stated the factual basis for its finding was Shannon's significant history of chemical dependency and the fact that, although she had been provided services to assist her, she chose not to participate. To protect the children, the court placed them in Daniel's physical custody and required that Shannon's visits take place outside of the home. Substantial evidence supports the court's decision the orders were in the children's best interests. The court did not abuse its discretion.

DISPOSITION

The orders are affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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

^[2] Section 213.5 provides procedures and requirements for a court to employ during a dependency period when issuing ex parte orders including, inter alia, excluding a person from the dwelling of the person who has care, custody and control of a child.

^[3] All further rule references are to the California Rules of Court.