Opinion
B326548
03-06-2024
In re LUNA D., a Person Coming Under the Juvenile Court Law. v. KATHERINE P., Defendant and Appellant. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County, No. 22CCJP04073 Charles Q. Clay III, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Katherine P. (mother) appeals from a judgment of the juvenile court asserting jurisdiction over Luna D. (born March 2021) and a subsequent dispositional order. We affirm the judgment and order.
Luna and Damien P. (born July 2019) have different fathers. While mother purports to appeal as to both children, she filed a notice of appeal only as to Luna. As the juvenile court bypassed family reunification services for both mother and Damien's father, it set a section 366.26 hearing for Damien at the jurisdictional hearing. Mother's sole recourse to challenge the juvenile court's orders as to Damien was to proceed by way of extraordinary writ. Mother failed to do so. In addition, the Los Angeles County Department of Children and Family Services (DCFS) has provided a request for judicial notice showing that mother's parental rights to Damien have been terminated. DCFS's request for judicial notice is granted. (See In re N.S. (2016) 245 Cal.App.4th 53, 57 ["dependency counsel have a duty to bring to the appellate court's attention postappellate rulings by the juvenile court that affect whether the appellate court can or should proceed to the merits"]; In re Josiah Z. (2005) 36 Cal.4th 664, 676 [suggesting postappeal evidence may be considered for the purpose of upholding an order of the juvenile court]) The appellate docket does not reveal that mother has appealed from the order terminating her parental rights to Damien. Thus, not only has mother failed to appeal from the juvenile court's jurisdictional and dispositional orders as to Damien, any such appeal would be improper and moot. We decline to grant mother's request that this appeal, which did not include Damien's case number, be treated as a petition for extraordinary writ as to Damien. Mother cites no case law permitting this court to do so. Damien is not a subject of this appeal and will be discussed only as necessary.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY Child welfare history
Prior to the instigation of these proceedings, DCFS filed four petitions pursuant to Welfare and Institutions Code section 300 on behalf of mother's children.
All future undesignated statutory references are to the Welfare and Institutions Code.
In November 2016, the juvenile court sustained a section 300 petition filed on behalf of mother's children (Luna's half siblings) Kevin P., Israel P., Emery U., Aiden P., and Sebastian P., based on mother engaging in violent altercations with her male companion, Jose P.
In June 2017, the juvenile court sustained a section 300 petition filed on behalf of mother's children Aiden, Sebastian, and Jose P., Jr. (Jose), based on mother and Jose's father engaging in violent altercations in the children's presence; mother's male companion, Joseph S., driving a vehicle while under the influence of methamphetamine while mother and the children were in the car; mother's 11-year history of drug abuse; and mother's history of violent altercations with Jose P.
In July 2018, the juvenile court sustained a section 300 petition filed on behalf of mother's child, Serenity T., based on mother's 11-year history of drug use and current abuse of methamphetamine; Arthur T.'s history of substance abuse; and mother's mental and emotional problems. In November 2018, the court sustained a supplemental petition based on mother having placed Serenity at risk by continuing to use illicit drugs and failing to participate in a rehabilitation program.
Arthur T. was the father of Serenity and Damien prior to termination of his parental rights.
In November 2019, the juvenile court sustained a section 300 petition filed on behalf of Damien based on mother's and Arthur T.'s histories of substance abuse (including methamphetamine) and Arthur T.'s history of engaging in violent altercations with mother. Mother subsequently completed a drug program and a parenting course, attended individual counseling and submitted to drug testing. Mother reunified with Damien.
In June 2021, mother's children Serenity, Jose, Aiden and Sebastian were adopted.
Referral and investigation in the present matter
On August 19, 2022, DCFS received a referral alleging mother had custody of two of her children, had relapsed and was living in various motels with friends. The caller reported mother's three year-old and one year-old were with family members, but mother's whereabouts were unknown.
The social worker spoke with maternal great aunt (MGA), who reported mother had an open case with DCFS the previous year, during which Damien was placed in MGA's care. Mother completed treatment and reunified with Damien, but roughly one month after reunification, mother contacted MGA and asked if she could leave Damien with MGA. Mother said she would assist MGA in obtaining guardianship and adoption of Damien. MGA had a notarized letter from mother giving her temporary guardianship of the child. Since Damien returned to MGA's home, mother had no contact with him. Damien was afraid of mother and referred to her by her first name, saying, "I don't want Kathy to come get me." MGA made several attempts to contact mother regarding guardianship, but mother never followed through. MGA reported that mother relapsed and was using methamphetamines that mother had used on and off for several years. MGA noted that her sister and nephew reported seeing mother, who had lost a lot of weight and was "hanging out with other drug users." Damien was doing well in MGA's care. MGA reported that Damien's father was Arthur T., whose parental rights had been terminated.
In an interview with a social worker, maternal grandmother (MGM) reported mother has ongoing substance abuse issues since she was 14 years old. Mother goes through periods of sobriety then relapses. Mother recently lost a lot of weight, and MGM suspected mother was using drugs because she was recently kicked out of her residence and was homeless. Mother frequently called asking for money, which MGM suspected mother used for drugs. Mother stopped using drugs during her last pregnancy but resumed using "crystal meth" after Luna was born.
The social worker spoke with Luna's paternal grandmother (PGM), who was not sure whether mother was using drugs again but reported mother had lost a lot of weight and was very sick. Luna had been in PGM's home for about a month. Mother dropped off Luna because of renovations going on in mother's home. Mother talked to PGM about providing PGM with temporary guardianship of Luna but had not followed up.
The social worker spoke with Luna's father, Jose D. (father), who reported he was not sure what was going on in mother's life as he had not spoken to her in about two years. He reported mother dropped off Luna with PGM about three weeks earlier. Father denied any custody agreement being in place and stated he was willing to file for custody of Luna. Father denied any mental health history or past domestic violence. He reported smoking marijuana every other day, though not around Luna or in the home. Father expressed willingness to drug test but was not interested in any other services.
After many attempts to reach mother, the social worker was able to interview her on September 1, 2022. Mother denied using illicit substances and reported being sober for several years. She said she had put a plan in place for Damien to stay with MGA as mother was currently renovating her home. Mother acknowledged having a prior dependency case due to her drug abuse and child neglect, but she completed inpatient and outpatient treatment, a parenting course, and therapy. Mother was not working and was receiving benefits for Luna.
Mother acknowledged a history of domestic violence with Damien's father. She said she previously smoked marijuana and used methamphetamines but had been clean for years. Mother declined services and agreed to drug test.
In September 2022, mother and father both tested positive for methamphetamines. The social worker unsuccessfully attempted to contact them.
On September 20, 2022, the social worker received a call from PGM, who reported mother had still not made a financial plan to provide for Luna. Mother had been unresponsive and provided excuses for not financially providing for the child.
On September 23, 2022, the social worker visited MGA, who reported mother still had no contact with her or Damien, but had made several calls threatening to remove Damien. Mother refused to go through with court proceedings to enable MGA to obtain guardianship of Damien, for whom mother was not providing financial support.
Father acknowledged he had lied about his drug use and was regularly using methamphetamine. He expressed an interest in receiving substance abuse treatment and asked that Luna be placed with PGM.
On October 4, 2022, PGM reported Luna had been sick for a few days. PGM made several unsuccessful attempts to reach mother regarding Luna's medical insurance. PGM requested the social worker contact mother to obtain health insurance information. The social worker left a voice message for mother.
DCFS sought and obtained permission from the juvenile court to detain Damien and Luna from parental custody. The social worker left a voice message for mother. When the social worker sent mother a text message letting her know the children had been detained, mother replied, "Please do not contact me anymore. There's no need for it since I don't have my kids anymore. Blocking your number."
Mother later called the social worker and said she would be attending the upcoming hearing and was working on being admitted to a rehabilitation program. Mother provided no further information and abruptly ended the call.
Section 300 petition and detention
On October 14, 2022, DCFS filed a section 300 petition on behalf of Damien and Luna alleging the children were at risk of harm under subdivisions (b) (failure to protect) and (j) (abuse of sibling). Count b-1 alleged that mother had a history of substance abuse, including methamphetamine, rendering her incapable of caring for the children. Count b-2 alleged that father had a history of substance abuse and was a current abuser of methamphetamine and marijuana, rendering him incapable of caring for Luna. Count b-3 alleged that mother left Damien in the care of MGA without making a plan for the child's ongoing care and supervision. Count j-1 alleged that mother's history of substance abuse caused her children Aiden, Sebastian, Jose, and Serenity to be prior dependents of the court and receive permanent placement services. Count j-2 alleged that mother left Damien in the care of MGA without a plan of supervision for the child, placing Damien and Luna at risk of serious physical harm, damage and danger.
At the initial hearing on October 17, 2022, father was present and appointed counsel. Mother was not present. DCFS was ordered to present evidence of due diligence in attempting to locate mother. The juvenile court found DCFS had presented a prima facie case that the children were described under section 300, and reasonable efforts had been made to prevent removal. The children were detained from parental custody, and a jurisdictional hearing was scheduled.
Initial reports
A document entitled "Power of Attorney Delegating Parental Authority (With Consent for Medical Care)" was provided to DCFS. The notarized document, dated September 1, 2022, granted temporary custody of Luna to PGM.
The record also contains a document entitled "Temporary Guardian Acknowledgement," appointing "temporary guardianship to permanent guardianship" of Damien to MGA commencing on March 1, 2022. A separate acknowledgement dated May 9, 2022, showed mother had appeared before a notary on that date.
Damien and Luna remained placed with MGA and PGM, respectively. In an interview on November 8, 2022, mother said the children were not in her custody when she relapsed into using methamphetamine. She had been sober for three years prior to relapsing. Although mother previously completed an inpatient drug program, an outpatient program, and parenting instruction, she was unwilling to attend another treatment program. On December 2, 2022, mother tested negative for drugs.
PGM reported she had helped mother reunify with Damien in an earlier dependency case. However, once the case closed, mother went back to using drugs. PGM wanted permanency for Luna because mother acted one way during the case but then went back to using drugs.
MGA reported mother had a substance abuse problem since she was 14 years old, prompting MGA to adopt mother's older children. Although mother received mental health services and medication management, mother stopped taking the medication because she did not like how the medication made her feel. Damien primarily lived with MGA since the previous dependency case was closed. Damien would not eat or sleep when he was with mother. Mother was supposed to complete legal guardianship paperwork for MGA but failed to follow through. MGA opined mother did not want anything to do with the children.
DCFS requested the juvenile court bypass reunification services to mother under section 361.5, subdivision (b)(10) and (11).
Arraignment
On November 29, 2022, mother made her first appearance at the arraignment hearing. She was appointed counsel and entered a general denial.
Jurisdiction hearing
The juvenile court held the contested jurisdiction hearing on December 13, 2022. Mother and father were present and represented by counsel. The juvenile court admitted into evidence DCFS's reports, including the attachments showing mother gave notarized guardianship documents to the respective relatives to care for her children prior to the petition being filed.
Mother's attorney requested the petition be dismissed. Father requested DCFS exhaust all funding options to help father pay for his reunification programs. Minors' counsel joined in DCFS's position that the petition be sustained in its entirety, as DCFS had met its burden.
The juvenile court sustained the petition with the exception of a minor clarifying amendment. Disposition proceedings were continued.
Subsequent reports
On January 13, 2023, mother reported she had enrolled and was participating in substance abuse treatment and individual counseling. She was also participating in parenting instruction and weekly drug testing. Between December 7, 2022, and January 10, 2023, mother tested negative for substances on six occasions.
On January 17, 2023, father reported a recent hospitalization due to a lung collapse. Father had no problem completing court ordered programs, but thought it best if Luna remained in PGM's care. Father reported wanting to waive family reunification services so Luna could remain with PGM.
Disposition hearing
The disposition hearing was held on January 23, 2023. The court heard argument as to DCFS's recommendation to bypass reunification services for mother. Mother's counsel objected and requested the court grant mother family reunification services, noting mother's recent enrollment in treatment. Mother's counsel noted that mother "sought help from family members" prior to the initiation of the dependency proceeding. Counsel stated, "Most important, [mother] admits that when she relapsed, Damien was with [MGA] and Luna was with [PGM]."
Father's attorney noted father had recently been hospitalized for a collapsed lung. Given this change in circumstance, father's attorney requested the court to bypass reunification services for mother, and consider a section 360, subdivision (a) assessment for legal guardianship of Luna with PGM. However, father's attorney also asserted if the court granted mother family reunification services, it should do the same for father.
Section 360, subdivision (a)(1) provides that "if the court finds that the child is a person described by Section 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification services and has executed a written waiver of any of those services, the court may . . . order a legal guardianship, . . . provided the parent and the child agree to the guardianship, unless the child's age or physical, emotional, or mental condition prevents the child's meaningful response."
The children's attorney joined in DCFS's recommendations, noting there was "sufficient evidence that mother qualifies under the bypass provisions," and it was not in the best interests of Luna and Damien for mother to receive family reunification services.
DCFS asked the court to follow its recommendation not to provide family reunification services to mother. As to father's request that the court provide a section 360, subdivision (a) guardianship for Luna, DCFS argued "360a is an alternative disposition. So the court can't do a disposition and then depending on the outcome of the disposition, continue the disposition. So I would ask that the court not entertain that argument."
The juvenile court found the children to be dependents and removed them from parental custody, citing section 361, subdivision (c). The court bypassed mother for reunification services based on her prior failure to reunify with the children's half siblings and the prior termination of her parental rights. The court ordered family reunification services for father, as well as a treatment plan. The court ordered DCFS to use its best efforts to assist father with funding for his programs.
The court set a section 366.26 permanency planning hearing as to Damien and a section 366.21, subdivision (e) review hearing as to Luna.
Notice of appeal
Mother's notice of appeal, filed January 23, 2023, listed only Luna's case number and name.
On the second page of mother's notice of appeal, the caption included Luna's case number, and only Luna was named in the portion of the caption indicating the child's name. However, on the second page, mother indicated the notice of appeal pertained to Luna and Damien.
Mother purported to appeal from the declaration of dependency pursuant to section 360, the removal of the children from her custody, and other orders issued on January 23, 2023.
DISCUSSION
I. Scope of appeal
Mother acknowledges the docket for this appeal bears only Luna's trial case number and Luna's name listed as the child who is the subject of this appeal. Mother argues, however, that California Rules of Court, rule 8.821(a), states in relevant part, "(2) The notice of appeal must be liberally construed and is sufficient if it identifies the particular limited civil case judgment or order being appealed." Thus, mother requests this court liberally construe the notice of appeal to include both Damien and Luna, for whom orders were made at the hearing from which mother appealed.
Mother's notice of appeal as to Luna cannot be construed to include Damien. When the juvenile court set a section 366.26 hearing as to Damien, mother had no recourse but to challenge the order setting the section 366.26 hearing by way of petition for extraordinary writ review. (§ 366.26, subd. (l)(1).) Mother filed notice of her intent to file a petition for extraordinary writ in Damien's case. The matter was assigned case No. B326474. On March 8, 2023, mother was notified that the last day to file her petition was March 10, 2023. No petition was filed. The petition was dismissed as nonoperative on April 6, 2023.
Section 366.26, subdivision (l)(2) provides: "Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section."
Mother requests her opening brief in this matter be deemed a petition for extraordinary writ as to Damien and decided on the merits. Mother provides no authority for this court to do so, nor does mother address that time for mother to file her petition for extraordinary writ has expired. Under the circumstances, we decline to consider Damien in this appeal.
II. Section 300, subdivision (g)
Mother argues it was a mistake of law for the juvenile court to decline to consider subdivision (g) of section 300. Mother argues the juvenile court took jurisdiction of the children under inapplicable subdivisions, when the record showed mother made appropriate provisions of care for both of her children with notarized grants of legal guardianship to their respective caregivers.
Section 300, subdivision (g) permits the juvenile court to take jurisdiction over a child if "[t]he child has been left without any provision for support; physical custody of the child has been voluntarily surrendered . . . or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful."
Mother argues section 300, subdivision (g) applies when the adequacy of a parent's plan for a child's safety and well-being is in doubt. Here, in contrast, mother says, she made a plan of care for Luna by providing a power of attorney to PGM on September 1, 2022, for an indefinite period of time. Mother claims this plan was adequate and therefore jurisdiction was inappropriate under section 300, subdivision (g). Mother cites In re Anthony G. (2011) 194 Cal.App.4th 1060 for the proposition that section 300, subdivision (g) requires proof the parent left the child without provision for support.
Mother appears to take the position that the juvenile court may only proceed under one provision, and in this case it was required to proceed under section 300, subdivision (g). Mother cites no authority supporting this position. On the contrary, the juvenile court may take jurisdiction over a child under any relevant subdivision, and we may affirm the juvenile court's decision to take jurisdiction if substantial evidence supports jurisdiction under any relevant subdivision. "When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see In re Alysha S. (1996) 51 Cal.App.4th 393, 398 [stipulated dismissal of § 300, subd. (d) count did not preclude subd. (b) count based on sexual abuse].)
Thus, even if the juvenile court had proceeded under section 300, subdivision (g), and even if jurisdiction were not warranted under that subdivision, we could affirm the jurisdictional finding if substantial evidence supported jurisdiction under any other subdivision. As set forth below, substantial evidence supports jurisdiction under section 300, subdivisions (b) and (j).
In re Andrew S. (2016) 2 Cal.App.5th 536 is distinguishable. In Andrew S., the father was incarcerated, and the juvenile court sustained a single count as to the father under section 300, subdivision (b). (Andrew S., at p. 542.) The Court of Appeal held, "to the extent the first amended petition alleged [the father] had failed to provide for the children, either before or after they were detained, the evidence presented by the Department did not satisfy its burden of proof under section 300, subdivisions (b) or (g)." (Id. at pp. 543-544.) The matter before us is different, as substantial evidence supports the juvenile court's findings under both subdivision (b) and subdivision (j) of section 300.
Mother's argument regarding a purported lack of substantial evidence to support jurisdiction under section 300, subdivision (g) is irrelevant. DCFS did not ask the juvenile court to take jurisdiction under this subdivision, nor did the juvenile court sustain jurisdiction under this provision. Mother's failure to raise the issue at the juvenile court level forfeits the argument here. (In re N.M. (2011) 197 Cal.App.4th 159, 166 [parent "cannot challenge the sufficiency of the allegations in a dependency petition on appeal if he did not first raise the issue below"].)
III. Substantial evidence supported the jurisdictional findings
Mother argues she did not place Luna at risk of serious physical harm under section 300, subdivisions (b) or (j) because her relapse to substance use occurred while Luna was in the legal care and custody of a relative caretaker. Mother's argument is not well taken. Substantial evidence supports jurisdiction under section 300, subdivisions (b) and (j), based on mother's longstanding drug addiction and resulting inability to care for her children.
Five section 300 petitions have been sustained based on mother's unfitness to parent, four of which were based on her drug abuse. Luna's older half siblings were adopted after mother failed to reunify with them. There is ample evidence of mother's relapses. In September 2022, both mother and father tested positive for methamphetamines, and both subsequently admitted to using methamphetamines. At approximately 18 months old, Luna was a child of tender years and unable to protect herself. She was at risk of serious physical harm as a result of mother's substance abuse.
While mother argues she made a sufficient plan for Luna's care with PGM, the record reveals otherwise. When the investigation in this matter began, Luna had been in the home of PGM for over a month. Mother had talked about the possibility of providing PGM with guardianship of Luna but had not followed up. Although mother acknowledged receiving benefits for Luna, PGM reported mother failed to provide financially for Luna. Mother made excuses why she could not support the child. Further, mother was not providing for Luna's medical needs. PGM reported Luna had been sick, and PGM made several attempts to contact mother regarding the child's medical insurance. PGM had not heard back from mother. PGM requested the social worker try to obtain information regarding Luna's medical insurance from mother. The social worker was only able to leave a voice message for mother.
This evidence does not support mother's argument that Luna was not at risk of harm because mother had placed her with a relative. Mother did not provide PGM with the information and authority necessary to properly care for Luna. Mother dropped off Luna with PGM but continued to neglect Luna's financial and medical needs. Further, the evidence showed mother threatened to remove Damien from MGA's home. Nothing prevented mother from revoking the temporary guardianship agreement with PGM at any time or making similar threats as to Luna. These acts placed Luna at risk of harm.
The evidence supports the juvenile court's decision to take jurisdiction over Luna due to mother's drug abuse and neglect. Mother did not make an adequate plan for the child's care and failed to provide for her needs.
IV. The dispositional order was within the court's discretion
Mother next argues the dispositional order removing Luna from her care must be reversed because neither parent was Luna's custodial parent as of the filing of the petition or the disposition hearing, therefore section 361 did not apply. Mother argues the juvenile court should have terminated jurisdiction over Luna with legal guardianship granted to her approved relative caretakers pursuant to section 360, as requested by father at the disposition hearing. Mother contends this issue requires de novo review as it is an issue of law concerning the statutory interplay between section 360 and section 361 when neither parent is the custodial parent of the child and mother had provided notarized documents transferring custody to relative caretakers. Mother takes the position that issues of law such as this may be raised for the first time on appeal.
A. Applicable law
After the juvenile court assumes jurisdiction of a child, the court must hear evidence as to the proper disposition. At the disposition hearing, the court may remove physical custody from the parents and make a general placement order for the child. (In re Summer H. (2006) 139 Cal.App.4th 1315, 1324.)
One of the court's options is to proceed under section 360. Section 360 applies if the parent "has advised the court that the parent is not interested in family maintenance or family reunification services and has executed a written waiver of any of those services." (§ 360, subd. (a)(1).) Under those circumstances, the juvenile court may "order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent and the child agree to the guardianship, unless the child's age or physical, emotional, or mental condition prevents the child's meaningful response." (Ibid.) "[S]ubdivision (a) of section 360 was intended to create a new and alternative procedure for appointing a guardian when the parent acknowledges early in the dependency proceedings that he or she cannot, and will not be able to, even after family reunification services, provide adequate care for the child." (In re Summer H., supra, 139 Cal.App.4th at p. 1325.)
If the conditions do not exist for appointment of a guardian pursuant to section 360, subdivision (a), the court may proceed under section 361. Section 361, subdivision (c) allows the juvenile court to remove physical custody of the child from the parent "with whom the child resides at the time the petition was initiated" when it finds clear and convincing evidence that there is a substantial danger to the physical health, safety, protection, or emotional well-being of the child if the child were returned home, and there are no reasonable means to protect the child without removal from the parent's physical custody.
Section 361, subdivision (d) governs removal of a child from the physical custody of his or her parent with whom the child did not reside at the time the petition was initiated. Removal is warranted when the juvenile court finds clear and convincing evidence there would be a substantial danger to the physical health, safety, protection or physical or emotional well-being of a child for the parent to live with the child or otherwise exercise the parent's right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the parent's custody.
B. The circumstances did not warrant a section 360 guardianship
As set forth above, there are certain steps the parties must take for a section 360 guardianship to be appropriate. Those steps, which are prerequisites for a section 360 guardianship, were not taken in this case.
First, the parent must advise the court that the parent is not interested in family reunification services. Further, the parent must be willing to waive family reunification services and must execute a written waiver to that effect. Mother did not make that waiver. Instead, she objected to DCFS's recommendation that mother be bypassed for family reunification services and requested the court grant her services. At no time did mother or her attorney suggest mother would be interested in formally waiving such services and proceeding under a section 360 guardianship. While father's attorney suggested a section 360 guardianship might be appropriate, father also failed to execute a written waiver of his right to family reunification services. When father was granted reunification services, he did not object to such services or suggest his preference was to waive them. Instead, he sought financial assistance in carrying out his reunification plan.
Given that neither parent informed the juvenile court that either of them wanted to waive reunification, and neither parent executed a written waiver, section 360 was inapplicable.
C. The juvenile court properly removed the child from the custody of her parents pursuant to section 361, subdivision (c)
Mother argues the provision under which the juvenile court removed jurisdiction from the parents, section 361, subdivision (c), was an improper basis for removal given that neither mother nor father were Luna's custodial parents at the time of removal. Because mother transferred custody of Luna with a power of attorney to PGM, and father agreed to this arrangement, mother argues that section 361 did not apply to either parent.
Mother fails to point to a citation to the record where she objected to the juvenile court's basis for removal. "[T]he failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal ...." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) Because mother failed to raise this issue before the juvenile court, thus allowing the juvenile court to correct the error, she has forfeited it here.
Further, the record shows that section 361, subdivision (c) applied in this matter. The informal documents mother provided to PGM were not issued by a court and did not transfer legal custody of the children from mother. Mother could have rescinded the power of attorney at any time. There was no formal documentation showing father had agreed to the arrangement or formally transferred his custodial rights. Thus, the juvenile court did not err in treating mother and father as custodial parents and removing jurisdiction pursuant to section 361, subdivision (c).
Finally, even if the juvenile court erred in applying section 361, subdivision (c), mother has failed to show prejudice. (See In re D'Anthony D. (2014) 230 Cal.App.4th 292, 303-304 [concluding juvenile court's application of incorrect statute in dispositional order removing child from parent's custody was harmless error].) We may not reverse any error unless it is reasonably probable that the result would have been more favorable to the appealing party absent the error. (Cal. Const., art. VI, § 13; see In re Celine R. (2003) 31 Cal.4th 45, 59-60.) Section 361, subdivision (c), which governs removal from a parent with physical custody, and section 361, subdivision (d), which governs removal from a parent with whom the child did not reside, are substantially similar with respect to the conditions under which removal is appropriate. Mother has failed to show any harm from the juvenile court referencing one provision over the other. Thus, any error of the juvenile court in proceeding under the wrong subdivision of section 361 would be harmless under the circumstances of this case.
DISPOSITION
The orders are affirmed.
We concur: LUI, P. J., HOFFSTADT, J.