Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06JU053B
HULL, Acting P. J.At the outset, we note that, on our own motion, we have augmented the record with several pages missing from reports and orders in this matter.
R.V., father of the minor, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the court failed to exercise its discretion to place the minor with him as a noncustodial parent. Appellant also contends the juvenile court lacked jurisdiction to terminate parental rights because it never determined placement with him would be detrimental to the minor. Appellant further argues the court failed to consider the evidence, including his presumed father status, when denying his petition for modification. Appellant asserts several other errors and claims that in combination, they required reversal. We disagree and affirm the orders.
Facts and Proceedings
The seven-year-old minor, A.V., and her older half sibling, were removed from the mother’s custody in October 2006 and detained by the court due to the mother’s substance abuse and her boyfriend’s physical abuse of the minors. Appellant was identified as the biological father of the minor in the petition and, at the first opportunity, he requested placement of the minor and a home study. Over the mother’s objection that appellant had not seen the minor in four years, the court ordered visitation for appellant at the discretion of the Department of Health and Human Services (the Department). At the jurisdiction hearing, the court sustained the petition and ordered visitation for appellant and the minor at the discretion of the Department.
At the originally scheduled disposition hearing, appellant again asserted his right to placement under section 361.2 as a noncustodial parent and again requested visitation. During argument, appellant’s serious felony conviction was mentioned and appellant argued it was no bar to placement or visitation. The court expressed concern about appellant’s lack of contact with the minor for four years and the minor’s need to be with her half sibling. The court found it was in the minor’s best interest to keep the minors together and granted an extended stay for both minors in Colorado with relatives of the half sibling.
The disposition report stated appellant had a history of criminal offenses related to drugs and violence. Appellant said he had participated in services in custody but had no substantiating proof or confirmation from his parole officer. Appellant insisted the mother had prevented him from contacting the minor although she denied this. The Department assessed whether to place the minor with appellant and concluded it would be detrimental due to appellant’s criminal conviction record, which included an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), hereafter “assault”) and related prison terms. The Department also recommended denial of services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(12) due to appellant’s assault conviction stating that it qualified as a violent felony.
As noted, the parties had referred to the conviction as a “serious” felony conviction. The record supports this characterization. The arrest and conviction report sheet shows a conviction for Penal Code section 245, subdivision (a)(1) without a weapon and there is no indication an enhancement for infliction of great bodily injury was pleaded or proved as required by Penal Code section 667.5, subdivision (c)(8). However, appellant admitted he injured the victim. Thus, the felony could only be a “serious” felony within the meaning of Penal Code section 1192.7, which does not require the enhancement be proved, only that great bodily injury was personally inflicted.
The Department investigated appellant’s claim that he had no contact with the minor because he did not know where the minor was and had tried to find her through Family Law. Child Support Services had no record of contact from appellant until January 2006 when there was an inquiry regarding recalculation of child support and another in November 2006 requesting a letter of support for appellant’s attempt to gain custody of the minor. The Department concluded that placement with appellant was not in the minor’s best interest but that she would benefit from contact by letter and telephone with him. The minor had one supervised visit with appellant that was somewhat awkward but appeared to go reasonably well. The report recommended placement in Colorado with the half sibling’s relatives.
An addendum reiterated the recommendation and provided additional information on the Colorado family. It also had the results of a home study for appellant. The home study noted appellant last saw the minor in 2002 prior to his arrest for the assault. Appellant admitted injuring the victim and serving two years in state prison after his conviction. During that time, appellant lost contact with the minor and did not visit again until December 2006. Appellant wanted custody of the minor, had appropriate housing and was able to care for his new family. However, there were concerns about the years without contact and appellant’s lack of relationship with the minor as well as appellant’s history of violence and substance abuse. The study recommended that appellant and the minor have time to develop a relationship and that appellant successfully complete services to address the various concerns. Appellant was informed of relevant services in his area.
At the disposition hearing in March 2007, the court denied services to appellant pursuant to section 361.5, subdivision (b)(12) based on the assault conviction, ordered the Department to develop a visitation schedule for him and continued the minor in foster care pending completion of the placement study for Colorado. There is no reporter’s transcript for this hearing because the reporter is deceased and no notes are available.
The September 2007 status review report stated appellant had not contacted the social worker since the disposition hearing to ask for telephone visitation with the minor who was now in Colorado. The court continued the minor’s placement and ordered further services for the mother.
Appellant did not appear at the review hearing in October 2007, but his counsel informed the court appellant had resumed contact with the Department to initiate visits by letter and telephone with the minor. The hearing was continued for several months. The review report filed in February 2008 stated the minor remained in Colorado, the half sibling’s relatives were willing to either be guardians for, or adopt, the minor, and recommended terminating the mother’s services and setting a section 366.26 hearing. The report stated that appellant had not contacted the social worker since the disposition hearing.
At the review hearing, the parties submitted the matter with a stipulation that parental rights not be terminated and the minor’s permanent plan would be guardianship with the Colorado family. Neither appellant nor his attorney was present. The court accepted the stipulation with the condition that appellant could present any objections within 10 days thereof and set a section 366.26 hearing. No objections were made.
At the section 366.26 hearing in June 2008, the minors having been returned to California from Colorado, the court vacated the current section 366.26 hearing, and set a hearing on a petition for modification. Appellant again asked for placement of the minor. At the next hearing, the court granted the petition for modification and vacated the prior orders accepting the stipulation for guardianship. The court ordered visits by telephone at appellant’s request and set a section 366.26 hearing.
The January 2009 assessment for the section 366.26 hearing stated there had been no contact from appellant, he had not requested telephone contact with the minor and had not visited her since 2006. Apparently unaware the court had vacated the stipulation for guardianship, the social worker recommended a permanent plan of guardianship although the state Department of Social Services had assessed the minor to be adoptable. The court adopted the social worker’s recommendation and maintained the prior visitation orders.
A status review report in July 2009 stated appellant had sent the minor several letters although the last of these was over two months earlier. The report recommended changing the minor’s permanent plan to adoption. At the contested review hearing, counsel for appellant argued appellant chose not to fight for custody in exchange for a stipulation not to terminate his parental rights and that the court was limited to selection of guardianship as a permanent plan. Appellant argued that if the court intended to select another plan he was entitled to custody of the minor. The court concluded that refusal to set a section 366.26 hearing when the minor was adoptable was against public policy particularly in light of the changed circumstances and set a section 366.26 hearing.
Appellant filed a petition for extraordinary writ challenging only the court’s failure to comply with the stipulation for guardianship as a permanent plan and failure to hold six-month review hearings. The petition was summarily denied pursuant to Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501.
A supplemental report in January 2010 supplied the results of the bonding study. The study stated appellant had not contacted the minor since the spring of 2009 and the minor said she did not even know him. The minor wanted to be adopted and adoption was in her best interests.
Appellant filed a petition for modification seeking placement or increased contact with the minor which would lead to placement. In support of the petition, appellant alleged he incorrectly told counsel the assault was a violent, rather than a serious, felony conviction, and thus he should not have been denied services or placement at the outset of the case more than three years ago. Petitioner further alleged he had maintained employment and had a new home.
The report for the section 366.26 hearing stated appellant had not had contact with the minor for nearly a year and the state Department of Social Services recommended adoption as a permanent plan. The report acknowledged the Department’s error in characterizing the assault conviction as a violent felony.
At the combined hearing on the petition for modification and selection of a permanent plan, appellant submitted the petition without production of further evidence except an offer of proof on his status as a presumed father. The court noted appellant’s lack of involvement in the proceedings and insignificant contact with the minor. The court denied the petition, finding neither new evidence nor a change in circumstances. The court terminated parental rights, relying on prior orders denying or terminating reunification services, and ordered that visitation between appellant and the minor be limited to written contact initiated by the minor.
Discussion
I
Section 361.2 Placement
Appellant argues he was denied due process because the juvenile court failed to exercise its discretion under section 361.2 to place the minor with him without making a finding that the placement would be detrimental to the minor.
Section 361.2, subdivision (a), provides that: “When a court orders removal of a child pursuant to section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” The finding of detriment may be in writing or on the record. (§ 361.2, subd. (c).)
The order pursuant to section 361 removing the minor from the mother was made at the disposition hearing. While the minutes of the hearing do not include any findings that placement of the minor with appellant would be detrimental, there is no reporter’s transcript and no settled statement of the proceedings. We may not presume error in the absence of an adequate record. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846; Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678.) Indeed, since judgment of disposition without a reporter’s transcript must be viewed as a judgment roll appeal, the presumption is in favor of the finding having been made. (Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454.)
In any case, even if error existed, either in failing to make the finding or in making a finding not supported by substantial evidence, appellant apparently did not bring the matter to the attention of the trial court at disposition and did not appeal the judgment of disposition. Accordingly, any error is forfeited. (John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405; In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) Moreover, any error in failing to make the finding of detriment was harmless in light of evidence in the record supporting such a finding. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218-1219.) The homestudy expressed concerns about placement with appellant due to his criminal and substance abuse history and his lack of contact with the minor. The homestudy suggested remedial services. Appellant never availed himself of the suggested services and maintained only intermittent contact with the minor, making a minimal effort to build a relationship with her. The initial detriment to the minor in placing her with appellant was never alleviated.
To the extent appellant’s claim relates to the selection and implementation hearing, not only is that hearing limited to selecting a permanent plan for the minor (§ 366.26), the juvenile court was not required to make such a finding, having previously made the finding of detriment in placing the minor with appellant at disposition.
II
Jurisdiction to Terminate Parental Rights
Appellant contends the juvenile court lacked jurisdiction to terminate his parental rights because the court had to find either that services had been denied pursuant to section 361.5, subdivision (b) or that he met one of the other conditions set forth in section 366.26, subdivision (c)(1), which established parental unfitness before terminating parental rights. He argues that since his felony conviction was serious, not violent, and did not support the denial of services under section 361.5, subdivision (b)(12), and no other conditions of unfitness were shown, termination was not authorized by statute.
Section 366.26, subdivision (c)(1) provides, in part: “A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months, or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent... and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights.”
Here, the juvenile court relied on the disposition order denying appellant services under section 361.5, subdivision (b)(12). Appellant now challenges the factual basis for that order. However, as we have explained, challenges to the accuracy and validity of the orders comprising the judgment of disposition had to have been raised either in the juvenile court at the time of the hearing or on appeal from the judgment of disposition. Appellant’s counsel was aware of the distinction between a serious and a violent felony and argued vigorously prior to disposition that appellant’s serious felony did not bar either services or placement. After the unfavorable disposition ruling, appellant did not appeal and has forfeited the issue. (John F. v. Superior Court, supra, 43 Cal.App.4th at pp. 404-405; In re Christopher B., supra, 43 Cal.App.4th at p. 558; In re Dakota S., supra, 85 Cal.App.4th at pp. 501-502.) Thus, at the termination hearing, the juvenile court could proceed based upon the valid judgment of disposition.
Appellant relies on the decision in In re G.S.R. (2008)159 Cal.App.4th 1202 to support the argument that a finding of detriment to place is inadequate to show unfitness and may not be relied upon when terminating parental rights. G.S.R. is not controlling as it is factually distinguishable from this case. The father in G.S.R. was provided services and there were no facts in the record to support unfitness since he was denied placement only because of lack of housing due to his poverty. (Id. at pp. 1207, 1213.) Here, appellant was denied services and thus was presumptively unfit to parent pursuant to section 366.26, subdivision (c)(1). The court in this case did not have to rely on findings of detriment to the minor in placing her with appellant to support a finding of unfitness and did not do so.
III
The Court’s Exercise of Discretion
Appellant argues the court failed to exercise its discretion to provide services in light of the admitted error in characterizing the assault conviction as violent rather than serious, his actual status as a presumed father and his current positive family circumstances.
We assume appellant is relying on his petition for modification as the framework within which the court had discretion to order services.
Section 388 provides, in part: “Any parent... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court.... [¶]... If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, termination of jurisdiction, or clear and convincing evidence supports revocation or termination of court-ordered reunification services, the court shall order that hearing be held....”
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. “Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld.” (In re S.R. (2009) 173 Cal.App.4th 864, 870; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
We note that appellant’s petition for modification heard prior to the selection of a permanent plan sought only return of the minor or, in the alternative, visitation to facilitate return. He did not seek reunification services. Because that issue was not before the court, it did not fail to exercise discretion on that point.
As to the issues properly before the court, the court correctly concluded there was no new evidence or change of circumstances within the meaning of section 388 since information about the status of the assault conviction was available at the time of the disposition hearing. At that time, the parties, with the exception of the social worker, referred to the felony conviction as “serious” not “violent” and there was no attempt to correct the report or litigate the status of the felony. Similarly, the parties evidently assumed appellant was a presumed father and the issue was not litigated. The parties were focused on placing the minor in Colorado and appellant did not pursue rulings on the various findings which are normally made at disposition, thereby forfeiting any error in the rulings. (John F. v. Superior Court, supra, 43 Cal.App.4th at pp. 404-405; In re Christopher B., supra, 43 Cal.App.4th at p. 558; In re Dakota S., supra, 85 Cal.App.4th at pp. 501-502.) The court considered the evidence, including appellant’s minimal contact with the minor in the year preceding the hearing, and the minor’s interest in stability, concluded circumstances were unchanged and did not abuse its discretion in denying the petition for modification. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Appellant claims the error in considering appellant’s prior felony conviction to be a violent, rather than a serious, felony infected the entire proceeding. Without doubt, the error did have an effect on the case. However, far more important and determinative to the outcome was appellant’s persistent refusal to meaningfully engage in efforts to build a relationship with the minor and to address concerns about his past substance abuse and violence. It was this, more than any uncorrected error early in the case, which led to denial of his petition for modification and ultimate termination of his parental rights.
IV
Other Errors
In addition to the above claims, appellant cites various additional factual inaccuracies, erroneous rulings and procedural improprieties occurring over the course of the dependency and claims that the totality of the conduct of the case was prejudicial to him, justifying reversal. We have examined every claim and have concluded that appellant either has forfeited the issues or fails to show prejudice from the asserted errors. Separately or in combination, appellant’s claims do not justify reversal.
Disposition
The orders terminating parental rights are affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.