Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ07006974
Lambden, J.
Jennifer A. (mother) seeks review (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26, subd. (l)(1)) of a jurisdictional and dispositional order of July 2, 2007, that also denied her reunification services, and set a plan selection hearing for her infant child, Vanessa A. (In re Athena P. (2002) 103 Cal.App.4th 617, 624-625 [proper challenge is by writ, not appeal].) She challenges the jurisdictional findings and a placement decision. We deny her petition on the merits.
All unspecified section references are to the Welfare and Institutions Code, and all unstated dates are in the current year, 2007.
Background
Vanessa was born in May 2007, while mother and a man later identified as an alleged father, each with long criminal records and histories with child protective services (CPS), were serving prison time. Mother was in Santa Rita Jail, had nearly a year left on a term she was serving at Chowchilla State Prison, and had previously lost six children to adoption or guardianship owing to drug abuse, instability, incarcerations, and failures to reunify.
Vanessa was taken into protective custody from the hospital, and the Alameda County Social Services Agency (agency) filed a dependency petition on May 18. The petition alleged failure to support (§ 300, subd. (g)), specifically that (g-1) the father’s identity, whereabouts and circumstances were unknown and (g-2) mother was jailed and unable to care for the child. The petition also alleged mother’s failure to protect (§ 300, subd. (b)) in that she (b-1) gave birth while jailed for a term ending April 2008, and had no family member or relative willing to care for Vanessa, and (b-2) had a serious drug problem that impaired her ability to care and provide. Sub-allegations under b-2 were that: (a) she was serving a three-year term for drug charges; (b) she had failed to reunify with any of her children and had three of them (Jasmine, Angel and Raymond) adopted through CPS after failing to reunify, complete case plan requirements or treat the problems leading to their removal; (c) the grandparents had become legal guardians, through probate court, for two others (Corrina and Jose) due to mother’s problems and incarcerations; and (d) mother had been given extensive services to reunite with her other children but failed to complete drug treatment, or case plan requirements, and would not be receiving services for Vanessa.
On May 21, counsel Tamiza Hockenhull was appointed for the mother and Vanessa was detained in foster care, with the matter set for a further hearing of June 4. Mother’s counsel was also her attorney in ongoing proceedings involving other of her children.
A jurisdiction/disposition report filed on May 25 identified the alleged father and recommended no services for either party. It noted that the agency has no such obligation toward an alleged father unless he establishes a legal basis for them, and detailed mother’s extensive history of drug abuse, instability, criminality, child welfare interventions, and the loss of other children.
On June 4, the court set a contested hearing for July 2, to coincide with a hearing “in the sibling cases.” Neither mother nor the alleged father was present, but Judith Walton was, and identified herself as a “[f]amily friend.” Counsel for the alleged father referred to her as “a potential placement for the child” and expressed a preference for her “so that the other siblings have access to [Vanessa].” The child had been placed instead with the adoptive parents of another of mother’s children, four-year-old daughter Angel.
At the July 2 contest, the report and an addendum were moved into evidence without objection. The alleged father remained in custody and appeared only through counsel. Mother, still being held at Santa Rita Jail, appeared personally, testified and presented witnesses. She disputed none of the reported history but sought to establish that she had adequately provided for this baby, despite incarceration, by arranging with Judith Walton to take care of the child and adopt if needed.
Julie Harmeyer, a prison health services advocate, testified that she spoke with mother at Santa Rita Jail in October 2006 and again in April or May about the baby and helped her explore her options. Mother’s first choice was to remain with the baby. When it appeared that this was impossible and services would not be offered, mother sought someone to take care of the baby. She had wanted the baby placed with a family that would allow contact by siblings and family, including herself. She named a “long-time family friend” as willing to adopt, but Harmeyer could not act on the information because social services generally did not get involved before birth unless a mother had no prior “contact” and the agency would be pre-approving a caregiver within the county who was a relative. This woman was not a relative. Pregnant inmates, Harmeyer confirmed, are allowed to make collect calls from their housing units, use pen and paper, and have counsel.
Bonnie Sorlie, case worker for the agency, had been unable to speak directly to mother about her arrangement, but Harmeyer relayed the information to Sorlie. Walton herself contacted Sorlie after the birth, but Sorlie did not check out her home. There was a hold on the baby by then, and Walton was not a relative. The agency’s first priority, she explained, is to find a relative placement. There was also no legal documentation. The agency in this case found a nonrelative who had adopted a sibling.
Mother, age 33 when testifying, said she was incarcerated and pregnant with Vanessa from September 2006 on. She realized that her mother, who “had the other kids,” could not take Vanessa. She therefore contacted Walton, “somebody who I was close with, through a friend.” She explained the relationship only by saying she had known Walton a “[c]ouple of years, about six, seven years,” adding, “I grew up with her son, and I’ve just known his mom.” Mother had never been to Walton’s home but said, “I have friends who have kids that [are] her grandchildren, and I know she’s very good with kids.” Mother did not contact her directly, but “through a friend” (not named). She had tried to phone Walton in December, but Walton’s number “had a block on it.” She then wrote Walton “a couple of letters” but got no response. (One letter, asking if Walton would adopt and mentioning sibling contact, was placed in evidence.) The friend at some point asked Walton, on mother’s behalf, if she would take care of the baby and adopt “if she had to.” Walton agreed. Mother explained: “I didn’t get a response in writing. She had told her niece, or her son’s girlfriend at the time.” In April, the month before Vanessa’s birth, mother was able to speak with Walton using a number Walton had left at the jail in Santa Rita. Mother conceded that she never signed any papers giving Walton custody or authorizing medical or educational decisions for the child. “I didn’t know I had to,” she said as to custody. Walton did tell her, however, that she “was willing to go get fingerprinted and have the background checks, have the home checked, whatever she had to do.”
After the birth, at Valley Care Medical Center in Pleasanton, mother spoke to a social worker (evidently Harmeyer) who asked if she had a placement for the baby. “I tried to give her a name of somebody that—who I had arranged something with,” but she “wasn’t willing to take my information.” Mother never spoke to Sorlie.
Mother explained, in testimony admitted only to explain her state of mind in opposing Vanessa’s current placement: “They have my four-year-old daughter. They have adopted her. They were . . . my mom’s friends. They were really close friends. They used to go camping, barbeques, and they promised my family that—well, she’s four years old. How my daughter Angel would be able to be in contact with her other brothers and sisters.” There was sibling contact for the first Christmas, but thereafter, she heard from the siblings and her own mother, none.
Maternal grandmother Nancy C., who had been guardian of two of Vanessa’s siblings since 1994 and now had a third, nearly age three, testified about the current placement, with Tom and Donna B. She said there had been no physical contact between Angel and the siblings in her care. She said she invited Angel to her house on two occasions, but they had been out of town. Then, in “kind of a heated discussion” with the B.’s (before the youngest of mother’s children had come to live with her), the B.’s said that if the siblings wanted to see Angel, they should “call and invite ourselves to their house.” The grandmother did not “feel comfortable with that.” The B.’s had “a very formal house,” and given a 10-year age difference between Angel and the children in her care, and with her two unable to “sit still,” the B.’s would not have “toys and things to play with,” as they would at her home. She never made contact to arrange for sibling visits. Indeed, while she had been to a house the B.’s occupied before any children were placed with them, the grandmother had never been to the home where they resided with Angel.
Finally, Judith Walton testified, confirming that she stood ready to take Vanessa, to adopt her “if that would be something that would be necessary,” and to “still include her other siblings in open adoption.” She had discussions with the grandmother before the birth, and their “plan” was for Walton to take care of the baby while mother was in prison, get temporary guardianship and then, if the court allowed, give the child back to mother when she was released. They had expected the baby to be born “in a different county,” and for Walton to pick up the child from the hospital. Walton also received a couple of letters from mother, in January and February, asking her to take care of the baby until she was “released and in a program,” or to adopt if needed. Walton had a home large enough that the baby could have its own room, and she had gotten a crib. Walton never got any papers authorizing medical care, education, travel or guardianship. She also never contacted the agency but understood from her daughter Stephanie, who did contact the agency, that the baby had been placed in a foster adoptive home with others. Walton wrote mother a letter of encouragement at the court hearing on June 4, and mother mailed her photographs of the siblings to assemble a photo album for Vanessa should she adopt.
The “different county” is unexplained and odd in that, we notice (Evid. Code, § 452, subd. (f)), Santa Rita Jail, near Dublin, the birthplace hospital in Pleasanton, and the Hayward home of Walton were all in Alameda County. We can only speculate that she expected the birth to be near the prison in Chowchilla where mother was serving time when not held in local custody.
Walton said she had known mother about “four to five years” and had children of her own, now ages 25 to 30. Walton lived with a boyfriend plus the daughter, Stephanie. The boyfriend had a married son who lived in Newark, and to Walton’s knowledge, no CPS history. Walton herself had had two children in dependency in Alameda County, for possibly two years. This was in 1985, and she had reunified.
Mother’s counsel opposed jurisdiction, relying on the arrangements mother had made with Walton, and urged placement with Walton instead of the B.’s. The alleged father never appeared personally or established biological or presumptive paternity, but he joined mother’s opposition to jurisdiction and preference for placement with Walton.
The court noted mother’s failure to give consents, or take other “very important” steps within her power to transfer care taking responsibilities, but the court found that she had taken “the most important and fundamental step in arranging for alternative care, and that is identifying the person who is willing and able to assume care.” The court deemed this a “pretty effective challenge to jurisdiction” had it rested only on subdivision (g) of section 300. “However, this is not a 300 (g) only case. We have the [subdivision] (b) allegations, which indicate inability of mother to provide care, or rather a parent because of . . . substance abuse. And it is just that; she has a documented problem with substance abuse, but in addition, has [a] history of failure to reunify with the children that were removed because of the same problem. So I do think that the agency has [established an] independent ground under 300 (b) for the court to take jurisdiction, and so the court will be doing so, although I will be making a finding that the [g-2] allegation [mother being in jail and unable to care] has not been met.” The court struck the g-2 allegation, found the petition true as so amended, and declared dependency.
For disposition, the court followed the recommendation for no reunification services. It rejected placement with Walton over the sibling’s adoptive parent, which the report showed was “a fost adopt placement” and the addendum noted was working very well for Vanessa, her four-year-old sibling “thrilled to have her sister at home.”
The court ordered paternity testing for petitioner and set a plan selection hearing for October 25. Mother and the alleged father have each sought writ review in this court. The alleged father’s petition was separately docketed as Frank G. v. Superior Court (A118582).
Discussion
Jurisdiction
Mother makes sweeping yet sketchy challenges to the assumption of jurisdiction. First, she seems to assign as prejudicial error an assumption of jurisdiction under section 300, subdivision (g), when the court had dismissed the g-2 allegation, but this argument is confounding. The court never purported to rely on subdivision (g) as to her. Rather, it expressly dismissed the g-2 allegation and relied instead on subdivision (b) allegations. (All further references to subdivisions (b) and (g) are to section 300.) The court was persuaded that mother’s arrangements with Walton, however incomplete, were enough to defeat jurisdiction under the g-2 allegation.
The g-1 allegation was sustained, but it only provided that the father’s identity, whereabouts and circumstances regarding ability to care for the child were unknown. This finding established nothing as to mother.
Moreover, subdivisions (g) and (b) provide alternate bases for jurisdiction, either one being enough to sustain the order (In re Athena P., supra, 103 Cal.App.4th at p. 630), so that mother’s reliance on subdivision (g) cases does not suffice, especially since the court below found that her arrangements with Walton were deficient in “very important” respects. Precedent holding that an incarcerated parent’s arrangements for care need not necessarily be suitable long term rests on language unique to subdivision (g), that an incarcerated parent need only possess an ability to arrange for care during the period of his or her incarceration (In re S. D. (2002) 99 Cal.App.4th 1068, 1077-1079; In re Monica C. (1995) 31 Cal.App.4th 296, 305) and, because the language tests present ability, may in a proper case have this as late as the jurisdictional hearing (In re Aaron S. (1991) 228 Cal.App.3d 202, 207-210). Subdivision (b), by contrast, is not drafted to assess risk based on incarceration but speaks, more broadly for the key language invoked in this case, of risk from the parent’s inability to provide regular care due to substance abuse. Clearly, an ability to provide suitable care, whether during or between times in custody, was relevant and a major component of this case involving a parent who, the reports showed without dispute, had lost custody and care of six children due to failures to reunify or rehabilitate, and many years of drug abuse and attendant instability, crime and incarcerations.
Mother’s attack on support for subdivision (b) jurisdiction is meager, and as follows: “The mother questions, [(1)] the sufficiency of the petition, [(2)] whether there was substantial evidence to support the allegations in the petition and[,] even if the court finds the allegations to be [supported], . . . [(3)] whether the allegations were appropriately plead [sic] under [subdivision (b)].” (Numbers added.) We agree with the agency that, to the extent that (1) and (2) are assaults on the sufficiency of the pleading, those issues are waived by mother’s failure to raise them below by a motion akin to a demurrer. One aberrant older decision holds that such an issue is not waived (In re Alysha S. (1996) 51 Cal.App.4th 393, 396-400), but every published decision since then has rejected the reasoning of that precedent and found waiver (see, e.g., In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329; In re Athena P., supra, 103 Cal.App.4th at pp. 626-828; In re S. O. (2002) 103 Cal.App.4th 453, 459-460; In re James C. (2002) 104 Cal.App.4th 470, 480-481). Mother’s failure even to brief this issue leaves us no reason to differ with the weight of authority.
Turning then to the question of substantial evidence, our review is deferential. We cannot substitute our own assessments, including credibility and weight of the evidence, for those of the trial court and must draw all inferences in favor of that court’s findings. (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) Mother, as the challenger, has the burden of showing that a finding or order is not supported by substantial evidence. (Id. at p. 251.) Mother’s entire pertinent argument is this: “The [agency] submitted the social worker’s reports which are full of unsupported evidence, hearsay, speculation, and conjecture. Most of the allegations pled under 300 (b) relate to [her] other children. However, as of July 2, 2007, those cases had not been resolved (meaning jurisdiction and disposition had not been established in those cases) and the truth of the allegations asserted by the [agency] had not been established.”
To the extent that mother’s allusions to hearsay and the like are evidentiary, she waived these below by failing to raise any objections when the reports were admitted in evidence (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Joy M. (2002) 99 Cal.App.4th 11, 17; Evid. Code, § 353, subd. (a)) and waives them again here by failing to brief any specific evidentiary matters with authority and citations to the record (In re Ross (1995) 10 Cal.4th 184, 203; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 578-579).
Mother’s vague claim of nonfinality of jurisdictional or dispositional matters does not suffice, and in fact illustrates the problem. She does not specify which allegations, or to which of her six other children she alludes, or how, if there were unresolved issues, any of them would have made a difference in the outcome or overall picture before the court. The record does show that some proceedings were ongoing, but none of this was raised below so as to clarify what was still at issue in those proceedings and how this might have altered the overall assessment. We acknowledge the agency’s thorough assistance in trying to brief what mother might mean, and how the evidence does support each of the subdivision (b) allegations. Mother’s paltry briefing, however, makes it enough for us to say that she simply fails in her burden to demonstrate lack of substantial evidence. (In re Ross, supra, 10 Cal.4th at p. 203; Glen C. v. Superior Court, supra, 78 Cal.App.4th at pp. 578-579.) Even her inadequate allusion to unresolved child dependency matters fails to mention anything about her long-term drug abuse, criminality, instability, failure to treat her problems (despite services), and failures to reunify with children not involved in any ongoing proceedings. She notes a lack of evidence that this child was born with drugs in her system. It is the overwhelming poor past performance here, however, which bodes ill for the child, and past performance is always relevant to such an issue (cf. Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 70-71; In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221).
Mother has not shown error or abuse of discretion in the jurisdictional findings under subdivision (b).
Placement
Mother attacks the placement decision, again in pertinent briefing terse enough to quote in full: “[Mother] hand-picked someone she believes will love and care for her child and allow her baby to have a relationship with her other siblings. Given the court’s finding that [mother] made arrangements for the care of her baby, the court abused its discretion when it maintained the [agency’s] placement of the baby with another family.”
Error is not shown. Mother provides no legal analysis whatsoever, and this alone warrants rejection of her claim. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120; Glen. C. v. Superior Court, supra, 78 Cal.App.4th at p. 583.) The agency provides us with legal and factual analysis, out of caution, including argument that mother, having opted not to challenge the bypass of services to her, lacks further standing to challenge the placement decision, which appears to rest on a hope that Walton might provide her greater contact. We find no need to rely on that briefing. Mother’s failure to articulate any legal argument forfeits whatever claim she has.
Disposition
The petition is denied on the merits. (Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888 [barring subsequent challenges by appeal]; Welf. & Inst. Code, § 366.26, subd. (l)(1).) Given the imminency of the hearing set for October 25, 2007, our decision is final as to this court immediately (Cal. Rules of Court, rule 8.260(b)(3)).
We concur: Kline, P.J., Richman, J.