In re A.N.















Filed 8/13/12 In re A.N. CA4/3

















>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

In re A.N., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.N. et al., Defendants and Appellants.	G046172 (Super. Ct. No. DP-021426) O P I N I O N

Appeals from a judgment
of the Superior Court
of Orange
County, Cheryl L. Leininger, Judge. Affirmed.

Mitchell Keiter, under
appointment by the Court of Appeal, for Defendant and Appellant T.N.

Jesse McGowan, under
appointment by the Court of Appeal, for Defendant and Appellant P.N.

Nicholas S. Chrisos,
County Counsel, Karen L. Christensen
and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.



*
* *



After a combined
jurisdictional and dispositional hearing, the juvenile court found
half-siblings A.N. and L.N. dependents under Welfare and Institutions Code
section 300, subdivisions (b) (failure to protect child from substantial
risk of harm), (g) (child left without provision for support), and (j) (sibling
abuse). (All further statutory
references are to this code.) By clear and convincing evidence the court
also found that to vest custody of either child with P.N., their mother, and to
vest custody of A.N. with T.N., her father, would be detrimental and placed
both children in the custody of the Orange County Social Services Agency (SSA).

Applying section 361.5,
subdivision (b)(10) and (11), the court ruled mother need not be provided with reunification services to either child
and set a permanency planning hearing for L.N.
(§ 366.26.) Mother
challenged this ruling by a writ petition that was denied in a prior
opinion. (P.N. v. Superior Court (Feb.
22, 2012, G046184) [nonpub. opn.].)
Father was granted reunification services as to A.N.

Both parents appeal the
judgment concerning A.N. Father contends
the evidence fails to support the juvenile court’s jurisdictional and
dispositional rulings. He also claims
the court erred in failing to find him to be L.N.’s presumed father. Mother asserts the juvenile court erred in
not placing A.N. in father’s custody.
Finding no error, we affirm.



FACTS AND
PROCEDURAL BACKGROUND



Mother
has an extensive criminal record and an unresolved history of substance
abuse. L.N. and A.N. are her ninth and
tenth children. Five of mother’s
children tested positive for cocaine at birth, were declared dependents of the
juvenile court, and ultimately adopted.
She placed a sixth child for adoption through a private agency. The remaining two siblings were placed with
paternal relatives. Although mother
claimed to have completed a substance abuse class, she never presented any
supporting documentation to SSA.

L.N. was born in
November 2009, shortly after mother’s release from prison for a drug
conviction. During this pregnancy,
mother and father began living together.
According to the social worker assigned to this case, the couple had
mutual friends and knew each other before their cohabitation began.

Father also has a
lengthy criminal record. It includes
arrests and convictions for driving while under the influence, burglary,
receiving stolen property, assault, and possession of a controlled substance,
the last of which occurred in 2007. He
also had not completed a substance abuse program.

In January 2011, while
pregnant with A.N., mother was arrested for selling cocaine. After her arrest, mother told the police she
had made 20-to-30 drug sales in the past week and kept her drug inventory at
home behind the ventilation screen at the base of the refrigerator. Mother also admitted meeting with her supplier
daily at the family home and receiving from him a cell phone buyers used to
contact her to arrange drug purchases.
The police searched the home, finding additional cocaine and a scale
under the refrigerator.

Father was home when the
search occurred. He told a social worker
that he did not know about mother’s drug sales because he worked in
construction every day. But when
cross-examined at the jurisdictional/dispositional hearing, father admitted
being home three-to-four days a week. He
denied knowing mother was meeting with her drug supplier every day at the
family home, but acknowledged “[meeting] him out in the street” and “drink[ing]
coffee” with the supplier.

After her arrest, mother
arranged for a friend to care for L.N.
In June 2011, while in prison, she gave birth to A.N. At the time, father and L.N. were living in
the home of mother’s friend, Lien T.
Mother arranged for Lien T. to assume custody of A.N.

Initially, SSA filed a
non-custody petition based on mother’s incarceration and her prior history with
the juvenile dependency system. The
petition alleged father’s whereabouts were unknown.

In early July, SSA
removed both children from the home after conducting a more extensive
assessment of the home’s living conditions and learning Lien T. and several
other adults living there had criminal records.
According to a social service report, the room in which the children
were staying was in disarray with cockroaches crawling on the floor and
wall.

When SSA questioned him,
father acknowledged Lien T.’s home “was ‘a mess’” and “that he had concerns”
about the residence. But he accepted
Lien T.’s assurances she could properly care for the children.

Father made his first
appearance in the case on August 9.
Based on

the
parties’ stipulation, the juvenile court found him to be A.N.’s presumed father


and
appointed counsel to represent him. At
that time, SSA filed the operative second amended petition. Under the failure to protect count, it
alleged father “has a criminal history” and “a history of substance abuse” that
“is an unresolved problem,” and he “reasonably should have known
. . . mother . . . was engaged in the sale of
illegal

drugs
. . . .”

The court authorized
father to have visitation with both children.
In September, he was arrested and spent six days in jail on a parole
violation for one of his prior convictions.
Father’s visitation with the children was inconsistent.

He
missed or cancelled at the last minute several visitation appointments and
ended some visits early. At the December
jurisdictional and dispositional hearing, the assigned social worker testified
“[p]arents are given three no-shows or cancellations and then the social worker
has to reinstate [visitation,]” and noted that with father she “had to
[reinstate his visitation] four times . . . .”

The social service
reports indicated that during visits “father responds appropriately some of the
time,” but he “appears to have difficulty dividing his attention between the
two children and reportedly is attentive and focused on [A.N.] with [L.N.]
playing independently and having little interaction.” He ended one visit an hour early because of
A.N.’s “consistent and inconsolable crying.”


The court also
authorized funding to have father participate in random drug testing. He never tested positive for any
substance. But father missed several
tests and one result was described as diluted.
Under SSA’s rules, the missed and diluted tests were deemed to be
positive results.

SSA provided father with
a referral to a counseling and parenting program, but he was terminated due to
his lack of response.

At the December combined
jurisdictional and dispositional hearing on the amended petition, the juvenile
court admitted several social service reports and heard testimony from both the
assigned social worker and father.
Father testified he still worked in construction and for the past
several months had been renting a room in a home owned by what he described “an
adopted brother[,] like a cousin, an acquaintance.” Father could not remember the name of the
street where he lived, but said he “[wrote] it down on [a] piece of paper” that
he gave to his attorney.

With a few
modifications, the court found the second amended petition’s allegations were
true. It concluded mother had been
involved in drug sales, keeping “her supply of drugs . . . in
the trailer where they lived” under “the bottom of the refrigerator,” which,
“being [at] ground level with a removable vent cover and mother retrieving
drugs from that location numerous times would have been accessible to the
child.” The judge also noted the
“inherent dangers associated with drug transactions . . . and a
drug lifestyle” and concluded this “created a dangerous, unsafe, detrimental
environment for [L.N.] and, potentially, for [mother’s] unborn child
[A.N.] Had mother not been arrested, the
court believes she would still be continuing her drug activities.”

Additionally, the judge
stated she “did not find father’s testimony to

be
credible . . . .” Based
on that determination, plus his “missed . . . and diluted

test[s,]
. . . prior history of drugs and knowingly living in a drug
environment,” the court held “father’s substance abuse is unresolved
. . . .” It further found
“father knew of mother’s drug involvement and activities,” or “[a]t a minimum,
he certainly should have known. The
signs were obvious.” Thus, “[w]hile
there is no evidence that father was personally involved in the transactions,
based on the obvious activities, . . . father knew of the drug
activities and, at a minimum, acquiesced to the activities
. . . in spite of the potential danger to the children.”



DISCUSSION



>1.
Sufficiency of the Evidence to Support the Jurisdictional Order

Because of the nature of
father’s arguments, discussed in greater detail below, it is necessary for us
to initially review the general rules of appellate review applicable to this
case.

“In a challenge to the sufficiency of the
evidence to support a

jurisdictional
finding, the issue is whether there is evidence, contradicted or
uncontradicted, to support the finding.
In making that determination, the reviewing court reviews the record in
the light most favorable to the challenged order, resolving
conflicts in the evidence in favor of that order, and giving the evidence
reasonable inferences. Weighing
evidence, assessing credibility, and resolving conflicts in evidence and in the
inferences to be drawn from evidence are the domain of the trial court, not the
reviewing court . . . . [Citations.]” (In re
Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)

However, father’s
opening brief relies heavily on his and mother’s credibility and interprets the
facts in the light most favorable to him.
This distorted review of the appellate record is inappropriate. We begin our analysis with the presumption
the trial court’s judgment is correct. (>Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) “‘All intendments
and presumptions are indulged to support it on matters as to which the record
is silent, and error must be affirmatively shown.’” (Ibid.) Thus, “‘[i]t is well established that a
reviewing court starts with the presumption that the record contains evidence
to sustain every finding of fact.’
[Citations.]” (>Foreman & Clark v. Fallon (1971) 3
Cal.3d 875, 881.) These principles
apply to appeals in juvenile dependency proceedings. (In re
S.C. (2006) 138 Cal.App.4th 396, 414-415.)

“A recitation of only
[the appellant’s] evidence is not the ‘demonstration’ contemplated under the
above rule. [Citation.] Accordingly, if, as [is] here contend[ed],
‘some particular issue of fact is not sustained, [the appellant is] required to
set forth in [his] brief all the material evidence on the point and not
merely [his] own evidence. Unless
this is done the error assigned is deemed to be waived.’ (Italics added.) [Citations.]”
(Foreman & Clark v. Fallon,
supra, 3 Cal.3d at p. 881; In re
S.C., supra, 138 Cal.App.4th at pp. 414-415.) That is the case here.

But even on the merits,
father’s claims fail. “Before courts and
agencies can exert jurisdiction under section 300, subdivision (b), there must
be evidence indicating that the child is exposed to a substantial risk
of serious physical harm or illness.”
(In re Rocco M. (1991) 1
Cal.App.4th 814, 823.) “Cases
finding a substantial physical danger tend to fall into two factual
patterns. One group involves an identified,
specific hazard in the child’s
environment . . . . [Citations.] The second group involves children of such
tender years that the absence of adequate supervision and care poses an
inherent risk to their physical health and safety. [Citations.]”
(Id. at p. 824.)

Here, both scenarios
exist. The juvenile court cited mother’s
extensive history of drug abuse and criminal activity, particularly her most
recent illegal drug sales wherein she used the space underneath the
refrigerator to store her drug inventory.
L.N. was a toddler at the time and the juvenile court found, absent
mother’s arrest, she likely would have continued selling drugs even after
A.N.’s birth.

In Rocco M., the appellate court held “the trial court could find a
substantial risk of serious physical harm in the fact that
. . . mother created the danger [her 11-year-old child] would
ingest hazardous drugs” (In re Rocco M.,
supra, 1 Cal.App.4th at p. 825) “by placing or leaving drugs in a
location . . . where they were available to [the child,]
. . . by frequent and prolonged absences which created the
opportunity for [the child] to ingest the drugs[,] . . . and
. . . by exposing [the child] to her own drug use, thus
impliedly approving such conduct and even encouraging him to believe that it is
an appropriate or necessary means of coping with life’s difficulties” (>ibid.).
The facts of the present case present a more compelling basis for
jurisdiction. Mother not only had a
substance abuse problem and left drugs in a place readily available to small
children, but with father’s apparent knowledge and acquiescence, was engaged in
the frequently dangerous activity of selling illegal drugs.

Father’s focus on
himself misses the point. “Contrary to
father’s position, a jurisdictional finding good against one parent is good
against both. More accurately, the minor
is a dependent if the actions of either parent bring her within one of the
statutory definitions of a dependent.
[Citations.] This accords with
the purpose of a dependency proceeding, which is to protect the child, rather
than prosecute the parent.
[Citation.]” (>In re Alysha S. (1996) 51
Cal.App.4th 393, 397.)

Even so, the court’s
findings as to father also supported jurisdiction. Contrary to his argument, the juvenile court
did not base its jurisdictional finding on his purported residential
instability. Nor did the court merely
rely on his past criminal record and drug use.
Rather, the court concluded his cohabitation with mother while aware of
her drug activities, indicated he acquiesced in this conduct, thereby failing
to take steps to protect L.N. from mother’s behavior. And absent mother’s arrest, father likely
would have also failed to protect A.N. once she was born.

Father argues mother’s
arrest eliminated the potential of any current danger to A.N. The foregoing facts combined with the
evidence of father’s own unresolved substance abuse, his knowingly leaving the
children in Lien T.’s care, plus his poor performance in complying with the
services SSA offered to him, support a conclusion a substantial risk of harm to
A.N. continues to exist.

Finally, father contends
that, even if the record supports the juvenile court’s exercise of jurisdiction
under section 300, subdivision (b), we must discuss the validity of the
remaining grounds contained in the amended petition. The general rule is that “[w]hen 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,” and “[i]n 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.
[Citations.]” (>In re Alexis E., supra, 171
Cal.App.4th at p. 451; see also D.M.
v. Superior Court (2009) 173 Cal.App.4th 1117, 1127 [“the juvenile
court’s jurisdiction may rest on a single ground”].) But even if the rule were otherwise, it would
not assist father. The amended petition
alleged three grounds for jurisdiction; section 300, subdivisions (b), (g), and
(j). Father is not mentioned in the
allegations relating to subdivision (j).
The only reference to him in the subdivision (g) count was that his
“whereabouts . . . [were] unknown.” At the combined jurisdictional and
dispositional hearing, the juvenile court struck this allegation. Consequently, only the allegations of
subdivision (b), relating to father’s failure to protect the children from a
substantial risk of harm, are relevant here.




2. Sufficiency of the Evidence to Support the
Dispositional Order

Section 361, subdivision
(c)(1) declares “[a] dependent child may not

be
taken from the physical custody of his or her parents . . ., unless
the juvenile court finds clear and
convincing evidence” that “[t]here is or would be a substantial danger to
the physical health, safety, protection, or physical or emotional well-being of
the minor

if
the minor were returned home, and there are no reasonable means by which the

minor’s
physical health can be protected without removing the minor from the minor’s
parent’s . . . physical custody.” The juvenile court found, “by clear and
convincing evidence that to vest custody . . . with father at this
time would create a substantial risk of detriment and danger to the
children.” (§ 361, subd.
(c)(1).) Both father and mother contend
the evidence fails to support this finding.
We disagree.

As with jurisdiction, we
review the juvenile court’s factual findings on this issue under the substantial evidence standard. (In re
Javier G. (2006) 137 Cal.App.4th 453, 462-463.) In addition, “[t]he juvenile court has broad
discretion to determine what would best serve and protect the child’s interest
and to fashion a dispositional order.
[Citation.]” (>Id. at p. 462.) “‘A removal order is proper if it is based on
proof of parental inability to provide proper care for the minor and proof of a
potential detriment to the minor if he or she remains with the parent. [Citation.]
The parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate.
The focus of the statute is on averting harm to the child. [Citations.]’
[Citations.]” (>In re Miguel C. (2011) 198
Cal.App.4th 965, 969.)

In explaining its
dispositional ruling, the juvenile court stated: “[A]t the time of [A.N.’s] birth, according
to mother, father’s whereabouts were unknown; although, presumably, she knew that
[L.N.] had initially been left with the father[.] [F]ather has not lived with [A.N.] Father . . . placed [L.N.] –
and potentially the unborn child – in danger by his poor
. . . and inappropriate judgment by allowing the children to be
exposed to [the] drug activities discussed above. [¶] Father[] also[] stated that he was caring
for [L.N.] and admitted to going out of the county to work leaving [L.N.] in
the care of someone he had concerns about.
This, again, place[d L.N.] in an unsafe environment and showed poor
judgment. . . . [¶] Also, mother obviously had
concerns about father caring for either child[] because when she attempted to
make arrangements with the caretaker for the children, she did not want either
of the children cared for by the father . . . . [¶]
Since the children have been detained, father has been inconsistent with his
visits. Further, another person has been
supplying the caretaker with some of the supplies for [A.N.], such as formula
and diapers. . . .”

These findings, which
were based on the evidence, plus the findings supporting the juvenile court’s
jurisdictional ruling justify its decision to vest custody of A.N. with
SSA. Father knew or should have known
about mother’s participation in illegal drug sales and did nothing to protect
L.N. from the potential harm. The court
explicitly found his testimony to the contrary lacked credibility. Further, the evidence supports the juvenile
court’s finding that father has an unresolved substance abuse problem and
displayed poor judgment in caring for the children after mother’s arrest and
incarceration. His inconsistent visits
with the children and failure to follow through in attending parenting and
counseling classes reflect he still lacks the ability to protect A.N. from the
risk of harm.

This case is unlike >In re Basilio T. (1992) 4
Cal.App.4th 155, the case

cited
by father in support of his argument.
There we cited “the skimpy nature of the information in the social study
report,” the fact that “a live witness, whom the trial

court
explicitly found credible” “contradicted” “the reports by the complaining
neighbors,” plus the fact that the “incidents of domestic violence” involved
only “the adults . . . fighting with each other” to hold the
evidence failed to support the children’s removal under the clear and
convincing evidence standard. (>Id. at p. 171.) In this case there was overwhelming evidence
mother’s behavior created a substantial risk of harm to the children and father
either knew about it and acquiesced in the activity or ignored the unmistakably
dangerous nature of the activity. Even
after mother’s arrest and the commencement of this dependency proceeding,
father failed to take adequate steps to protect the children from the risk of
harm. The evidence supports the juvenile
court’s conclusion father could not adequately protect A.N. if she were placed
with him.

Mother argues the
juvenile court’s dispositional ruling affects her as

well
“because it brings the case one step closer toward the possible termination of

[her]
parental rights,” and “if the order denying [A.N.]’s placement with father is
reversed, the no reunification services order issued against mother would also
need to be reversed . . . .”
Since the juvenile court ordered reunification services to father the
first ground is purely speculative. As
for the second ground, our prior decision in P.N. v. Superior Court, supra, G046184 bars such a result. “Since there is a previous final decision of
. . . this court involving the identical facts in the same case
between the same parties . . ., such rule is now the law of the case
and is binding . . . .” (>Guardianship of Walters (1947) 81
Cal.App.2d 684, 685; see also People
v. Stanley (1995) 10 Cal.4th 764, 786.)

Therefore, we conclude
the juvenile court did not err in vesting custody of A.N. with SSA rather than
father.



>3.
The Presumed Father Claim

At father’s initial
appearance in this case, when the juvenile court authorized father to have
visitation with A.N., his attorney successfully requested visitation with L.N.,
noting father “has basically a paternal relationship with [L.N.],” “has lived
with [L.N. for his] entire life[,] and . . . [L.N.] probably
considers [father] to be his father.”
During closing argument, in urging A.N. should be returned to father’s
care, counsel also asserted “father’s position is [that] he treats [L.N.] as
his own[,] . . . has raised [L.N.] since [L.N.] was very
young[,] . . . obviously wants the siblings to remain together
and he’s . . . willing to keep the siblings together.” However, at no point in the lower court’s
proceedings did father request the juvenile court declare him to be L.N.’s
presumed father.

Nonetheless, on appeal
father contends the juvenile court erred in “prevent[ing him] from establishing
presumed fatherhood” as to L.N. We
disagree.

As SSA contends father
forfeited this claim by not asserting it in the juvenile court. “[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.
[Citation.] The purpose of this
rule is to encourage parties to bring errors to the attention of the trial
court, so that they may be corrected.
[Citation.] [¶] Dependency matters are not exempt from this
rule. [Citations.]” (In re
S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) While In
re S.B. also acknowledged “application of the forfeiture rule is not
automatic” (ibid.), the Supreme Court
recognized an “appellate court’s
discretion to excuse forfeiture should be exercised rarely and only in cases
presenting an important legal issue [citations]” (ibid.). In “dependency cases
. . . the discretion must be exercised with special care”
because “these proceedings involve the well-being of children, [and]
considerations such as permanency and stability are of paramount
importance. [Citation.]” (Ibid.)

Father presents no
cogent reason for creating an exception to the forfeiture rule under the facts
of this case. Clearly, an opportunity to
be declared L.N.’s presumed father existed, but he never requested it. As noted, the juvenile court denied mother
reunification services as to both children and scheduled a permanency planning
hearing as to L.N. Where “the
dispositional order also denie[s] reunification services and set[s] a section
366.26 hearing . . . ‘“the traditional rule favoring the
appealability of dispositional orders yields to the statutory mandate for
expedited review.”’ [Citation.] Consequently, the dispositional order
. . . [is] not appealable and ‘[can] be reviewed, if at all,
only by way of a writ petition.’
[Citation.] And ‘failure to take
a writ from a nonappealable dispositional order waives any challenge to it.’ [Citations.]”
(In re T.W. (2011) 197
Cal.App.4th 723, 729.) In father’s
presence, the juvenile court advised mother of her right to challenge the
juvenile court’s dispositional order as to L.N. and she timely petitioned for
relief. But father failed to challenge
the dispositional order as to L.N. by a timely writ petition.

Furthermore, father’s
notice of appeal in this case mentions only the rulings concerning A.N. Given that juvenile dependency proceedings
“involve the well-being of children, [and] considerations such as permanency
and stability are of paramount importance” (In
re S.B., supra, 32 Cal.4th at p.1293), we conclude father has
forfeited his right to assert a claim to be declared L.N.’s presumed
father.



DISPOSITION



The judgment is
affirmed.









RYLAARSDAM,
J.



WE CONCUR:







O’LEARY, P. J.







BEDSWORTH, J.