In re J.B.







Filed 9/19/11 In re J.B. CA4/2







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re J.B., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.B., Defendant and Appellant.	E052092 (Super.Ct.No. J235349) OPINION

APPEAL from the Superior Court of San Bernardino County following transfer from the Superior Court of Riverside County. Matthew C. Perantoni (Riverside) and Stephanie Thornton-Harris (San Bernardino), Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.) Reversed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Danielle E. Wuchenich, County Counsel, and Jean-Rene Basle, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant, M.B., is the presumed father of J.B. who is the subject of a Welfare and Institutions Code section 300^[1] petition that Riverside County Department of Public Social Services-Child Protective Services (CPS) filed shortly after J.B.’s birth. According to the social worker, J.B.’s mother K.F. (hereafter mother) while hospitalized after giving birth to J.B. reputedly asked for help to separate from M.B. (hereafter father) because he is violent. The dependency petition alleges jurisdiction under section 300, subdivision (b) based on acts of domestic violence father and mother committed in the presence of mother’s five-year-old son, B.F.^[2] With respect to father, the petition also alleges he abuses controlled substances, he has an extensive criminal history for possession of controlled substances, and he previously failed to reunify with his three other children after allegations of neglect and substance abuse resulting from his arrest on drug manufacturing charges were substantiated. Based on the noted allegations, the trial court detained J.B. and placed him in the custody of mother.
Father did not appear at the combined jurisdiction and disposition hearing, although his attorney was present and informed the trial court that father had been advised of the hearing date. After the trial court denied the attorney’s request for a continuance, the parties submitted on the social worker’s reports. The trial court found all the allegations of the section 300 petition to be true, removed J.B. from father’s custody, and denied reunification services to father.
Father raises various claims of error in this appeal from the disposition order. We recount the details of those claims, below, in our discussion. For reasons we will explain, we agree with father’s claim that the disposition order denying him reunification services under section 361.5, subdivision (b)(10) is not supported by substantial evidence. Therefore, we will reverse that order.
FACTUAL AND PROCEDURAL BACKGROUND
While in the hospital following J.B.’s birth in July 2010, mother purportedly asked a medical social worker for help in ending her relationship with father because of domestic violence.^[3] When interviewed in the hospital mother told the San Bernardino County social worker she and father had been together for about a year.^[4] In November 2009, while she was pregnant with J.B., father hit mother in the head, causing a wound that required four staples to close. Mother later explained to a Riverside County social worker that father hit her because he saw her with another man. When she got in the car with father, and he started hitting her, mother covered herself with her arms and her watch cut her head open. In January, father tried to take mother’s cell phone away and in the process ripped her dress; her “5-year old child intervened by spraying something on father.” Mother reported that father changed her cell phone number and moved her to Riverside so she would not have contact with anyone. While visiting her in the hospital after J.B.’s birth, father took mother’s cell phone away so she could not talk to her friend, Sherri. Mother also reported that once while she and her five-year-old son were riding in the car with father, he threatened to throw the child’s jacket out of the car.
Father denied that he ever hit mother or that he took away her cell phone. He claimed mother had been “hospitalized a couple of times for urine infections.” Father reported that he overheard mother asking a friend to bring her an alcohol drink in the hospital. When he asked mother not to drink alcohol because she was breast feeding, mother got upset, so father left her hospital room. When the social worker asked about mother’s claim that father had a restraining order against him for hitting his supervisor when he was employed as a firefighter, father responded that it happened a long time ago and he declined to elaborate. Father also reported that he completed a 52-week domestic violence class after he got into an altercation with his previous girlfriend. The charge was reduced to vandalism.
The CPS social worker reported that in 1996 father and his then wife were arrested for manufacturing methamphetamine. Their three children were taken into protective custody. That dependency terminated when the children were placed in legal guardianship with their maternal grandparents. Father and his wife were arrested again in 2000 for manufacturing methamphetamine. The children were not present at the time of this second arrest, although they apparently regularly visited at the home of father and their mother.
CPS filed a petition in which it alleged J.B. came within the provisions of section 300, subdivision (b), because father and mother engage in ongoing acts of domestic violence in the presence of mother’s older child, B.F., and that mother minimizes the domestic violence even though she was injured during an altercation in November 2009; that father abuses controlled substances including marijuana and methamphetamine; that father has a history with Riverside County CPS due to substantiated allegations of neglect and substance abuse regarding his three children with whom he failed to reunify after CPS provided reunification services; and father has an extensive criminal history, including numerous arrests for possession of controlled substances, vehicle theft, and vandalism.
At the detention hearing, father denied the allegations of the petition. The trial court found J.B. came within the provisions of section 300, subdivision (b) and “detained [J.B.] as to [f]ather.” The trial court made the necessary findings, removed J.B. from father’s custody, and placed the child with mother, after which it set the jurisdiction and disposition hearing.
The social worker arranged to interview father for the jurisdiction and disposition report. The day the interview was scheduled to take place, the social worker received a phone message from Richard Isles, an attorney retained by father. The message stated that father wanted his attorney present at the interview and that the appointment set for that day was cancelled. The social worker contacted father’s attorney, “and attempted to discuss [her] confusion that [father] was appointed an attorney from the JDP [Juvenile Defense Panel] at the last Court Hearing. Moreover, [the social worker] had spoken to [father] the day before and . . . had an appointment made. [Father] failed to mention that he obtained a private attorney. [The social worker] attempted to inform Mr. Isles that [she] had limited time to do the interview as the Court report [was] due the following Monday and [her] office is closed every Friday. He indicated his client had the right to have his attorney present. Somehow, the conversation became hostile and [the social worker] terminated the phone call. [The social worker] attempted to contact [father] to no avail. . . . [Father] called back later and left a message to contact his attorney. At the time [the jurisdiction and disposition] report [was] written, [the social worker] was unable to interview [father].”
Because she did not interview him, the social worker did not include any updated information about father in her report for the jurisdiction and disposition hearing. Instead, she recommended the trial court sustain the petition on all factual allegations under section 300, subdivision (b), four of which pertain to father. The social worker also recommended that the trial court deny reunification services to father under section 361.5, subdivision (b)(10).
As previously noted, father did not attend the jurisdiction and disposition hearing, and the trial court denied his attorney’s request to continue that proceeding. The parties submitted on the social worker’s reports.^[5] The trial court, among other things, found each of the allegations in the petition true and denied reunification services to father.
Father appeals from the disposition order.
DISCUSSION
1.
CONTINUANCE REQUEST
Father first contends the trial court abused its discretion in denying his request to continue the jurisdiction and disposition hearing.^[6] Father asserts that he based his request for a continuance on the fact that CPS did not provide him with a copy of the addendum report until the morning of the jurisdiction and disposition hearing and as a result father did not have time to review the report. The record does not support father’s claim regarding the basis for the requested continuance.
At the jurisdiction and disposition hearing on September 16, 2010, father’s attorney, Mr. Isles, initially claimed that he had not been served with the addendum report, but then realized he was mistaken; CPS had given him the addendum report that morning in court. Father’s attorney then told the trial court that father “is not here. I know he contacted my office yesterday. He was aware of today’s court hearing. I tried contacting him this morning. I have had no luck. And so therefore, I would request for [sic] a continuance.” The trial court denied that request. Later in the hearing, father’s attorney repeated his request for a continuance due to father’s absence. The trial court did not expressly rule on that request. Although father’s attorney did mention he had only just received the addendum report, it is apparent from the record that he did not seek a continuance on that basis, father’s contrary claim notwithstanding. Because he did not raise the issue in the trial court, father cannot raise it on appeal. Issues not raised in the trial court are forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
But even if we were to conclude the issue is reviewable, we nevertheless would conclude the trial court’s denial of father’s request for a continuance was not an abuse of discretion. The addendum report only included additional information about D.C. and R.E., respectively the presumed and biological fathers of B.F. The report did not contain any new information about father. Therefore, father did not need more than a few minutes to review the addendum report.^[7] In short, a continuance was not necessary.
2.
SUFFICIENCY OF THE EVIDENCE
Father challenges the sufficiency of the evidence, first to support the jurisdiction findings, next to support the trial court’s order removing J.B. from father’s physical custody, and finally to support the order denying him reunification services.
A. Jurisdiction Findings
Father contends the trial court’s jurisdiction findings are not supported by substantial evidence. As previously noted, CPS alleged jurisdiction under section 300, subdivision (b), which authorizes a court to assume dependency jurisdiction when, among other things, there is a substantial risk the child will suffer serious physical harm or illness as a result of the parent’s failure or inability to supervise or protect the child adequately, or the inability of the parent to provide regular care for the child due the parent’s substance abuse. (See § 300, subd. (b).) The specific facts CPS alleged with respect to father are that he and mother engage in ongoing acts of domestic violence in the presence of mother’s older child, B.F., and that mother minimizes the domestic violence even though she was injured during an altercation in November 2009; that father abuses controlled substances including marijuana and methamphetamine; that father has a history with Riverside County CPS due to substantiated allegations of neglect and substance abuse regarding his three children with whom he failed to reunify after CPS provided reunification services; and father has an extensive criminal history, including numerous arrests for possession of controlled substances, vehicle theft, and vandalism.
The trial court sustained all the allegations based on evidence set out in the social worker’s various reports. According to those reports, in November 2009 father hit mother and split “mother’s head open . . . causing her to receive staples from the hospital.” Also during her pregnancy, father ripped mother’s dress while trying to take her cell phone; five year old B.F. intervened “by spraying something on [] father.” While visiting mother in the hospital after she gave birth to J.B., father took mother’s cell phone away because mother was talking to her friend. Mother also reported that father yells and screams in front of five-year-old B.F., and once while she and B.F. were riding in the car with father he threatened to throw the child’s jacket out of the car. B.F. also reported “seeing and hearing his mother fighting with [father]. He stated, ‘I spray [father] when he is mean.’”^[8] When interviewed for the jurisdiction and disposition report, B.F. told the social worker that father “is not mean to his mommy anymore after they got married.” The social worker “asked follow-up questions and [B.F.] reported, ‘They are punching and slapping. When [father] was slapping, I sprayed him [sic] the evil spray. There was a red mark on mommy’s face (where) [father] slapped her.’” B.F. held up three fingers in response to the social worker asking him how many times he saw father punch or slap mother.
Father contends this evidence is insufficient to support jurisdiction on the section 300 allegation because it does not show father currently commits acts of domestic violence that place J.B. at substantial risk for physical harm or illness within the meaning of section 300, subdivision (b). We disagree.
(1.) Standard of Review
We review father’s challenges to the sufficiency of the evidence under the substantial evidence test. (In re Basilio T. (1992) 4 Cal.App.4th 155, 168, superseded on another ground as stated in In re Lucero L. (2000) 22 Cal.4th 1227, 1239-1240.) Under that test, we determine whether there is reasonable, credible evidence of solid value, such that a reasonable trier of fact could make the challenged findings. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) We do not reweigh the evidence or determine the credibility of witnesses, but review the entire record in the light most favorable to the juvenile court’s judgment, accepting favorable evidence as true and rejecting unfavorable evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Furthermore, if the court’s findings are supported by substantial evidence, we will uphold them, even if the stated reasons for the decision are erroneous or incomplete. (In re Lucero L., supra, 22 Cal.4th at pp. 1249-1250.)
(2.) Analysis
Section 300, subdivision (b) authorizes the juvenile court to exercise dependency jurisdiction if the child “has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness” as a result of the failure or inability of the parent or guardian to adequately protect or care for the child. (§ 300, subd. (b).) Subdivision (b) “means what it says. 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, italics omitted.) Therefore, the social services agency has the burden of proving an identified, specific hazard in the child’s environment which has resulted in concrete serious physical harm to the child, or which poses a substantial risk of such harm. (Id. at p. 824.) Because subdivision (b) also provides, “The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness,” (§ 300, subd. (b)) there must be evidence that circumstances existing at the time of the hearing make it likely that the child will suffer some type of serious physical harm or illness in the future (In re Rocco M., supra, 1 Cal.App.4th at p. 824; see also In re Janet T. (2001) 93 Cal.App.4th 377, 388).
There is no allegation and no evidence in this case that J.B. or his older half sibling B.F. had suffered any physical injury or illness as a result of father’s substance abuse, his criminal activities or his acts of domestic violence. The issue, then, is whether the evidence supports the inference that as of the date of the hearing, J.B. was at substantial risk of serious physical harm or illness. (In re Rocco M., supra, 1 Cal.App.4th at pp. 823-824; In re Janet T., supra, 93 Cal.App.4th at p. 388.)
Father concedes that domestic violence in the same household where children are living is neglect; it results in failure to protect the child from the substantial risk of encountering the violence and suffering serious physical harm or illness, including secondary abuse. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-195.) However, father contends evidence that he physically abused mother in November 2009 does not show the domestic violence was ongoing at the time of the hearing or likely to continue in the future. We do not share father’s view of the evidence.
As previously set out, the evidence shows that father not only committed an act of domestic violence against mother in November 2009, when he hit her, but that he also tore her dress while trying to take away her cell phone in January 2010. In addition, although B.F. initially reported only that he heard mother and father fight, he later told the social worker that he had seen mother and father punching and slapping each other, and once mother’s face was red where father slapped her. From the fact that B.F. did not recount these events in his initial statement, the trial court could reasonably infer that the slapping and punching incidents occurred after B.F. gave that statement and thus happened after J.B.’s birth. This inference is further supported by the fact that during this second interview B.F. told the social worker that he lived with mother on Garfield. The apartment father rented for mother after J.B.’s birth and in which father lived is on Garfield. In short, from this evidence the trial court could reasonably infer that B.F. saw father and mother hit each other after J.B. was born and that evidence supports the trial court’s finding that father engages in acts of domestic violence that place J.B. at risk of harm.
Although we agree with father’s claim that the evidence does not show he currently abuses controlled substances,^[9] we will not address that issue. We conclude the evidence is sufficient to support a jurisdiction finding under section 300, subdivision (b) based on the domestic violence allegation. Therefore, we need not determine whether the finding is also supported by the other factual allegations. (See In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“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.”].) For this reason we will not address father’s other challenges to the sufficiency of the evidence to support the jurisdiction findings.
B. Removal Order
Father contends the evidence does not support the trial court’s disposition order removing J.B. from father’s physical custody. Again, we disagree.
Section 361, subdivision (c)(1) precludes a dependency court from removing a child from the physical custody of a parent with whom the child resides at the time the petition was initiated unless, among other things, the court finds by 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.” Subdivision (d) of section 361 requires the trial court to make a determination of whether reasonable efforts were made to prevent or eliminate the need for removal of the child and to state the facts on which the decision to remove the child were made. (§ 361, subd. (d).)
The trial court in this case found that reasonable efforts were made to prevent the need for removal, but did not state facts upon which it based the decision to remove J.B. from father’s physical custody. Father presumes, as do we, that the trial court based its decision on the incidents of domestic violence between father and mother. Father contends the trial court failed to consider an “obvious solution to the problem”—family maintenance services—which father contends were appropriate because mother and J.B. “had moved anyway and were living in a secure environment.”
The record on appeal contains evidence that suggests mother had not severed her relationship with father, and in fact might have been living with him in his apartment on Garfield in Riverside. That evidence is the previously noted statement by B.F. set out in the jurisdiction and disposition report in which he said he lived on Garfield with mother and father. The social worker’s jurisdiction and disposition report also recounts a discussion between mother and the social worker regarding the fact that mother had moved into father’s residence. From these facts the trial court could reasonably infer that removing J.B. from father’s custody was necessary to protect the infant.
C. Denial of Reunification Services
Father contends the trial court’s disposition order denying him reunification services is not supported by substantial evidence. We agree with this claim.
The trial court denied reunification services to father under section 361.5, subdivision (b)(10), which gives the court discretion to deny reunification services to a parent “when the court finds by clear and convincing evidence . . . : [¶] . . . [¶] [t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent . . . .”
“To apply section 361.5, subdivision (b)(10), therefore, the juvenile court must find both that (1) the parent previously failed to reunify with a sibling and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling. [Citations.] ‘The inclusion of the “no-reasonable effort” clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.’ [Citations.]” (In re Albert T. (2006) 144 Cal.App.4th 207, 217, fn. omitted.)
The evidence in this case shows that father has three other children who were removed from his custody in 1996 when he and his then wife were arrested for manufacturing methamphetamine with intent to sell, and as a result, the children were left without parental supervision. In 1999, after family reunification services were terminated for both parents, a permanent plan of legal guardianship was ordered and the case was closed.
The noted evidence establishes the first requirement in section 361.5, subdivision (b)(10), set out above, namely, that father failed to reunify with half siblings of J.B. and as a result reunification services for those half siblings were terminated. However, the evidence does not establish the second requirement, that father has failed to make a reasonable effort to treat the problem that led to removal of J.B.’s three half siblings. There simply is no evidence on that issue. The problem that led to removal of J.B.’s half siblings was father’s arrest for manufacturing methamphetamine, which we broadly view as a problem with controlled substances. There is no evidence in the record on appeal to show that father failed to address that problem. In fact, there is no evidence to show father has any current involvement with controlled substances.^[10]
County counsel argues that we should construe the “problem” that led to removal of J.B.’s half siblings from father’s custody in 1996 as a general failure to protect those children, rather than a specific problem with narcotics manufacturing or substance abuse. So construed, county counsel argues, the evidence in this case that father engages in acts of domestic violence shows that he has failed to make progress toward treating that general problem. According to county counsel, in enacting section 361.5, subdivision (b)(10), “the Legislature was looking at the ‘big picture’ of parents failing to make reasonable effort to protect their children, not the specific behaviors evidencing failure to protect.” County counsel does not cite any authority to support its argument.
Moreover, county counsel’s argument is contrary to the primary objective of dependency proceedings, which is the preservation of the family. As we observed in In re Harmony B. (2005) 125 Cal.App.4th 831 (Fourth Dist., Div. Two), “The inclusion of the ‘no-reasonable effort’ clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems. The court in Renee J. [v. Superior Court (2002) 96 Cal.App.4th 1450] explained, ‘If the evidence suggests that despite a parent’s substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so. Courts must keep in mind that “[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.” [Citation.] The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case.’ [Citation.]” (In re Harmony B., supra, 125 Cal.App.4th at p. 842, quoting Renee J., supra, 96 Cal.App.4th at p. 1464.)
In denying reunification services to father, that trial court in this case stated only that father “is a person described in . . . Section 361.5(b)(10).” The trial court did not make the statutorily required findings on the second requirement, and there is no evidence that father failed to make a reasonable effort to treat the problem that led to removal of J.B.’s three half siblings. Therefore, the trial court’s finding that father is a person described in section 361.5, subdivision (b)(10) is not supported by substantial evidence and must be reversed.
3.
VISITATION ORDER
Father’s final claim is that the trial court’s visitation order is improper because it does not specify the duration and frequency of visits between father and J.B. and, therefore, does not assure that father will have some visitation with the child.
At the jurisdiction and disposition hearing, the trial court did not make an express order regarding visitation for father. Instead, when asked by father’s attorney to authorize liberal visitation under the supervision of CPS, the trial court responded, “I think there are visitation orders for [father], and I haven’t changed those. All prior orders not in conflict remain in full force and effect, but they have to be supervised.” The trial court’s prior visitation order, made at the detention hearing, is “that there be no contact between the children and [father] except contact supervised by the Child Protective Services.”
We agree with father that the order is inadequate and does not assure that visitation will actually occur. We will not address the issue further, however, because county counsel asks us to take judicial notice of a subsequent order issued two months later on November 17, 2010, after the case was transferred to San Bernardino County Superior Court. The request for judicial notice is granted. We hereby take judicial notice of the fact that on November 17, 2010, San Bernardino County Superior Court by the Honorable Marsha Slough ordered, among other things, that visitation between father and J.B. “shall be a minimum one time per week supervised by CFS only. Social worker authorized to liberalize as to frequency and duration.” We note that the order does not specify the duration of father’s minimum weekly visit; on remand that oversight should be corrected. The visitation order otherwise is adequate to assure visitation.
DISPOSITION
The disposition order denying reunification services to father is reversed, and the matter is remanded to the trial court for the purpose of ordering reunification services for father and J.B. The trial court is further directed to amend its visitation order to specify the duration of father’s minimum once weekly visit with J.B.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster
J.


We concur:

/s/ Hollenhorst
Acting P.J.
/s/ Codrington
J.



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