In re Joe C.
Filed 1/18/07 In re Joe C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JOE C., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JOSE C., Defendant and Appellant. | D048968 (Super. Ct. No. J516147D) |
APPEAL from a judgment of the Superior Court of San Diego County, Cynthia M. Bashant, Judge. Affirmed.
Jose C. appeals a juvenile court judgment of jurisdiction over his child, Joe C. He contends that insufficient evidence supports the finding of jurisdiction; that he was denied due process when he was not permitted to cross-examine Joe's mother, Rea H., and that the court abused its discretion by not continuing the hearing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of four-day-old infant Joe under Welfare and Institutions Code section 300, subdivisions (b) and (j).[1] The petition alleged Joe was at risk of being exposed to violent confrontations in the family home based on incidents of physical violence on February 1, 2004, and October 18, 2005, between Jose and Rea; on an incident in January 17, 2006 when Jose forced himself into Rea's home despite a restraining order; and further because Rea allowed him into the home. The petition also alleged that in April 2006 Rea struck one of Joe's three half-siblings, N.L., with a belt buckle, and in January 2006, she did not obtain medical care for second degree burns on N.L.'s feet.[2]
At the detention hearing on May 18, 2006, the court appointed counsel, detained Joe at Polinsky Children's Center and granted supervised visitation. Because Jose was in custody for violating probation conditions, the court continued the hearing. Jose appeared at the continued hearing the next day, and the court authorized contact visits between him and Joe during the time Jose was in custody.
The social worker reported Joe was detained with a maternal aunt in June 2006. Rea was incarcerated and faced charges of child cruelty. A relative reported Jose faced sentencing on criminal charges and might receive a sentence of five to six years if he pleaded guilty to a lesser charge. The social worker opined Rea had shown she did not have basic parenting skills, had a history of being involved in violent relationships, and minimized the danger the relationships posed to the children.
On June 29, 2006, Jose requested the court continue the jurisdictional hearing pending proceedings in his criminal case. The court denied the request.
At the jurisdictional hearing on July 3, 2006, the social worker's supervisor testified he believed Joe was at high risk because of N.L.'s injuries and the domestic violence between the parents.
When Rea was asked whether she had expected Jose at home on the date of the domestic violence incident, whether he had grabbed her wrists to prevent her from answering the door for the police, and whether the police report accurately reflected the incident, she refused to answer, asserting her privilege against self-incrimination.
After considering the evidence and argument, the court found the allegation under section 300, subdivision (j) based on the abuse of N.L. to be true, but in considering the allegations under section 300, subdivision (b), it found no evidence to prove the February 1, 2004 domestic violence incident alleged in the petition. It amended the allegations in the petition under section 300, subdivision (b) to conform to the evidence as follows:
" Count 1: The parents engaged in at least two instances of domestic violence in the past. As a result, mother obtained a restraining order prohibiting father from contacting her. Despite this restraining order on January 17, 2006, father came into mother's home, violating the restraining order that was in effect."
The court found the allegations of the petition true as amended, declared Joe a dependent, removed him from his parents' custody and placed him with a relative.
DISCUSSION
I. Evidence To Support the Jurisdictional Findings
Jose contends there was insufficient evidence to support the court's jurisdictional findings that Joe was at substantial risk because of the parents' past domestic violence and Rea's neglect or abuse of N.L. He argues because both parents were incarcerated for a significant period of time and they were able to arrange for Joe's care, there was no concern that their past domestic violence or Rea's past abuse of N.L. posed a substantial risk of harm to Joe.
A. Standard of Review
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of the credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) " [W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B. Analysis
Substantial evidence supports the jurisdictional findings. To support a jurisdictional finding under section 300, the court must find by a preponderance of the evidence:
" 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 his or her parent or guardian to adequately supervise or protect the child . . . ." (§ 300, subd. (b).)
The statute specifies that a child may come under the juvenile court's jurisdiction if he or she is at risk of serious harm. The court is not required to wait until the child is actually harmed. " The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
Rea has a history of relationships that included domestic violence. The father of two of her older children was physically abusive. She minimized the abuse and the risk to the children and appeared unconcerned about threats to her own well-being. The social worker opined Rea was living in a cycle of domestic violence and needed the help of services to protect herself and her children. She reported that in the past Rea had been afraid of the violent men in her life and had obtained restraining orders, but then invited the men into her home and protected them by lying to police about their whereabouts. The evidence showed Jose and Rea had engaged in domestic violence and Rea had obtained a restraining order against him. On October 18, 2005 and January 17, 2006, Jose violated the restraining order and was arrested on both occasions. At the hospital after Joe's birth, in response to the social worker's question, Rea said she was not sure if she had a restraining order against Jose.
Although the parents were incarcerated at the time of the hearing, it was unknown when they would be released from custody. Joe was an infant when he was taken into protective custody and thus totally dependent on his caregivers. The court's finding Joe was at substantial risk of serious harm under section 300, subdivision (b) is well supported.
Substantial evidence also supports the finding under section 300, subdivision (j) that Joe was at substantial risk because of Rea's past physical abuse of N.L. A child comes within the jurisdiction of the juvenile court under section 300, subdivision (j) when the child's sibling has been abused or neglected within the meaning of section 300, subdivisions (a), (b), (d), (e) or (i) and there is substantial risk this child will be abused or neglected as defined by those subdivisions.
Although Joe himself had not been abused, his half-sibling N.L. had suffered second degree burns on his feet and Rea had delayed in getting medical treatment, saying she was scared. Also, she admitted hitting N.L. with a belt buckle, injuring his eye. The court was not required to prove two petitions, one against Rea and one against Jose, to assume jurisdiction. " A petition is brought on behalf of the child, not to punish the parents." (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) The finding under section 300, subdivision (j) is supported by substantial evidence.
II. Jose's Inability To Cross-Examine Rea
Jose asserts he was denied due process because he was not permitted to confront and cross-examine Rea, the only witness against him. He argues Rea testified against him in criminal court and made statements against him to the police and the social worker. He claims it was important for him to cross examine her because if it were discovered she committed perjury at the criminal court hearing, that fact would have discredited other statements she made to police and the social worker. He complains Rea was allowed not to answer whether she had expected him on the day of the domestic violence incident, whether he had grabbed her wrists to prevent her from answering the door, and whether the police report accurately reflected the incident.
A. Standard of Review
" [D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' [Citation.]" (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) " The essence of due process is fairness in the procedure employed . . . ." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.)
B. Analysis
Jose was not denied due process. He was present with counsel at the hearing and was presented the opportunity to present objections. Further, he has forfeited his right to claim error. " A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) 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.] [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Forfeiture applies to claims of statutory error and to claims of violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th 193, 198.)
Jose did not object to admission of the report about the January 17, 2006 incident,[3] nor did he object that the social worker who prepared the reports was not available to testify,[4] nor did he object to the court's decision to allow Rea not to testify when he attempted to question her. By failing to object in the juvenile court, Jose has forfeited the argument he was deprived of his right of cross-examination.
Moreover, even were we to consider the issue, Jose has not shown prejudice. The Agency concedes that the court erred in not ordering Rea to testify. Section 355.1, subdivision (f) provides " [t]estimony by a parent, guardian, or other person who has the care or custody of the minor made the subject of a proceeding under Section 300 shall not be admissible as evidence in any other action or proceeding." Thus, the court should have required Rea to testify.
However, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The allegation of the amended petition stated Jose and Rea had previously engaged in at least two instances of domestic violence and, in violation of a restraining order, Jose came to Rea's home on January 17, 2006. Evidence of the past domestic violence between Jose and Rea was contained in the social worker's reports and included information about an incident on October 18, 2005, when Jose violated a restraining order. There also was a referral regarding an incident of mutual combat between Jose and Rea on February 19, 2004. The social worker's report summarized the police report of the January 17, 2006 incident when Jose came to Rea's home in violation of the restraining order. The police report describing the January 17, 2006 incident included the officer's account as well as Rea's statements to police. The officer reported going to the home because Rea's cousin had called to say Jose was there in violation of a restraining order. The officer said he and another officer forced entry when no one would come to the door, and Rea and then Jose came downstairs and Rea spoke softly to them so that Jose could not hear. The officer reported Rea appeared nervous and scared and Jose " acted like he did not know what was going on." Even without Rea's statements, the police report was sufficient to support the finding of jurisdiction under section 300, subdivision (b). In addition, as stated above, there was evidence to support jurisdiction under section 300, subdivision (j) based on Rea's abuse of N.L. The error in not requiring Rea to testify was harmless beyond a reasonable doubt.
III. Denial of Jose's Request for a Continuance
Jose contends the court abused its discretion by not continuing the hearing to allow him to complete criminal court proceedings in which he was attempting to withdraw his guilty plea. He argues the information about his criminal sentence would have aided the court in making a decision in Joe's case.
A. Standard of Review
The juvenile court may grant a continuance only upon a showing of good cause. " [T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status . . . ." (§ 352, subd. (a).) " Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
B. Analysis
Jose has not shown the court abused its discretion by denying his request for a continuance. The jurisdictional hearing was held 45 days after Joe was detained. Section 352, subdivision (b) requires that when a child has been removed from his parents' custody the juvenile court may not grant a continuance that would result in a disposition hearing being held more than 60 days after the detention hearing unless the court finds exceptional circumstances. Section 352, subdivision (a) provides that " neither a pending criminal prosecution nor family law matter shall be considered in and of itself a good cause [to grant a continuance]." Jose's incarceration did not prevent him from being present at the hearing, and the immunity provided by section 355.1, subdivision (f) allowed him to testify in the dependency proceedings. The court did not abuse its discretion by denying his request to continue the hearing to some future date so the court would have information about the result of the criminal proceedings.
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] In January 2006, the court had based juvenile court jurisdiction over Joe's half-siblings based on domestic violence and Rea's failure to obtain medical care for N.L.'s burns. On May 1, 2006, the Agency filed a section 342 petition on behalf of the three children based on Rea hitting N.L. with a belt buckle.
[3] The report contained the police description of the January 17, 2006 incident, including that Rea's cousin called police to report Jose was at the home in violation of a restraining order and that when the police determined people were inside the home but no one would open the door, they forced entry and found Jose there with Rea and two of her children. The report stated Rea told police Jose came to the home, left while she took her son to school, and later returned. She said when police arrived, he went upstairs and told her to come with him, grabbed her wrists and told her not to answer the door. She said she complied because she was afraid he would hurt her.
[4] Jose did not ask the supervisor of the social worker who had prepared the reports about any details of the reports. He asked the supervisor only two questions: (1) whether he believed Joe was at risk of being exposed to domestic violence or being physically abused when both parents were incarcerated, and (2) whether he was concerned that Joe's caretaker could protect him from his parents if the juvenile court were not involved. He chose not to cross-examine the supervisor about the reports.
