In re Louis B.

Filed 3/9/07 In re Louis B. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Jamie J. (Mother) and Louis B. (Father), parents of Louis B., Jr. (Lou), born in 1999, and Justice B., born in 2003, separately appeal from the Alameda County Juvenile Courts jurisdiction and disposition orders by which their two sons were removed from their home. They contend that the juvenile court erred in allowing telephone testimony and relying on outdated psychological evaluations, and that there was insufficient evidence supporting the courts findings. In addition, Mother claims the juvenile court erred in ordering her to sign a release of information for her daughter, who is not involved in this proceeding. Father claims the juvenile court failed to properly exercise its discretion under Evidence Code section 352 and that the court committed prejudicial misconduct. All claims are without merit and, therefore, we shall affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Prior Proceedings

On August 2, 2002, the Alameda County Social Services Agency (the agency) filed an original petition alleging that Lou was at risk because of his parents history of substance abuse and domestic violence. According to the petition, there were numerous firearms in the home, some of them loaded and within Lous reach. The house was filthy and smelled of urine, there were knives and broken glass on or near the floor, and no food in the house. Lous diapers were soiled, and he was wearing a shirt soaked in urine. Mother was pregnant and admitted to using methamphetamines at least twice during her pregnancy. She acknowledged numerous incidents of domestic violence, and her injuries included bloody noses, chipped teeth, broken bones, and cuts and bruises. Mother later recanted, stating the altercations were accidental and that Father never means to hurt her. The police arrested Father on domestic violence charges and obtained an emergency restraining order on behalf of Mother. The juvenile court placed Lou in a foster home and ordered reunification services for his parents.

In March 2003, the agency filed a petition on behalf of Lous sibling, Justice, alleging he was at risk because of his parents substance abuse and domestic violence and because his parents had not addressed the issues leading to Lous removal. The juvenile court detained Justice on March 11, 2003. After a contested six-month review hearing in Lous case, the court found that Mothers progress had been partial and Fathers progress minimal, but continued reunification services. After a contested jurisdiction and disposition hearing in Justices case, the juvenile court ordered that Justice remain in out-of-home care.

In August 2003, the parents completed a psychological evaluation. On September 8, 2003, the parties agreed that Lou would be placed in Fresno with Fathers ex-girlfriend and their daughter. An interim review report stated that Mother had been living apart from Father since October 2003 and was staying with her maternal uncle in Tracy. She regularly visited Lou and met with the assigned social worker, and provided a hair follicle test that was negative for drug use. The parties later reached another agreement that Lou would have a trial visit with his mother. All contact between Lou and Father was to be supervised, and Fathers reunification services were terminated.

An April 26, 2004 report recommended that Lou be placed with Mother and that family maintenance services be provided. The trial visit was challenging for Mother and there was concern about Lous aggressive behavior, but Mother and Lou appeared to be adjusting well. On April 26, the juvenile court found Mother had made substantial progress in her case plan and returned both children to her care, under the agencys supervision. An August 25, 2004 report recommended that the children continue to live with Mother in Tracy. The social worker had not heard from Father since March.

An addendum report recommended that the case be dismissed. Although Lous behavior was still a concern, Mother reported that he was doing well in school and said she would not allow the children to visit their father without her supervision. The juvenile court terminated its jurisdiction on October 5, 2004, and awarded legal and physical custody of the children to Mother.

Current Proceedings

On January 27, 2005, the agency filed a second petition on behalf of the children, who were with Justices former foster parents, Mr. and Mrs. H., at the time they were taken into protective custody. The petition alleged Mother had returned to Father with the children and that the family was living in a dirty basement without a kitchen, bathroom or heat. It also alleged the children were filthy, that Justice had suffered an untreated gash on his cheek, that the parents had failed to retrieve the children from the former foster parents, and that the parents had a history of domestic violence and substance abuse. According to the detention report, Mother said she was still living in Tracy, but Lou told a social worker that the uncle kicked us out because we were staying at dads for a long time, and that his mother hit or kicked his father and his father punched his mother bad. The uncle said Mother left on Christmas Eve and had been gone since. Mr. and Mrs. H. stated they had cared for the children several times and that when they had them for Christmas, they did not hear from Mother for a week. They also picked up the children on Friday, January 21, and were supposed to have them for the weekend only, but Mother did not arrive at the designated pick-up location on Sunday. The children were filthy and sometimes hungry, and Lou was not attending kindergarten.

According to a jurisdiction and disposition report, Mother discontinued counseling shortly after the prior case was closed. Fathers ex-girlfriend reported that Mother told her in October 2004 that Father was living in a storage room with no running water, no plumbing and no heat and that Lou had a difficult time there because he didnt like going potty in a corn can. A neighbor of the uncle said Mother did not take Lou to school and was gone with her children all the time, and that Mother told Lou not to tell the social worker they had been at Fathers, causing Lou to become anxious. Lou had been late or missed school 37 out of 97 days, was in the bottom of his class and was not able to write his own name. He had previously mastered potty training, but was now regularly pooping and peeing in his pants and had to use pull-ups. According to Mrs. H., Lou had a severe rash on his buttocks when he arrived at her home and Justice, previously an angel baby, had become a very angry child. Mother explained that she did not want to stay with the uncle because he touched her inappropriately and had bought her a bathing suit, underwear and pajamas. The uncle told the social worker that he gave Mother pajamas, underpants and socks. He denied touching her inappropriately and stated, Im 75 years old; Im not that stupid.

According to an addendum report, the uncle reported that he found a letter addressed to Mother from Lous school, marked as Important and advising Mother to have Lous eyes examined promptly. Mother had not followed up and had not advised the foster mother of Lous need for eye care. The paternal grandmother reported that Lou said he had seen his parents together after they moved to Tracy but said to her, Grandma, dont tell.

Before the parents arrived late to their contested jurisdiction and disposition hearing, the court stated, Of particular note is that the mother and father are not here and I believe its both their contest. This is a matter that the court is very familiar with. I just dismissed this case back in October of last year and here we are again. These children are at risk again, which Im not very pleased about. During the proceedings, Mothers counsel asked to have his clients mother, who lives in Nevada, testify by telephone. The parties agreed to have that witness, and various other out-of-town witnesses, testify by telephone.

Fathers ex-girlfriend testified telephonically that she was Lous foster mother from November 2003 to March 2004. A week before Halloween, Mother told her she was living at the uncles but was going to Alameda to stay with Father. Mother told her that Father had been living in a U-Haul truck and that she and the children visited him there for the weekend. Mother said she took Lou out of school to see Father from Thursday through Monday or Tuesday. Mother also told her that the social worker said Father was not allowed to visit the children at the uncles, but that she had no obligation to do anything because there was no court order.

Mrs. H. testified that she was Justices foster parent from March 2003 to about May 2004 and had been taking care of both children since January 2005. She testified that Mother and the children were doing well in the summer of 2004 but that when she saw them around Thanksgiving, she was sad to see that the boys were dirty, with raggedy, dirty, holey clothing and a bad odor. She also noticed that Mother was thin and had holes in her clothes. Lou said he had candy for breakfast and was hungry. Mother dropped the boys off with clothes that were way too small, and with shoes for Lou that were about three sizes too big and caused him to fall many times.

Mrs. H. testified that Mother called her in the latter part of January to tell her that the uncle had thrown her out. She agreed to take care of the boys for the weekend. When she took the boys home, Lou had a rash on his buttocks, which she treated. Mother did not bring any food or diapers, and she brought the childrens clothes in a garbage bag, informing her that the clothes were dirty because she had washed them with a dirty diaper. Justices tennis shoes had cat poop all over them so Mrs. H. bought him new shoes. When Mrs. H. went to meet Mother on Sunday, Mother was not there. They rescheduled to meet later in the day, but Mother once again did not arrive. Mrs. H. testified that Lous reaction to visitation with the parents since February was very nervous. He pooped [in] his pants on the way home from the visit and peed in his pants on the way to another visit.

The uncles neighbor testified telephonically that in or about September 2004, Mother told her she had been staying in Alameda with Father in the basement of a Victorian house. She testified that starting around November 2004, Mother and the children would be away from Tracy for a week or two at a time. According to the neighbor, Father gave Lou a ride on his motorcycle without putting a helmet on Lou. She said that when she asked Mother what she saw in someone who hit her, Mother responded that she loved Father.

A social worker testified that after receiving a report that the children were living in an unsafe place, she asked the police to visit the family. When the police arrived, no one was home, so they spoke to neighbors and left. When they returned the following day, the place was organized, with food, water, heat and a toilet, and the children were clean and groomed.

When Fathers counsel requested to have a witness who resides in Alameda testify by telephone, the court expressed some concerns. There was no objection when Mother asked to have the uncle testify by telephone.

Mother testified that she moved to the uncles house in October 2003, and that he and her grandmother supported her financially. In March 2004, the uncle started asking if she would date him, touched her inappropriately and was always offering to take her to Victorias Secret. She testified that prior to October 2004, she almost always left her children with Mrs. H. when she visited Father. They began staying with Father two or three weekends each month starting in or about Halloween, with some of the weekends being extended periods of up to four or five nights. There was initially no toilet at Fathers place but one was later installed. There was no place to bathe the children. The landlord said she and the children could visit but could not live there.

Mother said she did not have Lou enrolled in any school other than the one in Tracy. She did not recall why Lou had missed school on certain days and said they may have been visiting Father. She said, [i]ts fairly important for her to take Lou to school. She acknowledged receiving a letter from Lous school notifying her that he needed glasses but said she never got around to it. She did not look for a job, did not go to school and did not continue to see her therapist after the prior case was closed. She said she was not sure how Justice cut his face, and that she did not get medical care for him for fear of involving the agency again.

During Mothers testimony, a deputy sheriff informed the court that there was a warrant for Mothers arrest for a stolen vehicle. Mother became upset and counsel for the parents moved for a mistrial. The court denied the mistrial but granted Mothers request for a continuance. At the continued hearing, Mother testified that when the prior case was dismissed she did not intend to move back with Father. She said that when she left the children with Mrs. H., Lou had a slight rash, which Mother did not treat.

The paternal grandmother testified that she last saw the children in July or August 2004 at Fathers ex-girlfriends house. Mother sent them to the ex-girlfriends with no clean clothes and no diapers. Lou told her he was afraid to say he saw his father because the cops would come and take him away.

The uncle testified by telephone that he allowed Mother to stay with him as a favor to Mothers grandmother. Mother started visiting Father every other weekend in October 2004, and more frequently thereafter. Recently, the school had advised him that they were in the process of terminating Lous enrollment. The longest period Mother was gone was six weeks. Mother moved out around January 2005, when he told her she could not use his place just for picking up the mail and bringing the children for showers and laundry. The uncle said he never made any sexual advances to Mother but said he would let her live with him as long as she wanted if she were not his niece.

The mothers grandmother testified telephonically. At one point during her testimony she seemed to have disappeared. Mother informed the court that her grandmother was working, and that when the grandmother returned to the phone she said she was with a customer. The court admonished her and she continued to testify that Mother told her she visited Father in Alameda for the weekend but left the children with Mrs. H. during that time.

Father testified that he saw the children once at the uncles house in Tracy on Fathers Day, and that when he drove his motorcycle to Tracy, his drivers license was probably expired. He denied allowing Lou to ride with him without a helmet. He testified that he had never engaged in domestic violence with Mother, never had a substance abuse problem, did not drink alcohol, and had tested positive for alcohol because he took Robitussin DM. He testified that on occasion Mother did come with the boys to stay with him. He was currently looking for a permanent home. He testified that since Justice was born, he had not held a regular job and had not paid any child support but was buying the children clothes and toys. He testified that he was not aware that Lou had missed so many days of school. He had heard about the school informing Mother that Lou needed glasses, but there was nothing he could do, as he did not have custody of the boys. He testified that since October 2004, he had only engaged in physical altercation with Mother and the children affectionately.

Fathers witness testified telephonically, stating he was in the desert and in the middle of a business deal. He testified that he allowed Father to use the basement of a property he owns in exchange for work. His original intent was for Father to use the room for storage and a workshop, as there is no bed, shower or bath. Some of the tenants complained that they felt it was not appropriate to have a family staying there. He did not know whether he was allowed to have an apartment in the basement of his property.

According to a March 22, 2005 memorandum, Mrs. H. said that Lou told her he and Justice slept in a car while their parents slept in a U-Haul truck. A police report indicated that Mother rented a U-Haul truck and had not returned it for over 40 days. According to a May 12, 2005 memorandum, the children did not act out when told their visits with their parents were over, and they had not requested additional visits. A July 27, 2005 memorandum stated that visits were going well, although the parents consistently arrived late and had missed two visits.

The juvenile court found most of the allegations in the petition to be true. It declared the children dependents of the juvenile court and ordered them removed from their parents home. The parents filed timely notices of appeal.

II. DISCUSSION

A. The juvenile court did not err in allowing witnesses to testify by telephone.

The parents claim the juvenile court erred in allowing witnesses to testify by telephone because there is no authority for the use of telephone testimony, and because the witnesses failure to appear in court denied them the right to confront witnesses. The parents assert they did not forfeit their right to appellate review of this issue despite their attorneys failure to object because the right to confront witnesses is so fundamental that a personal waiver from the parties was required, but not obtained. Their claims are without merit. Because the parents agreed to, and in some cases requested, the use of telephone testimony, they waived their right to raise this issue on appeal. (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) To the extent the parents assert a personal waiver was required, we reject the contention.

In criminal proceedings the defendant has a fundamental right to confrontation under the Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment. (People v. Stritzinger (1983) 34 Cal.3d 505, 515; Pointer v. Texas (1965) 380 U.S. 400, 406.) This right can be waived only by a knowing personal waiver by the defendant. (People v. Guzman (1988) 45 Cal.3d 915, 935-936, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Although a party to a civil proceeding, including a dependency proceeding, also has a due process right to confront and cross-examine witnesses under the Fifth and Fourteenth Amendments and by statute, the right is not absolute. (In re Mary S. (1986) 186 Cal.App.3d 414, 419-420 [approving minors examination in dependency proceedings outside presence of parents]; Welf. & Inst. Code,  311, 350, subd. (b); see also In re April C. (2005) 131 Cal.App.4th 599, 611.) The parents cite no persuasive authority, and we find none, supporting their position that the right to confront witnesses is so fundamental in dependency proceedings that a personal waiver is required. To the contrary, in In re Kerry O. (1989) 210 Cal.App.3d 326, 333-334, the appellate court rejected a parents argument that a personal waiver was required where the parents attorneys stipulated to use a transcript of a witnesss prior testimony without cross-examining that witness in the current proceeding. (See also In re Mary S., supra, 186 Cal.App.3d 414.)[1]

Even in criminal cases, an attorneys waiver is assumed to reflect his clients assent in the absence of an express objection when other fundamental rights are involved. (People v. Guzman, supra, 45 Cal.3d at p. 936.) An attorney has the right to control matters of trial strategy, such as whether a particular witness should be called, whether certain evidence should be introduced, and whether an evidentiary objection should be interposed. (People v. Frierson (1985) 39 Cal.3d 803, 813.) The decision to accept telephone testimony is of a similarly strategic nature which the attorneys have the authority to decide on behalf of their clients. No personal waiver was required.

Even assuming that the attorneys agreement to use telephonic testimony did not waive the clients right to object, the parents claim fails on the merits. Although there is no statute or court rule authorizing telephone testimony in dependency proceedings, there is also no statute or court rule prohibiting its use. Evidence Code section 711 provides that a witness can be heard only in the presence and subject to the examination of all the parties to the action, and Welfare and Institutions Code section 355, subdivision (c)(1)(D), requires witnesses to be present in court. While these provisions might be read to imply the necessity of physical presence, they can also be interpreted to permit testimony by a witness who is not physically in the courtroom, so long as the testimony is received in the courtroom in the presence of the parties who have the opportunity to object and to cross-examine the witness. In the absence of any countervailing authority we deem the latter to be the more reasonable interpretation.

The procedure is not novel. Family Code section 3411 allows out-of-state witnesses to testify by telephone in child custody proceedings. Federal Rules of Civil Procedure, rule 43(a), authorizes the use of telephone testimony at trial, . . . for good cause showing in compelling circumstances . . . . Even in the absence of statutory authority, courts have inherent power and wide discretion to develop rules of procedure aimed at facilitating the administration of justice. (In re Jeanette H. (1990) 225 Cal.App.3d 25, 34.) This is particularly true in dependency cases, where [j]uvenile courts are required to control all proceedings with a view to the expeditious and effective ascertainment of the jurisdictional facts and of all information relevant to the present condition and welfare of the child.  (Id. at p. 36.)

Reviewing the juvenile courts authorization of telephone testimony here for abuse of discretion (see In re Nada R. (2001) 89 Cal.App.4th 1166, 1176 [juvenile courts order denying use of telephone testimony reviewed for abuse of discretion]), we find no reason to question the courts decision to accept the testimony in the manner to which the parties agreed. All witnesses who testified telephonically provided relevant information. All were located at considerable distance from the courthouse, so that requiring their personal appearance, if that was possible at all, would have given rise to additional cost, inconvenience to the witnesses, and potential loss of helpful testimony or delay of the proceedings. Although the court was unable to observe the witnesses demeanor, it was able to evaluate their credibility by listening to their tone and manner of speech, detecting any internal inconsistencies in their testimony and determining whether, and the extent to which, the testimony was corroborated by other evidence. Although there were technical problems and irregularities while taking the telephonic testimony, all such problems were promptly corrected. The parents complain that oath taking by telephone is certainly of questionable validity, but the record reflects that the judge asked all witnesses to raise their right hands and to take the oath and, in any event, the parents waived this issue. (In re Heather H. (1988) 200 Cal.App.3d 91, 96 [claim regarding adequacy of oath-taking waived if not raised at trial].) In light of the need for expediency and prompt resolution of custody matters and the policy in favor of obtaining information relevant to the childs welfare, the courts acceptance of telephone testimony was not error. The parents due process right to confrontation was adequately protected. (Cf. In re Kerry O., supra, 210 Cal.App.3d at p. 332.)

B. The juvenile court did not err in relying on outdated psychological evaluations.

Father joins in Mothers argument that the jurisdictional and dispositional orders must be reversed because the juvenile court erred in admitting into evidence and substantially relying on the parents outdated psychological evaluations of August 2003. The argument is without merit.

The parents attorneys objected to the admission of excerpts from the evaluations, and Mothers counsel also objected to the admission of the entire evaluations. The trial court enjoys broad discretion to determine whether evidence should be admitted, and its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.  (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

The juvenile court did not abuse its discretion in admitting the evaluations into evidence. The parents rely on In re Heather P. (1988) 203 Cal.App.3d 1214, in which an outdated evaluation was deemed not credible or solid where the parent had undergone extensive therapy since the date of the evaluation (id. at pp. 1229-1230, disapproved on other grounds by In re Richard S. (1991) 54 Cal.3d 857, 864). In re Heather P., supra, at page 1227, however, is inapposite, as the juvenile court in that case failed to recognize that the evaluations were outdated. To the contrary, the court there stated that the evaluation constituted the only evidence in the case that could have supported the juvenile courts findings, which shows the juvenile court afforded it great weight in making its findings. In contrast, here the juvenile court acknowledged the evaluations were old, and the record does not reflect that the court gave the evaluations undue weight. The court noted the relevance of the evaluations, stating it should review all of the evidence that is relevant, but also acknowledged it was stale, stating, I do understand . . . it goes to a time before these proceedings and, therefore, does not give a full picture. Its where the parents were then, but not where they are now. So I really think it goes to weight and not to admissibility. In addition, in contrast to In re Heather P., there was ample additional evidence from which the juvenile court could make its jurisdictional and dispositional findings. Thus, the juvenile court did not err in admitting the psychological evaluations into evidence.

C. The court did not err in ruling on objections under Evidence Code section 352.

Father asserts the orders must be reversed because the record fails to show the juvenile court weighed the probative value of the psychological evaluations against their prejudicial effect under Evidence Code section 352. We disagree.

Evidence Code section 352 provides that the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of undue prejudice or confuse the issues. When an objection under this section is raised,  the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value.  (People v. Leonard (1983) 34 Cal.3d 183, 187-188 [error when court gave no indication of whether it weighed prejudice against probative value].) Here, although the juvenile court did not use the terms prejudice or probative value when issuing its rulings, the record does indicate that the court adequately weighed the potential prejudice of admitting the evaluations into evidence against their probative value.

The parties in this case engaged in extensive discussions about whether the excerpts or evaluations should be admitted into evidence, and if so, what weight they should be given. Fathers counsel first objected to the admission of the excerpts, asserting their probative value was nil and that they were highly prejudicial because they were incomplete. The juvenile court responded: I may agree with you that the prejudice outweighs the probative value once I have a clear understanding of why certain portions were extracted and not others. . . . I dont want to look at that in a vacuum at this point until I hear further. . . . Im overruling the objection at this time subject to your renewing it at a later time.

Later, when the parties discussed whether the complete evaluations should be admitted, counsel for the agency indicated they had probative value because they would give the court a very good picture of the parents level of functioning at the time of the prior dependency action and the case plan that was set forth to address their specific needs and how they complied with the case plan. The juvenile court acknowledged the potentially prejudicial nature of the evaluations because they were outdated and stated it would give the evaluations the weight that [they are] entitled. In contrast to People v. Leonard, supra, 34 Cal.3d 183, 187-188, in which there was no indication the court weighed prejudice against probative value, here the record reflects the juvenile court adequately considered the two factors.

D. Substantial evidence supports the jurisdictional and dispositional findings.

The parents claim there was insufficient evidence supporting the juvenile courts jurisdictional and dispositional findings. We disagree.

Welfare and Institutions Code section 300, subdivision (b), provides that a child comes within the jurisdiction of the juvenile court if he or she has suffered, or there is a substantial risk he or she will suffer, serious physical harm or illness . . . by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment. To remove a child from parental custody, the juvenile court must find by clear and convincing evidence that there is or would be a substantial danger to the childs physical or emotional well-being if the child were returned home, and there are no reasonable means to protect the child without removal. (Welf. & Inst. Code,  361, subd. (c)(1).) 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. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

We apply the substantial evidence standard of review to both jurisdiction and disposition orders. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re James C. (2002) 104 Cal.App.4th 470, 482.) Under this standard, we review the record to determine whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)

Here, there was ample evidence the parents were not providing adequate food, clothing, shelter or medical care and that the children were at risk unless removed from parental care. As the judicially noticed orders from the prior case showed, the parents had a history of substance abuse and domestic violence that prevented them from adequately caring for their children. Mother made progress during the pendency of the prior proceedings but Father made almost no progress, and reunification services were terminated after he failed to participate in most of the services that were offered to him. Mother moved away from Father and began living in a stable, safe and rent-free home in Tracy, yet almost immediately after the prior case was closed and the agency was no longer involved, she returned to the same environment and lifestyle that had previously caused the children to be removed.

Mother began visiting Father frequently, often staying with the children for four or five nights, causing Lou to miss many days of school. Although Lou, five years old, may not have been required to be enrolled in kindergarten for another year, he was in fact in school in August 2004 and was doing well, suggesting it would have been in his best interests to continue to attend. Mother told Lou not to tell anyone they were staying with Father, causing Lou to become anxious. There was testimony that the parents sometimes slept in a U-Haul truck, or in a cold basement or storage room. There initially was no toilet at Fathers residence so Lou had to go potty in a corn can. There were no bathing facilities and no beds. This was not a place for a family with young children to live. If the children were returned to his care, Fathers only option was to have them live in Alameda with his witness on a temporary basis, as he had not yet found a more permanent residence.

There was also substantial evidence of a pattern of neglect. For fear of involving the agency, Mother did not seek medical attention when Justice suffered a cut on his face that most likely required stitches. She did not treat Lous rash. The children were filthy, had an odor and wore dirty, ill-fitting clothes, and Mother left them with Justices former foster parents for up to a week at a time without any provision for their care. She did not call her children or inquire about their well-being during the holidays and she failed to pick them up on the agreed dates. She did not enroll Lou in a kindergarten in Alameda even after she began staying there regularly, and believed it was only fairly important for Lou to attend school regularly. She did not take him to the eye doctor after receiving a letter from his school urging her to do so promptly, simply because she never got around to it. There was evidence that the children would continue to suffer in their parents custody, as Lou, who was previously potty trained, was now regularly pooping and peeing [in] his pants, and Justice, who the former foster parents referred to as the angel baby, had turned into a very angry child. Substantial evidence supports the juvenile courts findings.

E. The juvenile court had the authority to order Mother to sign a release of

information for her daughter who was not involved in this dependency proceeding.

Mother claims the juvenile court erred in ordering her to sign a release of information for her daughter who was not involved in this dependency proceeding. Her claim is without merit.

The juvenile court has broad power to conduct discovery in the way it deems necessary to determine the best interests of a child under its jurisdiction. (Cal. Rules of Court, rule 5.546(e), (g), (h) & (j).) While the juvenile courts discretion in discovery matters is not unlimited, it does have the inherent authority to order such discovery necessary for the administration of justice and the orderly ascertainment of truth. (Clinton K. v. Superior Court (1995) 37 Cal.App.4th 1244, 1246, 1248.) The juvenile courts discovery orders will be reversed on appeal only on a showing of clear abuse of discretion. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1166.)

The juvenile court did not err in ordering Mother to sign a release for information for her daughter who resided in Nevada and was not involved in this dependency proceeding. Mother stated her parental rights to her daughter had been terminated in March 2004, then later contradicted herself to say her rights had not been terminated. A custody hearing regarding the daughter had taken place in Nevada in or about October 2003. Information relating to Mothers treatment of her daughter is relevant, (see, e.g., Welf. & Inst. Code,  355.1, subd. (b) [proof that parent neglected another child admissible evidence]; see also In reDorothy I. (1984) 162 Cal.App.3d 1154, 1157-1158 [proof that childs half-sibling was mistreated by the same parent sufficient for agency to intervene]), and could assist the juvenile court in assessing the issues before it. The juvenile court acted within its discretion when it ordered Mother to sign a release.

F. The juvenile court did not commit prejudicial misconduct.

Father asserts the juvenile court committed misconduct by prejudging the case and being discourteous towards Mothers attorney. He claims the following incidents constituted judicial misconduct: (1) the judges comment before trial that she was not happy that the children were at risk again; (2) admonishing Mother for making an inappropriate phone call to a witness before giving Mother an opportunity to present her position; (3) not allowing a therapist to testify whether it was harmful not to ensure Lous regular kindergarten attendance; (4) questioning whether telephone testimony was appropriate only when Fathers counsel asked to call Fathers witness by telephone (5) accusing Mother of being a pathological liar; and (6) repeatedly [making] discourteous and disparaging comments to Mothers counsel. We do not consider any of the challenged actions to constitute judicial misconduct.

As a preliminary matter, Father forfeited his contention that judicial misconduct violated his rights because he did not object at trial. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237 [As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial].) However, the argument also fails on the merits. A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit one party or create the impression it is allying itself with the other. (People v. Raviart (2001) 93 Cal.App.4th 258, 269.) We evaluate the propriety of judicial comment on a case-by-case basis.  (People v. Sanders (1995) 11 Cal.4th 475, 531-532.)

The courts expression of displeasure, more properly characterized as disappointment, in seeing the return of the children to the dependency court so soon after dismissal was hardly misconduct. The juvenile court admonished Mother for intimidating a witness but acknowledged it had not yet heard from anyone and was basing its comments on what was described in the social workers report. Refusing to allow the therapist to testify regarding the harm of not attending school was within the judges discretion and certainly not misconduct: the therapist had not seen Lou since he started school. The juvenile court understandably questioned whether telephone testimony was appropriate for Fathers witness because he resided in Alameda County, while all other witnesses who testified by telephone were from out-of-town. The courts reference to Mother as a pathological or habitual liar was made in the context of the courts determination, based on the testimony and all the evidence before it, that Mothers testimony was not credible. The record shows the juvenile court was patient and courteous with Mothers counsel, providing him with ample opportunity to make his arguments and giving him additional time to prepare and to adjust to the ruling or re-orient his questions after numerous asked and answered objections were sustained.

Based on the entire record, we have no doubt the parents were afforded a fair trial. A [trial courts] ordinary efforts at courtroom administrationeven [its] stern and short-tempered . . . ordinary efforts at courtroom administrationremain immune. (Liteky v. United States (1994) 510 U.S. 540, 556.) Here, although the trial court on a few occasions restricted Mothers counsel from repetitive examination, its rulings were within the proper scope of its discretion and reflected no bias or misconduct.

Because each of the parents claims is without merit, their claim that the errors, taken together, were prejudicial also fails. (See People v. Cole (2004) 33 Cal.4th 1158, 1235-1236 [cumulative effect of purported errors does not require reversal where court has rejected all claims of error].)

III. DISPOSITION

The juvenile courts orders are affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] We note that related issues have arisen in other non-juvenile contexts. (E.g., People v. Williams (2002) 102 Cal.App.4th 995, 998 [approving use in criminal trial of videotaped testimony of witness with physical and mental disabilities where witness had been cross-examined by counsel and defendant had heard examination from wired detention cell]; compare Coy v. Iowa (1988) 487 U.S. 1012, 1020-1022 [blocking defendants view of child victim witness with screen denied defendant right to confrontation where no finding that the witnesses needed special protection] with Maryland v. Craig (1990) 497 U.S. 836, 852 [defendants observation of witness over closed-circuit television constitutionally acceptable].) We consider these cases of limited significance here because of the fundamentally different purposes of criminal as opposed to juvenile dependency proceedings. (In re April C., supra, 131 Cal.App.4th at p. 611; see also In re Amber S. (1993) 15 Cal.App.4th 1260, 1265; Seering v. Department of Social Services (1987) 194 Cal.App.3d 298, 304.)