In re S.B.

Filed 5/11/06  In re S.B. CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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     J.B. (appellant), the father of S.B. and O.B. (the minors), appeals from the juvenile court's orders sustaining a supplemental petition as amended, continuing reunification services, and denying placement of the minors with appellant.  (Welf. & Inst. Code, § 395; undesignated section references are to the Welfare and Institutions Code.)  Appellant makes 16 claims of alleged error, only one of which, for reasons that follow, we need review on its merits.  We shall affirm the orders.

FACTS

     On June 4, 2003, the Department of Health and Human Services (DHHS) filed amended juvenile dependency petitions on behalf of one-year-old S.B. and 12-year-old O.B.  Those petitions alleged in part that appellant and the mother of the minors had engaged in domestic violence in front of the minors.  (§  300, subd. (b).)  The juvenile court sustained those petitions as amended and adjudged the minors as dependent children.  O.B. was placed with appellant and her mother and S.B. was placed in foster care. 

     On February 18, 2004, DHHS filed a supplemental petition on behalf of O.B., alleging the minors' mother and appellant had engaged in domestic violence in the presence of O.B.  DHHS detained O.B.  Appellant now lived in Oregon.  The juvenile court ordered DHHS to solicit an evaluation of appellant's home by Oregon authorities pursuant to the Interstate Compact on the Placement of Children (ICPC).  (Fam. Code, §§ 7900-7910.)

     According to a September 2004 report by DHHS, appellant was participating in various services offered by Oregon authorities.  However, he had failed to complete a program of individual counseling there.  Accordingly, the Oregon Department of Human Services - Child Welfare refused to permit placement of the minors with appellant in Oregon until he completed all of his services. 

     At the December 3, 2004, hearing on the supplemental petition and other matters, the juvenile court sustained the supplemental petition as amended in part on the ground that Oregon authorities would not accept placement of the minors with appellant until he completed his services in Oregon.  The court noted appellant's objection to the necessity for an ICPC evaluation.  The minors remained as dependent children and the court noted appellant would continue to receive services.  The court also noted the parties agreed it was not necessary at that time to address the reasonableness of the services received by appellant. 

DISCUSSION

     A.  Prologue

     Nearly all of appellant's contentions as tendered in this appeal are fatally defective.  For the most part, counsel for appellant has failed to state a claim of error as to appellant, or counsel and has not provided support in the record that any error was made.  In connection with other claims of error, counsel for appellant has omitted to show that appellant was prejudiced, which is a constitutional requirement.  (Cal. Const., art. VI, § 13; see People v. Archerd (1970) 3 Cal.3d 615, 643; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)  Other claims proffered by appellant's counsel either were not preserved properly in the juvenile court, or have been rendered moot by developments occurring after the orders that are the subject of this appeal were entered by the court in this case.  Finally, we consider one contention -- a substantial evidence claim -- on its merits.

     B.  Contentions lacking any claim of error as to appellant or support in the record

     It is axiomatic that we do not presume error on appeal.  (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846.)  It is the appellant's duty to provide a record affirmatively establishing error.  (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452.)  Moreover, challenged actions are assumed correct on matters about which the record is silent.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

     In arguments No. 5 and No. 15, counsel for appellant accuses counsel for the minors, their mother, and DHHS of violations of their ethical duties, without demonstrating how that claim of error affected appellant.  Moreover, no showing of prejudice is proffered. 

     Argument No. 3 alleges that appellant's constitutional rights were violated by the failure of DHHS to provide appellant with discovery.  The difficulty with this claim is appellant's counsel's failure to identify any document in the record that appellant did not receive.  Moreover, counsel for appellant has failed to establish appellant suffered prejudice from any violation. 

     In argument No. 4, counsel for appellant contends DHHS violated appellant's right to cross-examine social workers involved in the proceedings.  But the record reflects counsel for appellant did examine at length one of the principal social workers involved, and that the juvenile court indicated its willingness to have any social workers testify at appellant's request, if subpoenaed.  (Cf. In re Malinda S. (1990) 51 Cal.3d 368, 382-384.)  In any event, even assuming error occurred, counsel for appellant has made no showing of prejudice. 

     Arguments Nos. 6, 7, and 9 all pertain to lack of proper service of reports and legally insufficient reports.  But counsel for appellant does not aver how appellant was prejudiced by such alleged infirmities. 

     Near the conclusion of argument No. 7, counsel for appellant suggests O.B. was prejudiced in that, during the time she was detained, she developed mental health difficulties.  According to appellant's counsel, as a result of these difficulties, DHHS â€