Filed 5/16/17 In re D.C. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

In re D.C., et al., Persons Coming Under the Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
K.S.,
Defendant and Appellant. A149379

(Contra Costa County
Super. Ct. Nos. J16-00345, J16-00346, J16-00347)


K.S. (Mother) appeals from jurisdictional and dispositional orders in a juvenile dependency case concerning her three children, D.C., L.C., and N.C. Mother asserts the jurisdictional findings are not supported by substantial evidence, and thus the orders must be reversed. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2014, Mother moved to California from Texas with her family after a domestic violence incident between Mother and the children’s father. The children were asleep when the fight occurred, but D.C. reported waking up in the morning to see blood in the kitchen and injuries to Mother’s face. D.C. said Mother had to go to the hospital to get stitches in her mouth, and he saw the police arrest his father.
In March 2016, the Contra Costa County Children & Family Services Bureau (Bureau) received a referral for an immediate response to investigate allegations of general neglect. According to the referral, Mother was living with her three children and their maternal grandmother (Grandmother) in a commercial property cluttered with old food and trash and lacking a shower or kitchen. Mother reportedly had no provisions for the children and the children had not been in school all year.
Law enforcement visited the family for a health and safety check and found the conditions to be unsafe and unsanitary. The police confirmed the family had been residing in a commercial property with no real bathroom or kitchen provisions. There were dirty diapers and garbage throughout the property. There were no beds; the children slept on couch cushions on the floor. When the police arrived, the four year old was on the floor, naked and crying. Twelve-year-old D.C. had not been in school all year. The police learned the family got its food from a church four miles away. The last time the children had eaten was dinner the night before, approximately 18 hours before the police arrived. A police officer described Mother as “uncooperative” and more interested in her own well-being than that of her children. The officer also noted there was concern Mother may be abusive to Grandmother.
A social worker from the Bureau walked through the property and observed piles of clothing and other belongings lining the walls of the main room. Clutter, debris, and belongings also blocked exits and surrounded a water heater, posing a fire hazard. The bathroom had only a sink and toilet, though was otherwise clean. The commercial kitchen area had no stove or oven. The floor was also covered in clothing and piles of belongings; the social worker had to step on clothing to see what food the family had. She saw canned goods, bread, and boxed food, and empty fast food containers and pizza boxes in the garbage. A cooler contained yogurt and milk two weeks past the marked expiration date and deli meat that appeared moldy.
The children were detained. When Grandmother was helping the social worker put the children in the car, she said Mother was physically and financially abusive to her, but said she stays to protect the children. Grandmother told the social worker Mother was out at all hours of the night and Grandmother was the primary caregiver.
During the ride to the detention center, the social worker interviewed D.C. and five-year-old L.C. The children told her they had been staying at the storefront for about a month, most of their meals came from a church, and they bathed in a large red plastic tub. D.C. reported he had not been in school all year because Mother was busy during the day. He confirmed Grandmother helped take care of the children.
Several days later, Grandmother called the Bureau to inquire about dropping off items for the children. Grandmother spoke with a social worker and told her Mother is “ ‘wacked out and on drugs.’ ” Grandmother asked about obtaining placement of the children if she moved back to Texas. She noted the oldest child was concerned because he sees how Mother treats Grandmother and was worried if Grandmother moved to Texas, Mother may begin treating him the same way. Grandmother said she wanted to return to Texas because Mother had been abusive to her.
The same day, the Bureau filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1), alleging Mother failed to protect the children and the children were at substantial risk of suffering serious physical harm or illness due to Mother’s substance abuse, history of domestic violence with the children’s father, and the deplorable, unsafe, and unsanitary conditions of the commercial property where they lived.
At the initial jurisdiction hearing, Mother was ordered to take a drug test and tested positive for THC. Six weeks later, Mother tested positive for THC on two separate dates. Mother failed to appear for another drug test several days later.
In preparation for the jurisdiction hearing, the Bureau submitted a social study and an addendum to the social study with additional information based on a social worker’s interview with D.C. The information supplied in the addendum was stated as an offer of proof. In the addendum, the social worker stated D.C. told her Mother kept marijuana in her purse and smoked it in front of him and his two siblings. Mother admitted to the social worker that she used marijuana, did not have a prescription for it, and kept it in her purse.
D.C. told the social worker about the domestic violence incident between Mother and his father in Texas. He then told her Mother hit Grandmother on numerous occasions, and he feared if Grandmother left, he and his siblings would be hit because Mother would no longer have Grandmother to hit. He said his brother, N.C., was autistic and Mother spanked N.C. the most. D.C. said Mother was “ ‘attackive’ ” and yelled a lot about everything and anything. When Mother yelled, D.C. said his sister, L.C., would become sad and gloomy, and he would go play a video game or play with the family dog. N.C. did not appear to understand Mother’s behavior. D.C. told the social worker Mother needed to learn to control her yelling and bad language toward Grandmother.
At the beginning of the jurisdiction hearing, the court announced it had received the original detention jurisdiction report (initial social study) and an addendum report (addendum). Mother’s counsel filed written hearsay objections to two portions of the initial social study, but did not object to the addendum or any statements therein. After hearing argument, the court overruled Mother’s objections to the initial social study, saying it would not rely on the statements as the sole basis for a jurisdictional finding.
After the conclusion of evidence and arguments, the court found the allegations of the section 300 petition true. The court found Mother incredible, noting her testimony was disjointed, incoherent, and self-serving. The court then stated it was amending the section 300 petition to conform to proof as to the domestic violence allegation, adding the fact Mother had physically assaulted Grandmother in the presence of the child. At the subsequent disposition hearing, Mother’s counsel made a general objection to the dispositional findings. The court removed the children from Mother’s custody under section 361, subdivision (c)(1), and ordered reunification services for Mother.
II. DISCUSSION
A. Evidentiary Issues
At the outset, we address two evidentiary issues raised by Mother. Mother contends the trial court improperly relied on statements in the initial social study and addendum in making its jurisdictional findings. Specifically, Mother asserts (1) the addendum was only an “offer of proof,” which is not a substitute for evidence unless the parties so stipulate, and (2) the trial court erred in refusing to strike or not rely on hearsay statements made by Grandmother in the initial social study.
1. Addendum
It is well established that hearsay in a social study prepared by a petitioning agency is admissible and competent evidence in a juvenile dependency matter. (§ 355, subd. (b); In re Malinda S. (1990) 51 Cal.3d 368, 376–379, superseded by statute as explained in In re M.B. (2011) 201 Cal.App.4th 1057, 1070; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1652.) Mother’s argument the addendum is not competent evidence because it is an unstipulated offer of proof fails because she did not object in the court below. (§ 355, subd. (c)(1) [if party objects to hearsay contained in social study, evidence is not sufficient by itself to support findings of fact on which jurisdiction is based]; see In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338–1339 [failure to raise an issue in juvenile court prevents party from presenting issue to appellate court]; cf. In re Christian P. (2012) 208 Cal.App.4th 437, 445, fn. 4 [mother did not forfeit challenge to hearsay evidence contained in documents from companion case because she clearly objected to its admission in juvenile court].) Mother contends she did not have an opportunity to object, but the court’s consideration of her written objections to the initial social study and allowance for oral argument at the hearing show otherwise.
Mother’s reliance on Espinoza v. Calva (2008) 169 Cal.App.4th 1393 and Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, for the principle an offer of proof is not evidence is unavailing. In those cases, offers of proof were made in lieu of direct testimony at contested hearings. (Espinoza v. Calva, at p. 1398; Denny H. v. Superior Court, at p. 1513.) Here, the statements were contained in an addendum to a social study made specifically admissible pursuant to section 355. Counsel’s failure to object forfeited any argument the court could not consider or rely on it.
2. Hearsay Objections
Section 355, subdivision (c) provides, in relevant part, “If a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based,” unless the petition satisfies one of several exceptions. (§ 355, subd. (c)(1), italics added.) Even though an objection is raised, hearsay statements may still support a jurisdiction finding if corroborated by other evidence. (In re B.D. (2007) 156 Cal.App.4th 975, 983–984.) “In this context, corroborating evidence is that which supports a logical and reasonable inference that the act described in the hearsay statement occurred.” (Id. at p. 984.) The standard is analogous to the rule in criminal law requiring independent proof of accomplice testimony. (Ibid.) Direct or circumstantial evidence is sufficient corroborative evidence if it tends to connect the accused with the act, “even though it is slight” and entitled to little consideration on its own. (Ibid.)
The trial court’s decision to overrule counsel’s hearsay objections and rely on Grandmother’s statements from the initial social study in support of its jurisdictional findings was appropriate because the statements were corroborated by other evidence in the record. As to Grandmother’s statement Mother was “ ‘wacked out and on drugs,’ ” the addendum contained D.C.’s comment Mother kept marijuana in her purse and smoked in front of her children. The addendum also noted Mother told the social worker she kept marijuana in her purse and admitted using it. Further, Mother tested positive for THC on three drug tests, and failed to appear for a fourth test. At the hearing, Mother denied she abused drugs, but the court found her testimony incredible. (See In re B.D., supra, 156 Cal.App.4th at p. 986 [issues of fact and credibility are for trial court].) Taken together, such evidence was sufficient to corroborate Grandmother’s statement.
As to Grandmother’s comment Mother was “out at all hours of the night and [Grandmother] is the primary caregiver,” the hearsay was likewise corroborated by other evidence in the record. When the police and social workers arrived at the property for the initial health and safety check, Grandmother was with the family at the property. The police and D.C. both confirmed Grandmother assisted with childcare. D.C. also told the social worker he had not been in school because Mother was busy during the day and he reported Mother has difficulty completing tasks. The social worker observed D.C. exhibited “parentified” behavior and was assisting the two other children and caring for two dogs during her interview. While such evidence does not prove the precise fact Mother was out at all hours of the night, considering all of the statements together, the court could draw a reasonable inference Mother was frequently absent and Grandmother acted as the primary caregiver. (In re B.D., supra, 156 Cal.App.4th at p. 984 [corroborating evidence need not go so far as to establish by itself, without the aid of hearsay testimony, that parent committed the alleged conduct].)
Likewise, Grandmother’s statements Mother was physically and financially abusive to her and D.C. was afraid Mother would treat him the same way she treated Grandmother were corroborated by D.C.’s statements to the same effect in the addendum. Further, the initial social study contained two additional statements regarding Mother’s abuse of Grandmother to which Mother’s counsel did not object—an observation by a police officer “[t]here is concern [Mother] may be abusive to [Grandmother]” and Grandmother’s own statement she wanted to return to Texas because Mother had been abusive to her.
Because there was additional evidence corroborating each of Grandmother’s hearsay statements, the trial court was not precluded from considering and relying on them in support of its jurisdictional findings.
B. Amendment to Conform to Proof
Next we address Mother’s claim the trial court denied her due process rights by sua sponte amending the section 300 petition to conform to proof after evidence and argument had concluded. The original section 300 petition alleged domestic violence between Mother and the children’s father. Although Mother’s counsel submitted on that allegation at trial, the court amended the section 300 petition to conform to proof, adding the allegation, “Mother has physically assaulted the maternal grandmother in the presence of the child.”
A juvenile court may amend a dependency petition to conform to proof at trial subject to the same rules as in general civil proceedings. (§ 348; Code. Civ. Proc., §§ 469, 470.) Amendments to conform to proof are favored and should not be denied unless the original pleading as drafted prior to the proposed amendment would mislead the other party to its prejudice. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042.) Here, Mother argues the court’s finding she physically assaulted Grandmother in front of the children was a material variance from the original pleading, and Mother was prejudiced by the denial of notice and an opportunity to be heard on such charges.
As with her contention regarding the addendum, however, Mother’s argument was forfeited when she failed to object to the amendment in the juvenile court. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 836 [when parent chooses not to contest amendment to conform to proof in juvenile court, parent waives right to assert issue on appeal].) Mother contends there was no opportunity to object below, but fails to explain why not. Mother was represented by counsel throughout trial and at the time the court announced its ruling, but did not object at the hearing, bring a motion after the hearing, or raise any objection to the amended petition at the subsequent disposition hearing. (See In re Daniel C. H., at p. 836 [father failed to object to amendment to conform to proof either at § 387 hearing or dispositional hearing].) Had she done so, the trial court would have had an opportunity to consider her argument the allegation was a material variance requiring further notice and an opportunity to be heard.
Consistent application of the forfeiture rule prevents parties from trifling with the courts. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) Were it otherwise, “[t]he party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (Ibid.) Moreover, requiring parties to assert alleged procedural errors in the juvenile court is consistent with the objective of efficiently processing dependency cases to promote permanence and stability for the children concerned. (In re David H. (2008) 165 Cal.App.4th 1626, 1640 [“Enforcing the forfeiture rule requires parties to raise such issues in the juvenile court where they can be promptly remedied without undue prejudice to the interests of any of the parties involved.”].) Mother has not shown she lacked an opportunity to object to the amendment to conform to proof in the juvenile court, and accordingly, she is barred from raising it in this court for the first time.
Even assuming Mother did not forfeit her due process claim by failing to object in the juvenile court, substantial evidence supported the court’s findings regarding the other allegations of the petition. “When reviewing a judgment based in part on excludable evidence, we first strip away the inadmissible evidence and ask whether enough admissible evidence remains to sustain the court’s finding.” (In re Daniel C. H., supra, 220 Cal.App.3d at p. 837.) As discussed below, sufficient evidence supported the juvenile court’s findings the children were at risk of physical harm from their unsafe and unsanitary living conditions and Mother’s marijuana use. Thus, even if the court should not have considered the evidence of Mother’s domestic abuse of Grandmother, Mother has not shown the judgment should be reversed based on the amendment to conform to proof.
C. Jurisdictional Findings
Mother challenges the sufficiency of the evidence supporting the juvenile court’s determination the children were dependent children within the meaning of section 300, subdivision (b). A child is within the jurisdiction of the juvenile court if he or she “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 . . . to adequately supervise or protect the child.” (§ 300, subd. (b)(1).)
We review sufficiency of the evidence to support jurisdictional findings for substantial evidence. (In re K.S. (2016) 244 Cal.App.4th 327, 337.) Substantial evidence is “reasonable, credible, and of solid value.” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We presume the correctness of the juvenile court decision and resolve all conflicts and draw all inferences in favor of the judgment. (In re K.S., at p. 337.)
1. Unsafe and Unsanitary Residence
Mother argues the evidence was insufficient to support a finding the children were at serious risk of physical harm from the condition of their residence. Specifically, Mother argues her poverty cannot be used against her to support jurisdiction. (See In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212 [“poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction”].) Mother also relies on In re Paul E. (1995) 39 Cal.App.4th 996, to argue a messy home, by itself, is insufficient to find children are at risk of harm. (Id. at p. 1005 [“chronic messiness, by itself and apart from any unsanitary conditions or resulting illness or accident, is just not clear and convincing evidence of a substantial risk of harm”].)
The evidence here, however, showed more than just poverty or messiness. There were piles of clothes, belongings, garbage, and dirty diapers throughout the commercial property. There were numerous safety issues including clutter blocking exits and belongings and debris surrounding a water heater, creating a fire hazard. When asked about clutter blocking the back exit so the door could not be opened, Mother conceded she had thrown belongings down the stairs toward the exit. There was spoiled food in the commercial cooler. Taken together, such evidence demonstrates Mother was not just poor or chronically messy, but failed to maintain a safe home for her children, placing them at risk of serious physical harm.
Further, unlike in In re Paul E., Mother did not appear to be an “ ‘ “attentive mother in other respects.” ’ ” (In re Paul E., supra, 39 Cal.App.4th at p. 1004.) When the police arrived, the four year old was naked and crying, and the children had not eaten in 18 hours. D.C. said Mother was “ ‘attackive,’ ” hit his autistic brother the most, and yelled all the time about everything. The police expressed concern Mother was more interested in herself than her children. The evidence also showed Mother was “ ‘wacked out and on drugs,’ ” Grandmother was the primary caregiver, and D.C. exhibited “parentified” behavior, supporting an inference Mother was neglectful of her children’s needs and failed to protect them. Construing all the facts in support of the judgment, substantial evidence supported the court’s finding the children were at serious risk of physical harm from the unsafe and unsanitary condition of their home and Mother’s inability to provide appropriate and adequate care.
2. Substance Abuse
The section 300 petition also alleged, “The mother has a substance abuse problem that impairs her ability to provide adequate care and supervision for the child.” Mother asserts the evidence was insufficient to show the children were at risk of physical harm due to her drug use. Specifically, Mother claims there was no evidence to support Grandmother’s hearsay statement she was “ ‘wacked out and on drugs,’ ” and no evidence was presented about the frequency or volume of drugs she consumed sufficient to show she had a substance abuse problem.
As discussed above, though Mother objected to Grandmother’s hearsay statements that Mother was “ ‘wacked out and on drugs’ ” and “out at all hours of the night and [Grandmother] is the primary caregiver,” there was sufficient corroborating evidence as to each of those statements. The evidence showed Mother kept marijuana in her purse, smoked it in front of the children, tested positive for THC the three times she submitted to a test, and missed a fourth drug test. Grandmother assisted with childcare and D.C. showed “parentified behavior.” D.C. told the social worker he had not attended school all year because Mother was busy. He also said Mother had trouble completing tasks. Taken together, the evidence was sufficient to support a finding Mother’s drug use impaired her ability to care for and protect her children. (In re Christian P., supra, 208 Cal.App.4th at pp. 449–450.)
Mother argues California courts have consistently held drug use alone is insufficient to support dependency jurisdiction, absent a showing of substantial risk of physical harm to the children. (See, e.g., In re Destiny S. (2012) 210 Cal.App.4th 999, 1003 [use of drugs alone is insufficient to bring child within jurisdiction of dependency court where there is no evidence of neglect posing risk to child]; In re Rebecca C. (2014) 228 Cal.App.4th 720, 727–728 [no evidence of substantial risk of physical harm where mother had substance abuse problem but home was clean, free of hazards and clear of drugs, child denied any physical or emotional abuse, and child was not afraid of mother]; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1345–1347 [evidence of mother’s marijuana use was insufficient to show substantial risk of detriment when, among other positive indicators, there was no concern about mother’s current living conditions, no evidence mother abused the children, and no evidence mother drank alcohol or smoked marijuana in front of the children].) If the evidence showed only that Mother smoked marijuana or had a substance abuse problem, the line of cases cited by Mother in support of her claims would be more persuasive. Here, however, there was evidence the children were living in unsafe and unsanitary conditions, and Grandmother and D.C., not Mother, were caring for the children. Moreover, unlike in some of the cases cited by Mother, the evidence showed Mother smoked marijuana in front of the children (without a prescription) and kept it in her purse. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 825–826 [mother’s open drug use in front of 11 year old and neglect of child created substantial risk child would abuse drugs]; cf. Jennifer A. v. Superior Court, at pp. 1345–1347 [no evidence mother smoked marijuana or drank in front of her children].) Based on the totality of the evidence, the court could reasonably conclude Mother’s drug use impaired her ability to provide regular and adequate care for her children and placed the children at substantial risk of serious physical harm.
3. Domestic Violence
Mother also asserts the evidence was insufficient to sustain a finding she placed the children at substantial risk of serious physical harm based on the domestic violence allegations. Our review of the record demonstrates substantial evidence supported the amended count.
As discussed above, at least four separate statements in the initial social study and addendum confirmed Mother was abusive to Grandmother. D.C. also described his Mother as “ ‘attackive,’ ” said she yelled a lot about “everything and anything,” and spanked his autistic brother the most. Both D.C. and Grandmother expressed the same concern that if Grandmother left for Texas, Mother would treat D.C. and his siblings the same way she treated Grandmother.
Mother relies on In re Jonathan B. (2015) 235 Cal.App.4th 115 and In re Giovanni F. (2010) 184 Cal.App.4th 594 to argue her failure to protect her children from their father’s violent behavior is insufficient to support jurisdiction here. Unlike both of those cases, the concern in this case was not just Mother’s past abuse by the children’s father, but Mother’s ongoing physical abuse of Grandmother, witnessed by D.C., which both Grandmother and D.C. feared would be turned on the children if Grandmother left. (In re Heather A. (1996) 52 Cal.App.4th 183, 194 [evidence of ongoing physical violence occurring in front of children was neglect causing risk of physical harm sufficient to support jurisdiction under § 300, subd. (b)]; cf. In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [evidence of violence between mother and father was insufficient to support jurisdiction where there was no evidence children witnessed the abuse, abuse was not ongoing, and the children stated they had no fear of their father].) Though Mother notes the children did not have bruises or marks of physical injury, the court was not required to wait until the children suffered physical harm before finding they were at risk. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Heather A., at pp. 192, 194; In re T.V. (2013) 217 Cal.App.4th 126, 135 [cycle of domestic violence between parents placed child at substantial risk of harm].) Drawing all inferences in support of the judgment, there was sufficient evidence the children were at substantial risk of physical harm from domestic violence.
D. Dispositional Order
Finally, Mother challenges the court’s disposition orders, arguing they must be reversed for the same reasons the jurisdiction findings are not supported by substantial evidence. Although Mother correctly notes the clear and convincing evidence standard applied to disposition orders is a higher burden than the preponderance of the evidence standard required for jurisdictional findings (In re Heather A., supra, 52 Cal.App.4th at p. 193), she does not advance any separate argument as to why the dispositional orders here are not supported by substantial evidence. In reviewing both jurisdictional and dispositional orders, our task on appeal requires us to review the record for substantial evidence, contradicted or uncontradicted, and construe the record in the light most favorable to the judgment. (Ibid.) Because substantial evidence supports each of the court’s findings, reversal of the dispositional orders is not compelled.
III. DISPOSITION
The jurisdictional and dispositional orders are affirmed.







_________________________
Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.