Filed 6/14/22 Juan V. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Kimberly J. Nystrom-Geist, Judge.

The Folland Law Group and Brian N. Folland for Petitioner.

No appearance for Respondent.

Daniel C. Cederborg, County Counsel, and Carlie M. Flaugher, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Juan V. (father) and J.C. (mother) are the parents of now three-year-old J.V., the subject of this juvenile dependency case, and M.V. (the baby), who died in June 2021 at nine months of age while in their care. In March 2022, while the autopsy report was still pending, the juvenile court exercised its dependency jurisdiction over J.V., denied the parents reunification services and set a Welfare and Institutions Code section 366.26[1] hearing for June 29, 2022.

Father filed a petition for extraordinary writ (Cal. Rules of Court, rules 8.450–8.452),[2] seeking review of the juvenile court’s orders denying his request for placement and setting a section 366.26 hearing. He contends the court’s decision was based on inadmissible hearsay statements regarding the cause of the baby’s death and that his trial attorney’s failure to object was ineffective assistance of counsel. He seeks an extraordinary writ directing the juvenile court to place J.V. in his custody. We deny the petition.

PROCEDURAL AND FACTUAL SUMMARY

1. Baby’s Death Deemed Nonaccidental

On June 10, 2021, Fresno County Sheriff’s Office (FCSO) deputies responded to a report of a baby not breathing at mother’s home. She and father were separated and she lived with her adult son, Romeo, then 17-year-old son, E.G., then two-year-old J.V., and the baby. She worked from 9:30 p.m. to 6:00 a.m. and father stayed with the children while she worked. She left the children with father at approximately 9:45 p.m. the night before and returned at 6:30 a.m. She put a blanket over the baby, who slept in a crib next to her bed, and fell asleep. She awoke around 10:00 a.m. when her sons slammed the front door. When she checked on the baby, he was cold and not breathing. It was determined he had been deceased for some time. A social worker with the Fresno County Department of Social Services (department) took E.G. and J.V. into protective custody and placed them together in foster care.

On June 15, 2021, FCSO homicide Detectives Flores and Leon told social worker Amber Fithian that the coroner ruled the baby’s death to be a nonaccidental injury. Flores said the baby’s injuries were significant. He had a skull fracture from one ear to the other around the back of his head. The FCSO continued to investigate and did not recommend placing the children with a relative.

2. J.V. Detained

The department filed a dependency petition on J.V.’s behalf, alleging she came within the juvenile court’s dependency jurisdiction under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (f) (death of a child through parental abuse or neglect) and (j) (abuse of sibling).[3] The petition alleged one count under each subdivision as to each parent. The supporting facts under each subdivision were that the baby was found not breathing on June 10, 2021, he sustained a skull fracture to the back of his head that ran from his left ear to his right ear, that upon further investigation, the baby’s death was determined to be the result of nonaccidental trauma and that there was a substantial probability J.V. would suffer serious physical harm inflicted nonaccidentally if left in the care of either parent.

The department submitted its detention report on June 16, 2021, including the details of Fithian’s conversation with Flores and Leon and the coroner’s opinion the baby died by nonaccidental trauma.

The juvenile court ordered J.V. detained pursuant to the petition and found it would be detrimental for her to visit her parents. The court did not offer the parents reunification services and set a jurisdictional hearing for June 30, 2021.

3. Cause of Death As Reported by the Department

In its jurisdictional report submitted on June 28, 2021, the department stated the parents were not cooperative with the homicide investigators and had no explanation for the baby’s injuries. The coroner determined that the baby’s death was a homicide caused by blunt force trauma.

On June 29, 2021, detective Haslam told the social worker the baby’s death was being investigated as a homicide and he could not release any documentation. However, he could divulge that both parents were suspects in the baby’s death. He observed mother to be very controlling of father and described her as a “ ‘manipulative piece of work. ’ ” While the detectives were interviewing father outside mother’s home, she yelled at him not to talk to them and told the detectives to “ ‘Get the f*** out of here.’ ” Haslam stated that if neither parent had anything to do with the murder, they would be calling every day.

Haslam stated the baby had a bruise on the left side of his jaw line and to the left of his eye.· They asked father about the bruises and he said the baby hit his head on the tile. Haslam also said the baby had a skull fracture, which would require a fall from two stories. Mother said the baby fell backward on tile two days before; however, the doctor said the injury happened on the day of the incident.· When father got up, the baby was asleep and alive because the baby moved with a loud noise and father did not think anything of it. Mother returned home at 6:30 a.m. and realized the baby was dead at 10:30 a.m. Mother did not check the baby. Somewhere during those four hours, Haslam stated, “someone broke the baby’s head.” In their interviews with the parents, father was upset. Mother “was all over the place.” Her general behavior raised a red flag.

On June 30, 2021, the jurisdictional hearing was continued to August 2, 2021, and combined with the dispositional hearing.

On July 7, 2021, Flores told social worker Chai Lee he could not provide any reports, including the coroner’s report, because of the ongoing nature of the criminal investigation. He could only provide statements. According to the coroner, the baby died as the result of a skull fracture to the back of the head caused by blunt force trauma. The type of injury he sustained could only be by infliction, not a fall. Neither parent provided an explanation for the injury.

The department submitted its dispositional report on July 30, 2021, recommending the juvenile court deny the parents reunification services under section 361.5, subdivision (b)(4) and (6).[4] Neither parent could explain how the baby sustained a head injury. Mother was aware “they [were] saying [the baby’s] skull was cracked” but said the death certificate was pending. She knew something was wrong with the baby and took him to the doctor for weeks prior to his death. They said he had a virus. He also had nose bleeds and was getting bruises. She took him to the doctor on June 7 because he had a fever. He slept all night, not even waking up for a bottle. She said the baby went to daycare so that she could sleep more and fell off of a couch around the time he started getting sick. When she took him to the daycare the next day, he had a bruise near his ear and eye and the lady at the daycare told her that the bruise was getting worse. Another day, he was sitting on the floor. J.V. put a sticker on him and he fell on his head. Those were the only two falls that could have caused a head injury. Mother believed that whatever happened to the baby was unintentional as neither father nor her sons would hurt the baby.

Mother stated, however, that father was careless with the baby. Around the time he was sick, father allowed the baby to fall from the couch. The couch was approximately two feet in height. The baby sustained a bruise on the side of his head. The baby previously sustained a burn mark on his neck while in father’s care. Another time his whole ear was bruised and father told her that he had the baby in his arms and hit the baby on the rearview mirror of the truck.· Mother was keeping notes and taking pictures.

Mother disclosed she had “a lot of criminal history,” involving driving under the influence. Her most recent offense was in 2016 for which she served one year in prison beginning in 2018. She did not report prior child welfare history. On the day the baby died, she relapsed and drank the whole day.· She was not sure how much she drank, but remembered she slept the entire next day.· She has had an occasional drink since June 12, 2021. She engaged in domestic violence with E.G.’s father and had a terrible relationship with him. She completed a court-ordered 52‑week anger management program twice and served a jail sentence in 2009 and 2016 for domestic violence.

On August 2, 2021, the juvenile court set a contested combined hearing for October 25, 2021, and a status conference for September 20, 2021.

4. Parents Object to Hearsay Statements in Department’s Reports

Father’s attorney filed a statement of contested issues for the October 25 hearing, arguing the department failed to prove the allegations in the petition as to J.V. She planned to call the deputy coroner and Flores to testify. She objected to “any hearsay statements contained in [the department’s] reports without proper exception and/or foundation.”

Mother’s attorney also filed a statement of contested issues, challenging the department’s evidence to support the allegations and continued removal of her children. She intended to call the author of the coroner’s report to testify and objected to “any hearsay statements contained in [the department’s reports that did not fall within a] proper exception [or lacked] foundation.” On September 23, 2021, mother’s attorney amended the contested issues to include a challenge to the recommendation to deny her reunification services. She included the baby’s medical documentation for a well-baby check and emergency room visit in February 2021 for constipation and rectal pain. He was admitted and treated for a perianal abscess and released. He returned to the clinic in late March 2021 for diarrhea. The doctor released him with instructions to mother regarding feeding. He presented in late May 2021 with a cough, fever, congestion, and ear pain. He was diagnosed with a urinary tract infection and released with instructions. He returned on June 7, 2021, with a fever. He was treated and released.

5. Contested Combined Hearing Conducted on March 14, 2022 Without the Autopsy Report

On September 20, 2021, the matter was confirmed for trial and continued to January 19, 2022.

On December 28, 2021, mother’s attorney filed a motion to continue the hearing. She had a scheduling conflict and had been unable to obtain a copy of the coroner’s report. In addition, she was leaving the dependency court on December 31 and mother would need a new attorney.

The juvenile court granted the continuance and set the hearing for March 14, 2022.

On March 8, 2022, mother’s attorney filed a motion for a continuance. Dr. Michael Chambliss completed the autopsy but had yet to finalize the report. He anticipated the report would be available the second week of April 2022.

On March 14, 2022, the juvenile court heard argument regarding mother’s request for a continuance. Mother’s attorney explained that she subpoenaed a deputy coroner instead of the doctor who conducted the autopsy. She did not subpoena the doctor to testify at the hearing. She objected pursuant to section 355 on hearsay grounds to any of the coroner’s statements being admitted through Harlem and Flores. County counsel objected to the continuance stating it did not rely on the coroner’s report and there was sufficient evidence to proceed without it. County counsel also noted that the objection in the statement of contested issues was a blanket objection and lacked the specificity required by section 355.

The juvenile court denied mother’s request for a continuance, finding that it would not be in J.V.’s best interest. The court noted that almost a year had passed since the filing of the petition and the department was not relying on a coroner’s report, which mother’s attorney indicated did not exist. The court did not find that mistaking an administrative assistant for a doctor constituted good cause to continue the hearing. A simple phone call would have identified which doctor performed the autopsy. Counsel could have subpoenaed a doctor for the hearing. The court also noted that the information in the jurisdiction and disposition reports had been known for a long time.

The juvenile court also overruled the parents’ objections to the hearsay statements contained in the department’s report. The court found neither parent complied with section 355 by identifying the specific disputed hearsay evidence and providing the department a reasonable period prior to the contested hearing to meet the objection. Further, the department established an exception under section 355, subdivision (c)(1)(C) because the declarant is a peace officer.

Social worker Nancy Salazar testified the department had not received any reports from the police department and the matter was still under investigation. Asked whether she had any evidence that father caused the baby’s injury, she said it remained unknown because the department did not have reasonable information as to how he was injured.

Social worker Briana Placencia testified the parents had third-party visitation supervised by the care provider. Visitation was sporadic and reportedly went well.

E.G. testified the baby was sick around the beginning of June. He did not notice anything about the baby but knew he was sick because his parents took him to the emergency room. He was living with mother. She took good care of him and her home was safe. J.V. did not clearly state that she wanted to go home but he could tell she missed him and mother.

Father testified he took the baby to the hospital on June 7, 2021, between 5:00 and 6:00 p.m. Mother did not accompany him. He told the nurse the baby had a fever for the past two weeks, was not eating or sleeping well, had an infected throat and a lot of mucus in his nose. The baby had been seen twice by a doctor in those two weeks. The doctor at the emergency room told father the baby had an infection and released him. The baby’s condition did not improve and he died several days later.

The court took judicial notice of the detention report filed on June 16, 2021, and continued the matter to March 15, 2022, for its ruling.

6. The Juvenile Court’s Ruling

The juvenile court found the department established prima facie evidence under section 355, subdivision (a)(1) that J.V. was a minor child described under section 300, subdivisions (a) and (b)(1) based on the statements of the coroner to the detectives. The department met its burden that the coroner concluded that the baby’s death was nonaccidental and his skull was cracked from side to side while in his parents’ care. The burden of producing evidence shifted to the parents the obligation of raising an issue as to the actual cause of the injury or the fitness of the home. While the parents provided information that the baby had a throat infection and fever, that he had mucus and was not eating or sleeping well, they presented no evidence linking any of those conditions to the skull fracture. As to the fitness of the home, E.G. testified he felt safe and comfortable in the home but the level that he felt in the presence of mother and father was not the same as to whether or not J.V. was or was not safe in the home.

The juvenile court further found the department established J.V. was at substantial risk of suffering physical harm by the parents as alleged in counts a-1 and a-2 without regard to the presumption. It proved the presumed facts by more than the required preponderance of the evidence; it proved by clear and convincing evidence that the baby was found not breathing on June 10, 2021, sustained a skull fracture and his death was the result of nonaccidental trauma. The same evidence supported true findings as to the b-1 and b-2 counts that there was a substantial risk that J.V. would suffer physical harm or illness as a result of the parents’ failure to provide her adequate care, supervision, and protection. The court noted the presumption under section 355.1 did not apply to the section 300, subdivisions (f) and (j) counts. However, the court also found the (f) and (j) counts true.

The juvenile court ordered J.V. removed from parental custody and denied the parents reunification services under section 361.5, subdivision (b)(4) and (6), finding they failed to show services would be in J.V.’s best interest.

DISCUSSION

Father contends the juvenile court erred in not placing J.V. in his custody. He asserts the only evidence regarding the baby’s injuries was an inadmissible hearsay statement by Leon reported by the department. He also argues his trial attorney was ineffective for not objecting to the admission of the hearsay statement. We conclude the detective’s statement was properly admitted as an exception to the hearsay rule under section 355.1, and that father abandoned any challenge to the juvenile court’s assumption of dependency jurisdiction and forfeited the issue of placement by not requesting it.

1. The Statement of Leon Was Admissible Hearsay

In determining whether a minor is a person described under section 300, the juvenile court may consider any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the court’s jurisdiction. (§ 355, subd. (a).) “Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300.” (Ibid.)

A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction may be based. (§ 355, subd. (b).) “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 petitioner establishes one [of the enumerated hearsay exceptions.]” (§ 355, subd. (c)(1).) One such exception occurs when the declarant is a peace officer. (Id., subd. (c)(1)(C).)

Father objects to the statement made by Leon included in the department’s detention report that the baby died from nonaccidental trauma. However, father’s trial counsel did not object to the admission of Leon’s statement at the detention hearing. In her statement of contested issues for the combined hearing, father’s trial counsel did object generally to any hearsay statements contained in the department’s jurisdiction and disposition reports that lacked proper exception and/or foundation. However, the juvenile court found the objection lacked specificity and did not comply with section 355. More importantly, however, the court found that the detectives’ statements were admissible under the peace officer exception to the hearsay rule. Therefore, Leon’s statement, which was repeated in the jurisdictional report, was admitted, as was Haslam’s statement that the baby’s death was a homicide, and Flores’s statement that the skull fracture, which caused the baby’s death, could only be caused by infliction of blunt force trauma. Father does not argue otherwise.

Further, nothing prevented father’s trial attorney from calling any of the detectives as witnesses to challenge the accuracy of the statements they attributed to the coroner. However, father fails to show that counsel’s failure to do so was ineffective. There is no reason to believe the detectives’ testimony would have been any different than the statements they provided to the department. They had spoken to the coroner as part of their investigation into the baby’s death and their statements were consistent. In addition, they understood the information they provided the department would be used by the juvenile court in making decisions about father’s parental rights to J.V. Consequently, father was not prejudiced by counsel’s failure to call the detectives.

2. Father Abandoned Any Challenge to the Jurisdictional Findings

The juvenile court exercised its dependency jurisdiction over J.V. after finding she was a minor described in section 300, subdivisions (a), (b)(1), (f) and (j). The court found prima facie evidence to support the subdivisions (a) and (b)(1) counts pursuant to section 355.1, which provides in subdivision (a), “Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent … who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300.” Competent professional evidence in this case was the opinion of the coroner as communicated to the detectives and ultimately to the department. Once the department established prima facie evidence to support the subdivisions (a) and (b)(1) findings under section 355.1, the burden of producing evidence shifted to the parents to raise an issue as to the actual cause of the injury or the fitness of the home. (In re D.P. (2014) 225 Cal.App.4th 898, 903–904.) “ ‘The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.’ ” (Ibid.) The court found the parents failed to show that the symptoms the baby was exhibiting in the days preceding his death could be a cause of his death. The court further found there was sufficient evidence apart from the presumption to find not just by the required preponderance of the evidence but by clear and convincing evidence that J.V. was a minor described under subdivisions (a), (b)(1), (f) and (j) of section 300.

To the extent father attempts to overturn the juvenile court’s jurisdictional findings, he fails. He asserts there were no allegations as to him in the petition, which is not true. The department alleged one count as to him under each subdivision identified. Further, aside from asserting there was insufficient evidence to prove the counts, father fails to develop a legal argument. “ ‘ “ ‘Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.’ [Citations omitted.]” [Citation.] Nor is an appellate court required to consider alleged error where the appellant merely complains of it without pertinent argument.’ ” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119–1120.) We thus conclude father abandoned the issue of jurisdiction.

3. Father Forfeited Any Challenge to Placement by Not Raising It

Father contends the juvenile court erred in not placing J.V. in his custody under section 361.2. We conclude he forfeited the issue by not asking for placement and that, in any event, the statute does not apply to him.

Section 361.2, subdivision (a) provides “f a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) A parent’s failure to raise placement under section 361.2 in the dependency court forfeits the issue. ([i]In re John M. (2013) 217 Cal.App.4th 410, 419.)

Father did not raise the issue of placement at any of the scheduled and continued jurisdictional and dispositional hearings, thereby forfeiting the issue for review. Further, putting aside father’s forfeiture of placement under section 361.2, we find on the merits that he was not entitled to consideration under section 361.2 because he was an offending parent and arguably a custodial parent.[5] (In re John M., supra, 217 Cal.App.4th at p. 420.)

We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).

* Before Poochigian, Acting P. J., Detjen, J. and Meehan, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] Mother did not file a writ petition.

[3] E.G. was included as a subject of the petition. However, he turned 18 before the jurisdictional hearing was conducted. In September 2021, the department filed an amended petition removing all reference to him.

[4] Section 361.5, subdivision (b)(4) permits the denial of reunification services when the juvenile court finds by clear and convincing evidence the parent caused the death of another child through abuse or neglect. Subdivision (b)(6), as relevant here, permits the denial of services when the court finds by clear and convincing evidence the child was adjudicated a dependent pursuant to any subdivision of section 300 as a result of severe physical harm to a sibling inflicted by a parent and the court finds it would not benefit the child to pursue reunification services with the offending parent. (§ 361.5, subd. (b)(6)(A).)

[5] Although J.V. lived with mother, there was no custody order and father regularly stayed overnight in mother’s home to care for J.V.