Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. J113025, Becky Dugan, Judge.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Christina P., mother, appeals from disposition orders respecting J.P. and A.P., two of her three children, and awarding custody of those children to their nonoffending, noncustodial father, Ronald P. Mother contends there was insufficient evidence to support the determination that Ronald P. was a nonoffending parent because the Riverside County Department of Public Social Services (DPSS) conducted an inadequate investigation, and that there was evidence of “potential detriment” which required the court to order an investigation.
The child with whom mother was pregnant at the time of the incident giving rise to jurisdiction, B.B., is not a subject of this appeal. B.E.’s father, Luis B., is not involved in this appeal.
Because mother did not object in the trial court to the adequacy of the investigation of father’s circumstances and did not request further investigation, she has forfeited any claim of error in that respect. We also find there is substantial evidence to support the judgment. Therefore, we affirm.
1. Background
On September 19, 2006, mother went to a medical center because she thought she was going into labor. She was thirty-four weeks pregnant and tested positive for methamphetamine use. The father of the unborn child, Luis B., an habitual user of methamphetamine who had been in and out of prison, had previously beaten her while she was pregnant on more than one occasion. Because mother tested positive for drugs, because she reported incidents of domestic violence had occurred in the presence of her two older children, J.P. and A.P., and because Luis had threatened to kill mother and both children, the children were detained.
Mother informed the social worker that J.P. and A.P.’s father lived in South Carolina, but she did not know his precise location. She explained she had severed her relationship with father because he had beaten her severely during their relationship. She acknowledged she had been married to father and that he is the presumed father of J.P. and A.P.
A dependency petition was filed as to J.P. and A.P. based on neglect and failure to protect (Welf. & Inst. Code, § 300, subd. (b)), serious emotional damage (§ 300, subd. (c)), and lack of provision for support (§ 300, subd. (g)). The neglect allegation was based on mother’s use of methamphetamines, exposure of the children to domestic violence, failure to insure J.P.’s enrollment in school, father’s alleged history of domestic violence, and his failure to provide adequate food, shelter, medical treatment or protection. The allegation of emotional damage related to the children’s exposure to violence by and their fear of Luis P. The allegation relating to lack of provision for support was based on the fact father’s whereabouts were unknown.
All references are to the Welfare and Institutions Code unless otherwise indicated.
Following the birth of B.E. on November 1, 2006, an amended petition was filed, which essentially realleged the same allegations relating to J.P., A.P., and father, with some allegations renumbered, and some new allegations pertaining to Luis B., which are not relevant to this appeal. The infant, B.E., was also detained.
On January 8, 2007, an addendum to the jurisdiction/disposition report was filed, showing that father had contacted DPSS expressing his desire to assume custody of J.P. and A.P. Father denied the allegations of domestic violence made by mother, although he acknowledged on two occasions, when both mother and father had been drinking, he had slapped her face after she had struck him first. Although he had been arrested on these occasions, charges were dropped. He also denied the allegation of nonsupport, indicating he was paying support through a wage garnishment. However, because mother was transient, he was unable to send other items to the children for lack of an address. He admitted he had tried marijuana when he was a teenager, but had not used controlled substances since he was 18. The social worker noted he appeared motivated to have the children in his custody but there were areas of concern regarding his relationship to the children, the domestic violence incidents, and his admitted past use of alcohol or controlled substances.
In another addendum report filed on January 11, 2007, the social worker reported on a visit between father and his daughters. With the exception of a few minutes of hesitation by A.P., the children responded well to the father and he acted appropriately and attentively. Both children expressed a desire to return to their father, even though they admitted they would miss their mother. The social worker recommended that J.P. and A.P. be returned to their father as the nonoffending parent and that the dependency petition filed on their behalf be dismissed, with exit orders to the family court, awarding physical custody of the children to father.
On January 17, 2007, at the jurisdictional hearing, DPSS made a motion to strike the allegations pertaining to father, or, in the alternative, for the court to make a finding that those allegations were not true. It offered all the social worker’s reports and addenda into evidence, and reaffirmed the recommendation to award custody of the two children to father with exit orders. Although mother expressed her desire that the children not be moved out of state, there was no objection or opposition to DPSS’s motion respecting the petition, or to the reports offered into evidence.
After all parties were heard, the court found the allegations pertaining to father not true. The court ordered joint legal custody to both parents, and physical custody of J.P. and A.P. was awarded to the father as the nonoffending parent. (§ 361.2.) Mother was granted reasonable visitation rights, including frequent and liberal telephone and email contact, with monitored visitation to take place in the state of South Carolina. Mother appeals.
2. Discussion
Mother argues the court lacked substantial evidence that the father of J.P. and A.P. was a nonoffending father and that it erred in “removing” allegations against him from the petition. She also argues it was error to award him custody without juvenile court oversight. The minors join mother, taking a different position on appeal than was taken in the juvenile court. Because this change of position is based on postjudgment information not before us in this appeal, we decline to consider it. (In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Respondent argues the court’s findings and orders were supported by substantial evidence and that mother (and minors) forfeited any error in the court’s findings by failing to object. We agree.
We note that minors’ counsel indicates the children have remained with the maternal aunt, who, according to the record, wished to keep the children herself. The record shows she was opposed to the notion of father having custody, and attempted to sabotage his contacts with his children. The purportedly new information, which raises an inference the aunt has interfered with the transfer of the children, does not undermine the court’s findings that father was a nonoffending, noncustodial parent who was entitled to an award of legal custody. At best, it calls into question the wisdom of maintaining the children in the aunt’s care during the pendency of this matter. In any event, the proper place to litigate new developments is in the trial court.
(a) Standard of Review
We normally review a juvenile court’s decision to terminate dependency jurisdiction and to issue a custody (or “exit”) order pursuant to section 362.4 for abuse of discretion and will not disturb the order unless the court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Marilyn A. (2007) 148 Cal.App.4th 285, 300.) However, when a finding of fact is attacked on the ground there is not any substantial evidence to sustain it, the power of the appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted, which will support the conclusion of the trier of fact. (In re Nalani C. (1988) 199 Cal.App.3d 1017, 1024, quoting Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784.) All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the judgment, if possible. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) Where there is more than one inference which reasonably can be deduced from the facts, this court is without power to substitute its deductions for those of the trier of fact. (In re Albert T. (2006) 144 Cal.App.4th 207, 216.)
Because mother challenges certain findings made by the court, we review them with these standards in mind.
(b) Adequacy of the Investigation
Mother first argues that DPSS did not adequately investigate the concerns that had been mentioned about father’s background. However, at no time did mother raise this point in the trial court, either by way of an objection to the recommendations in the reports, or by way of a motion in the juvenile court to order further investigation. Further, while mother could have called the social worker to the stand to cross-examine her about the scope of the investigation undertaken and the bases for the recommendations, she did not do so. The social worker’s reports indicate a criminal history search (CLETS) was submitted as to all three parents, so we presume a background record check was conducted. (Evid. Code, § 664.) Mother has not rebutted the presumption. Further, she has forfeited any claim that the investigation was inadequate, and any claim that the court should have ordered further investigation, by failing to raise the issue in the trial court. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.)
Likewise, because the minors agreed with the recommendation to award custody to father they have forfeited any claim of error in the finding that the investigation was inadequate. At the hearing, minor’s counsel reported she had spoken with the children who knew who their father was and had a relationship with him. Counsel agreed father was a nonoffending father. Minors did not file a notice of appeal to challenge their placement with father and did not object to the adequacy of the investigation at the hearing.
While mother has forfeited some claims by failing to object, a parent retains the right to challenge the sufficiency of evidence to support a judgment notwithstanding the lack of objection. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 563-564.) For this reason, we must determine if the record demonstrates substantial evidence to support the findings that (a) father was a nonoffending, noncustodial parent, and (b) placement with father was proper.
(c) Nonoffending, Noncustodial Parent
In determining whether a parent is a nonoffending, noncustodial parent, the juvenile court is bound by the terms of section 361.2, subdivision (a), which states in pertinent part: “When 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.”
The statute thus defines “nonoffending, noncustodial” parent as one 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. Mother has maintained the position that she had been awarded custody of J.P. and A.P. upon the dissolution of her marriage to father. All of the reports submitted (without objection) show that father was living out of state, and not living with mother, that the children lived with mother, and that the family law orders barred him from taking the children out of state. No contrary evidence was presented to the juvenile court. He was thus a noncustodial parent.
As to whether he was a nonoffending father, we note that the allegations against father referred to a history of perpetrating domestic violence (§ 300, subd. (b)), leaving the children without provision for support (§ 300, subds. (b), (g)), and that his whereabouts were unknown. At the time of the hearing, however, father’s whereabouts were known, so that ground would have been dismissed in any case. The determination that a parent has failed to make provisions for support or that the parent’s whereabouts are unknown refer to the circumstances at the time of the hearing on the petition, rather than at the time of the filing of the petition. (In re Aaron S. (1991) 228 Cal.App.3d 202, 208; see also In re Katrina C. (1988) 201 Cal.App.3d 540, 546.)
With respect to the allegation that the father had a history of perpetrating domestic violence, there was contradictory evidence. In this respect, we must defer to the trial court’s determinations of credibility and may not substitute our judgment for that of the trial court’s, or reweigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) The allegations against father, even if true, related to long past events, not circumstances existing in the present. Further, mother’s own statements indicated father had no problem with substance abuse. Mother had an opportunity at the hearing to present evidence to impeach or contradict father’s statements but did not. The trial court was well within its authority to decide the issue of credibility and we will not disturb its finding. Substantial evidence establishes that Ronald was a nonoffending, noncustodial parent. (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271.)
(d) Whether Placement With Father Was “Potentially Detrimental”
Mother argues the award of custody to the father was erroneous because the court had evidence of “potential detriment.” The statutory provisions relating to nonoffending, noncustodial parents requires placement of a child with that 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); In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.) The statute does not authorized a court to deny placement for “potential” detriment.
The court must make the detriment finding by clear and convincing evidence (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426), and the finding may not be implied. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824-1825.) The detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm. (In re Luke M., supra, at p. 1425.) Previous acts of neglect, standing alone, do not establish a substantial risk of harm. (In re David M. (2005) 134 Cal.App.4th 822, 831-832.)
Mother has not pointed to any evidence “detriment;” rather, she argues that placement with father was “potentially detrimental.” We have found no cases authorizing interference with fundamental parenting rights on the ground that parental custody is “potentially detrimental.” Such a standard would inject speculation and subjectivity into the placement decision process. If we used the “potential detriment” standard to deprive nonoffending parents of custody, the provisions of the statute requiring placement of children with such parents would be a nullity, since virtually all parents present at least a “potential” of detriment.
Further, at the hearing, the only evidence of “potential detriment” posited by mother at the hearing was her own statement that the children did not want to live with father. This was contradicted by other evidence adduced at the hearing. The last addendum to the jurisdictional/dispositional report indicated the children wanted to live with their father. Thus, there is substantial evidence in the record to support the trial court’s findings and judgment.
3. Disposition
The judgment is affirmed.
We concur: Hollenhorst, Acting P. J. McKinster, J.