Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Stephen Marpet, Commissioner. Los Angeles County Super. Ct. No. CK59195
Los Angeles Dependency Lawyers, Inc., Law Office of Emma Castro, Ellen L. Bacon and Maryam Assadi for Petitioner Joselyn C.
Law Office of Timothy Martella, Eliot Lee Grossman and Brian Bitker for Petitioner Robert R.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Real Party in Interest.
KLEIN, P. J.
Petitioners Joselyn C. (mother) and Robert R. seek writ review of orders denying them family reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26 on May 26, 2010, as to D.R. We issued an order to show cause. (Cal. Rules of Court, rule 8.452(d).)
Unspecified statutory references are to the Welfare and Institutions Code.
Mother and Robert R. contend there is insufficient evidence to support the jurisdictional findings and the juvenile court improperly denied family reunification services. Robert R. further objects to the visitation order. We reject these contentions and deny the writ petitions.
FACTUAL AND PROCEDURAL SUMMARY
1. Mother’s dependency history.
Mother came to the attention of the Department of Children and Family Services (the Department) in May of 2005 when a dependency petition was filed with respect to mother’s five oldest children. As sustained, the petition alleged mother had a nine-year history of methamphetamine abuse and mother left her youngest child at the hospital without making plans for the child’s care. Mother failed to reunify with these children and her parental rights were terminated in April of 2008.
In November of 2008, the Department filed a dependency petition with respect to newborn Monica C. The petition alleged mother had a 12-year history of methamphetamine abuse, mother failed to reunify with Monica’s siblings and mother failed to participate in court-ordered substance abuse programs and random drug testing. Mother completed a drug treatment program in March of 2009. Monica was returned to mother in May of 2009 under a family maintenance plan. However, at the end of July 2009, the Department again detained Monica based on mother’s failure to assure Monica’s attendance at Regional Center appointments, failure to provide a stable home despite receiving services from four social agencies, and failure to keep the Department informed of mother’s address and telephone number.
2. The detention of D.R.
D.R. was born in November of 2009. The Department detained the child at the hospital. The Department noted there had been no change of circumstances since Monica was removed from mother’s care three and a half months earlier. Mother was under a court order to drug test but she missed four drug tests during her pregnancy, one in July, two in September and one in November. Mother advised hospital staff that Robert R. was D.’s father and that mother and Robert R. lived together. Mother and Robert R. provided numerous telephone numbers but none was in service. Mother continued to have difficulty obtaining stable housing. Mother told the social worker she lived on Dinard Avenue in Norwalk. However, hospital records indicated mother resided on Longworth Avenue in Norwalk. Mother later stated she and Robert R. would be residing on Amanda Avenue in Compton in a home they would be watching for Robert R.’s brother. Mother indicated Robert R. is unemployed and mother quit her job at Del Taco because she was asked to work the graveyard shift.
In the hospital room, Robert R. told social worker Argueta he was 99 percent sure he is D.’s biological father. The social worker explained D. was being detained because mother and Robert R. failed to protect Monica. Robert R. stated Monica was released to mother and he had “nothing to do with that.” Robert R. stated he would do what he needed to do to care for D., including “kick[ing mother] to the cur[b].” Robert R. indicated he did not provide the Department updated residence information because the gas was not on at the Amanda Avenue home and Robert R. knew the home would not pass inspection.
Robert R. stated he and mother had planned to go to Las Vegas for D.’s birth to avoid having the child detained. Robert R. claimed the Department did not “see the efforts” he and mother had made and stated “things are better than before....” Robert R. declined to hold the baby before leaving the hospital stating he would “just watch her through the window.” When the social worker advised Robert R. he would be included in the report as an alleged father, Robert R. said he did not wish to be involved in court proceedings.
A public health nurse who referred to Robert R. as mother’s “friend” reported mother and Robert R. were uncooperative at the hospital. Also, the nurses repeatedly showed mother how to hold and feed the baby but mother “just wouldn’t get it.”
Hospital social worker Dancy told social worker Argueta that Robert R. denied being D.’s father, denied being mother’s “significant other” and refused to sign D.’s birth certificate. Dancy stated mother and Robert R. were uncooperative and there had been “a bit of a drama with them; they appeared to be arguing a lot, throughout the day, he kept leaving the [hospital] room upset.... [T]hey don’t appear to have the best relationship.” Robert R. requested unsupervised contact with the infant. When he was informed he could only visit in the nursery, Robert R. became upset and stated he did not wish to visit the child.
Dancy provided copies of mother’s prenatal care records which showed mother appeared for six appointments (March 11 and 27, April 30, September 4 and 8 and November 11, 2009) and failed to appear for nine appointments (March 24, April 28, May 28, June 3, July 10, July 14, September 18 and 21, and October 21, 2009). Further, mother refused to participate in an aftercare program or reside in a sober living facility. The Department concluded mother had a history of being neglectful and had failed to demonstrate that she has benefited from the programs in which she had participated.
Robert R. refused to take parenting classes or participate in family preservation services when they were offered with respect to Monica. Robert R. also “expressed violent behavior during visitation” with Monica. The foster family agency staff reported Robert R. was intimidating, argumentative and threatening in their office. As a result, the Department prevented Robert R. from visiting Monica.
Due to Robert R.’s conflicting statements regarding his ability to care for D., D. was placed in a preadoptive foster home. The Department recommended monitored visitation for mother and Robert R.
3. The dependency petition.
Counts b-1 and j-1 alleged mother has a 13-year history of methamphetamine abuse which renders mother unable to provide regular care and D.’s siblings received permanent placement services due to mother’s illicit drug abuse. Counts b-2 and j-2 alleged that in July of 2009 mother repeatedly failed to take Monica to Regional Center and medical appointments. Count b-3 and j-3 alleged mother failed to provide a stable home for Monica despite receiving family preservation services designed to aid mother in securing stable housing. Counts b-4 and g-1 alleged mother and Robert R. are unable to provide appropriate housing in that their home lacks necessary utilities including gas.
4. Detention hearing.
At the detention hearing, in response to questions from the juvenile court, mother indicated Robert R. was D.’s father. Mother stated she was not married to Robert R. at the time of D.’s birth and his name is not on the child’s birth certificate. However, Robert R. has held himself out as the child’s father, no one else could be the father of the child, and Robert R. supported mother throughout the pregnancy.
The juvenile court found Robert R. was D.’s alleged father and, over mother and Robert R.’s objection, ordered Robert R. to appear for HLA testing. The juvenile court ordered the Department to provide reunification services to mother and Robert R., including weekly random drug testing. The juvenile court granted mother and Robert R. twice weekly monitored visits with D.
Mother’s counsel indicated mother was willing to move from the home and enter a residential rehabilitation program in order for D. to be placed with Robert R. The juvenile court granted the Department discretion to place D. with any appropriate relative. At the close of the hearing, counsel for D. requested an order preventing mother and Robert R. from visiting at the same time “based on... how they behaved in the hospital.” The juvenile court granted the request, “pending further orders.”
5. The jurisdiction/disposition report.
Mother told the social worker she has been participating in a drug program and has been sober for about one year. Mother indicated Monica is a Regional Center client because the child “has stiff arms and requires physical therapy.” Mother stated she missed Monica’s first therapy session because mother got lost. Mother rescheduled but arrived late and no one was there. Regarding housing, mother indicated the gas now was on at their home and they have a bassinet and a playpen.
The Department noted mother was attending domestic violence classes and drug treatment with random drug testing and that she had completed parenting and anger management classes. Mother had attended 43 of 52 sessions of the chemical dependency program and 28 of 52 sessions of the domestic violence program.
6. Termination of reunification services with respect to Monica.
On December 14, 2009, the juvenile court received into evidence the social reports, evidence of mother’s compliance with the case plan and the HLA test results indicating Robert R. is the biological father of D. As to Monica, the juvenile court terminated family reunification services. As to D., the juvenile court continued the matter for a contested hearing.
7. Social reports filed in advance of the jurisdictional hearing.
The social worker visited mother and Robert R. at the Athena Avenue address on December 3, 2009. The home had a posted real estate sign in the front yard and no furniture. On December 29, 2009, the social worker again visited the Athena Avenue address. The door was open and mother and Robert R. were in the home but it appeared empty and the social worker was not allowed to enter. Mother reported they were moving in but Robert R. said they were moving out. Robert R. continued to deny paternity and reported he did not want the social worker to visit him. Robert R. indicated he is not going to complete any drug programs or participate in random testing. Robert R. indicated “it had not grown within him” to visit D.
On January 11, 2010, mother and Robert R. reported they were living on Longworth Avenue in Norwalk. The social worker had not yet visited the home.
On January 14, 2010, Robert R. came to the Department office and stated he wanted to “step it up” and reunify with D. However, Robert R. continued to refuse to participate in programs, drug test or visit the child stating, “If I have to have supervised visits, I would rather not see her at all.”
Mother missed no drug tests in December or January and her results have been negative.
8. Jurisdictional hearing; disposition.
At the contested hearing on January 29, 2010, Robert R. testified he visited D. for “a few minutes” and kissed the child after mother’s visit the previous two weeks. Robert R. has not attended any programs but has been looking into affordable classes near his residence. Robert R. drug tested twice in the past two weeks and indicated he would attend a drug program if it was required to get custody of D. Robert R. admitted his housing was not stable but asserted he and mother had always had a place to stay. Robert R. explained there was no gas at the Amanda Avenue home for one or two days and they had been living on Longworth Avenue for “going on a month.” Robert R. denied he refused to hold D. at the hospital or that he denied paternity after the HLA test results were known. Robert R. testified he was “pretty sure” he was D.’s father and indicated he was willing to sign a declaration of paternity.
Mother testified that, since the last court hearing, mother had learned to be “more consistent with the social worker....” Also, mother has continued to attend her programs, she has been attending Narcotics Anonymous meetings twice a week and has maintained contact with her NA sponsor. Mother attends general counseling sessions three times a week, she has drug tested every week, has missed no tests and has not tested positive. Mother intends to stay at the Longworth Avenue address. She is now working and her finances have improved. Mother has learned through her programs to live without drugs and to avoid domestic violence. After Monica was removed from mother’s care, mother learned “to put my child’s every needs before anything else.” Mother asserted she is a better person and is capable of caring for D.
When mother’s counsel argued there was insufficient evidence to sustain the petition and mother currently had stable housing, the juvenile court responded this was mother’s “fourth house in two months.” Further, risk to a child arises when “the parents are moving around or they are in a location where the house doesn’t have heating, doesn’t have gas, electricity, water, power. Those are the kinds of issues that are the problem.”
Regarding the denial of family reunification services, the juvenile court noted Monica was returned to mother after mother completed a drug program. However, within weeks Monica was redetained because mother failed to take the child to medical appointments and the child “was living in a hovel.” After Monica was redetained, mother missed drug tests in September, October and November. The juvenile court indicated “there is just no way I can [grant mother family reunification services]... in this case.” The juvenile court denied mother family reunification services under section 361.5, subdivision (b)(10), (11) and (13).
Regarding Robert R., the juvenile court found he had not stepped forward and he had only visited the child in the last two weeks and even then only “to stick his head in [at the end of mother’s visits] to see his child then leave. That is it.” The juvenile court noted Robert R. was informed on December 14, 2009 that he is D.’s biological father. However, Robert R. told the social worker two weeks later he still was not sure and he was not going to do any programs. The juvenile court noted Robert R. has continued to take that position and has done nothing other than drug test twice even though the juvenile court told Robert R. what was needed two and a half months ago. When counsel indicated Robert R. would sign a declaration of paternity, the juvenile court noted that, at the present time, Robert R. was only an alleged father and, as such, was not entitled to family reunification services. The juvenile court denied Robert R. family reunification services under section 361.5, subdivision (a).
The juvenile court set a permanency planning hearing on May 26, 2010. The juvenile court ordered the visits to remain monitored and continued in effect the order that mother and Robert R. not visit D. at the same time.
CONTENTIONS
Mother and Robert R. contend the jurisdictional findings are not supported by substantial evidence. Mother further contends the evidence does not support the denial of reunification services and the juvenile court erroneously denied family reunification services without making the findings required by section 361, subdivision (c)(1). Robert R. contends he is entitled to presumed parent status and family reunification services. He further contends the order precluding mother and Robert R. from visiting at the same time constitutes an abuse of discretion.
DISCUSSION
1. The evidence supports the juvenile court’s exercise of dependency jurisdiction.
a. General principles.
At a jurisdictional hearing, the juvenile court determines whether the child falls within any of the categories specified in section 300. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.) The jurisdictional finding must be supported by a preponderance of the evidence. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; § 355, subd. (a).) In reviewing a juvenile court’s jurisdictional finding, we apply the substantial evidence test. (In re David M. (2005) 134 Cal.App.4th 822, 828; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.)
A single jurisdictional finding is sufficient to sustain the juvenile court’s exercise of jurisdiction. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.) Thus, if one jurisdictional finding is supported by substantial evidence, the sufficiency of the evidence supporting other jurisdictional findings becomes moot. (In re Alexis E., supra, at p. 451; In re Shelley J. (1998) 68 Cal.App.4th 322, 330; Randi R. v. Superior Court, supra, at p. 72.)
Further, “a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citation.]” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; In re P.A. (2007) 155 Cal.App.4th 1197, 1212; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.)
b. Mother’s assertions.
Mother contends insufficient evidence was presented to establish that mother’s history of drug abuse presented a current risk of harm to D. Mother asserts there was no evidence she was using drugs at the time of the petition or at the time of the adjudication. Further, neither Monica nor D. had a positive toxicological screen at birth and mother told the social worker and testified she had not used drugs in a year. After D. was detained, mother drug tested on a weekly basis with negative results. Further, mother completed a drug treatment program in March of 2009 and mother had nearly completed another 52 session drug treatment program.
Mother argues a history of drug abuse does not constitute a showing the parent currently is unable to care for the child or that the child is at substantial risk of serious harm. (In re David M., supra, 134 Cal.App.4th at p. 830.) Mother contends the recent case of In re J.K. (2009) 174 Cal.App.4th 1426, which concluded one incident of abuse was sufficient to assert jurisdiction under section 300, subdivisions (a), (b) and (d), does not excuse the Department from demonstrating a current risk of harm to D. Mother asserts there was substantial evidence of current risk to the child in In re J.K. Additionally, In re J.N. (2010) 181 Cal.App.4th 1010 disagreed with In re J.K. and reasoned the rule announced there would lead to absurd results where the evidence indicates no current risk to a child. Mother concludes jurisdiction cannot be asserted over D. merely because mother’s home lacked gas for a few days.
c. The evidence supports the finding of dependency jurisdiction.
Although mother testified she had been sober for a year, she missed numerous drug tests and did not cooperate with the Department while she was pregnant with D. Given mother’s 13-year history of drug abuse, mother’s failure to drug test while she was pregnant with D. provided an adequate basis upon which the juvenile court could conclude mother had unresolved substance abuse issues that placed D. at current risk of harm in mother’s care. In addition, mother missed numerous prenatal care appointments and failed to obtain any prenatal care for D. in the months of May, June, July and August. Mother also had an unstable housing situation despite receiving services from several agencies and she failed to maintain contact with the Department even though she had an open case with respect to Monica. Additionally, mother refused to participate in an aftercare program or reside in a sober living facility.
Based on this evidence, the juvenile court properly could conclude D. came within its jurisdiction under section 300, subdivision (b) and that the child would be subjected to current risk of harm in mother’s care. We therefore need not consider in this case whether dependency jurisdiction would be appropriate absent a current risk of harm.
d. Sufficiency of the evidence with respect to Robert R.
Robert R. contends the only allegation against him, failure to provide adequate housing, was not supported by the evidence. Thus, the allegation against him should have been dismissed and he should have been found to be a non-offending parent.
This issue is moot is light of the conclusion the evidence was sufficient to support the allegation in count b-1. As noted above, “[A] jurisdictional finding good against one parent is good against both.” (In re Alysha S., supra, 51 Cal.App.4th at p. 397.) Consequently, no separate finding of jurisdiction as to Robert R. is required.
Moreover, assuming for the sake of discussion Robert R. is “non-offending, ” as discussed below, he failed to establish entitlement to presumed father status and thus is not entitled to custody of D. or family reunification services in any event.
2. The denial of family reunification services as to mother under section 361.5, subdivision (b)(10) and (11).
a. Relevant principles.
Generally, the juvenile court is required to order reunification services when children are removed from parental custody. However, if a parent has previously failed to reunify with a child’s sibling or has previously had parental rights terminated, reunification services may be denied under section 361.5, subdivision (b)(10) and (11). In order to deny services under section 361.5, subdivision (b)(10) and (11), the juvenile court must find by clear and convincing evidence “that, [the] parent... has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling... from that parent.”
In enacting these provisions, “ ‘the Legislature has made the decision that in some cases, the likelihood of reunification is so slim that scarce resources should not be expended on such cases.’ [Citation.]” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) The statute “provide[s] a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings; it was not [enacted] to create further delay so as to allow a parent, who up to that point has failed to address his or her problems, another opportunity to do so.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.)
We review a juvenile court’s denial of family reunification services for substantial evidence. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.)
b. Mother’s arguments.
Mother contends the evidence does not support the finding she failed to make reasonable efforts to treat the problems that led to the removal of D.’s siblings. Mother reiterates her testimony at the contested hearing that she tested negative for drugs, she attended substance abuse programs and she attended NA meetings twice a week and communicated regularly with her sponsor. Mother claims these efforts on her part prevented the juvenile court from concluding mother had not made reasonable efforts to treat her substance abuse problem.
Mother further contends there was insufficient evidence mother had not made reasonable efforts to address her transient lifestyle. At the time of the contested hearing, mother and Robert R. had a permanent home and mother was employed. Mother argues this evidence established that mother had made reasonable efforts to resolve the housing issue. Mother concludes the juvenile court erroneously denied family reunification services under section 361.5, subdivision (b)(10) and (11).
c. Substantial evidence supports the juvenile court’s finding.
Mother’s involvement with the Department commenced in May of 2005 when mother’s five oldest children were removed from mother’s care based on mother’s failure to provide and mother’s nine-year history of substance abuse. Mother failed to reunify with these children and mother’s parental rights were terminated with respect to these children in April of 2008. In November of 2008, Monica was detained at birth based on mother’s history of substance abuse. Monica was returned to mother after mother completed a drug treatment program. However, six weeks after Monica was returned to mother, Monica was redetained in July of 2009 based on mother’s failure to ensure Monica’s attendance at Regional Center and medical appointments, failure to provide stable housing and failure to keep the Department apprised of her whereabouts. While mother had an open case with the Department with respect to Monica, and while mother was pregnant with D., mother missed four drug tests. Additionally, notwithstanding mother’s long history of drug abuse, mother refused to attend an aftercare program or reside in a sober living program.
Based on this evidence, the juvenile court reasonably could conclude mother had not made a reasonable effort to treat the problems that led to removal of D.’s siblings. The fact mother provided negative drug tests for two months before the jurisdictional hearing does not establish she had taken appropriate steps to address her substance abuse issues.
We therefore conclude substantial evidence supported the juvenile court’s denial of family reunification services under section 361.5 subdivision (b)(10) and (b)(11). Based thereon, we need not consider whether the juvenile court also properly denied family reunification services under section 361.5, subdivision (b)(13).
d. The timing of the juvenile court’s findings under section 361, subdivision (c)(1) does not require reversal.
Mother contends the juvenile court erred as a matter of law in failing to make the findings required by section 361, subdivision (c)(1) before denying family reification services. Section 361, subdivision (c)(1) requires the juvenile court to find, by clear and convincing evidence, a substantial danger to the physical health, safety, protection or physical and emotional well-being of the child and no reasonable means to protect a child absent removal. (§ 361, subd. (c)(1).) Mother concedes the juvenile court made the required findings after it denied family reunification services but claims the juvenile court failed to state the facts upon which removal was based. Mother argues this court cannot infer the requisite findings were made because section 361, subdivision (d) requires the juvenile court to state the facts on which the decision to remove a child is based. Mother argues this language is mandatory and requires remand for a new dispositional hearing conducted in conformity with the statute.
This claim is meritless. At the close of the contested hearing, the juvenile court expressed concern for D.’s safety based on the transient lifestyle exhibited by mother and Robert R. The juvenile court noted mother had been given a chance when Monica was returned to her but mother demonstrated her inability to care for Monica and missed several drug tests after Monica was redetained and while mother was pregnant with D. The juvenile court stated it was required to consider all of mother’s sustained petitions in determining what was best for D. The juvenile court then denied mother and Robert R. family reunification services and ordered D. suitably placed. The juvenile court found by clear and convincing evidence there was substantial danger to D.’s well being and that reasonable efforts had been made to prevent the removal.
Although the juvenile court denied family reunification services before it made the findings required by section 361, subdivision (c)(1), remand for a new hearing is not necessary. Neither mother nor Robert R. can demonstrate prejudice and, absent any possibility of a more favorable result on remand, the error must be seen harmless beyond a reasonable doubt.
3. Substantial evidence supports the juvenile court’s finding Robert R. was merely an alleged father.
a. Relevant principles.
“In dependency proceedings, ‘fathers’ are divided into four categories – natural [or biological], presumed, alleged, and de facto. [Citation.]” (In re A.A. (2003)114 Cal.App.4th 771, 779.) Only a presumed father is entitled to custody or a reunification plan. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120; In re Paul H. (2003) 111 Cal.App.4th 753, 760; In re O.S. (2002) 102 Cal.App.4th 1402, 1406.) A man who claims entitlement to presumed father status has the burden of establishing by a preponderance of the evidence the facts supporting his entitlement. (In re T.R. (2005) 132 Cal.App.4th 1202, 1210.)
b. Robert R.’s contention.
Robert R. asserts he is entitled to a presumption of paternity under Family Code section 7611, subdivision (d), which provides a man is presumed to be the natural father of a child if “[h]e receives the child into his home and openly holds out the child as his natural child.” Robert R. contends the requirement that he receive D. into his home must be excused because he was prevented from receiving the child by the Department and he promptly came forward and demonstrated a full commitment to his parental responsibilities. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849; In re Jerry P. (2002) 95 Cal.App.4th 793, 816-817.)
Robert R. notes he submitted to drug testing even though he had no drug history, he held himself out as D.’s father and told the social worker, his attorney and the juvenile court he was her father. On November 16, 2009 he told the social worker he was 99 percent sure he is D.’s father and that he wanted to reunify with the child. Mother told the juvenile court at the detention hearing that Robert R. has held himself out as D.’s father and supported mother throughout her pregnancy. Robert R. asserts he told the juvenile court at the detention hearing he is D.’s father. Also, Robert R.’s attorney advised the juvenile court at the detention hearing that Robert R. “indicated to me that he believes he is the father.”
Robert R. concedes the reporter’s transcript of the detention hearing indicates mother answered the juvenile court’s questions as to whether Robert R. has always held himself out as D.’s father and if there is anyone else who could be the father. Robert R. argues it is highly unlikely mother answered these questions. Robert R. asserts other portions of the transcript provide circumstantial evidence it was Robert R. who answered the questions. He notes that, later in the hearing, mother’s counsel argued the “double hearsay contained in the detention report... hardly matches up against [Robert R.] standing here before you and telling you that he wants to be a father....”
Robert R. points out that on January 14, 2010, he told the social worker he wanted to reunify with D. and was going to “step it up.” Robert R. testified at the contested hearing he never denied paternity of D., he was willing to participate in programs to regain custody of her and he was willing to sign a declaration of paternity.
Robert R. observes that, during the contested hearing, the juvenile court incorrectly recalled Robert R. requested paternity testing at the detention hearing. Robert R. claims that, at the detention hearing, he insisted he was D.’s father and objected to the testing order. Robert R. concludes the juvenile court erroneously denied him presumed father status and, as result of that finding, denied him reunification services.
c. The evidence supports the juvenile court’s finding.
The record amply supports the juvenile court’s finding Robert R. did not qualify as a presumed father. Even if we assume Robert R. never denied paternity of D., he failed to come forward and participate in her life. The juvenile court granted Robert R. twice weekly monitored visitation. However, Robert R. did not visit D. at all except for a few minutes on two occasions, both of which occurred during the two-week period that preceded the contested hearing. Robert R. did not hold D. out as his child at the hospital. He denied being D.’s biological father and refused to sign the birth certificate. Hospital social worker Dancy referred to Robert R. as mother’s “friend” and reported Robert R. denied being mother’s “significant other.” Even after Robert R. was advised of the HLA test results, he testified at the hearing he was only “pretty sure” he was D.’s father.
The juvenile court properly could consider Robert R.’s actions as more persuasive than his words. Based on the evidence before the juvenile court, the juvenile court reasonably could conclude Robert R. was not a presumed father. As such, Robert R. was not entitled to family reunification services or custody of D.
4. Robert R. forfeited any challenge to the visitation order by failing to raise it in the juvenile court.
Robert R. contends the order precluding mother and Robert R. from visiting at the same time is not supported by substantial evidence and constitutes an abuse of discretion.
The juvenile court has the power to regulate visitation between parents and children who are determined to be dependent. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) In balancing the parent’s interest in visitation with the child’s best interests the juvenile court may impose any conditions or requirements necessary “in light of the particular circumstances of the case before it.” (Id. at p. 757.)
Here, Robert R. did not object to the visitation order in the juvenile court. Ordinarily a reviewing court will not consider a challenge to a ruling if an objection could have been made, but was not made, in the juvenile court. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [“A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do”]; see also In re Alanna A. (2005) 135 Cal.App.4th 555, 562 [a party may not raise a fact-driven issue for the first time on appeal].) Nothing in the record presented suggests we should exercise our discretion to excuse Robert R.’s forfeiture.
Moreover, the record contains evidence that suggests the juvenile court properly imposed this modest restriction on Robert R.’s visitation. The Department reported Robert R.’s visitation with Monica was terminated because of his threatening behavior toward foster family agency staff and an incidence of domestic violence at a visit. Further, hospital staff reported mother and Robert R. argued throughout the day in mother’s hospital room and that Robert R. frequently left the room in anger.
DISPOSITION
The petitions are denied. Our decision is final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)
We concur: KITCHING, J.ALDRICH, J.