Opinion
E072938
03-03-2020
In re R.R., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. R.R., Defendant and Appellant.
Alessandro L. Casati, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Anna M. Marchand and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1800789) OPINION APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge. Affirmed. Alessandro L. Casati, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Anna M. Marchand and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and Appellant, R.R., Sr. (Father), appeals from the juvenile court's jurisdiction and disposition orders declaring his son, R.R., Jr. (R.J.) a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b)(1), and removing R.J. from Father's custody and placing him with D.R. (Mother). Father challenges the sufficiency of the evidence supporting the court's jurisdiction findings and disposition orders. Father also argues the juvenile court erred in not ruling on his hearsay and other evidentiary objections. Father further asserts that the court failed to rule on his ex parte application for discovery sanctions and did not consider his trial brief.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Mother is not a party to this appeal.
We conclude there was sufficient evidence to support the juvenile court's jurisdiction and disposition orders, and reject Father's other contentions. We therefore affirm the judgment.
II.
FACTS AND PROCEDURAL BACKGROUND
R.J. (born in 2010) is the sole biological son of Mother and Father. Mother and Father divorced in 2017, and shared 50/50 legal and physical custody of R.J. Father married M.R. (Stepmother) in September 2018. In December 2018, R.J. was living with Father, Stepmother, and Stepmother's two sons, C.S. (16 years old) and A.S. (14 years old).
On December 5, 2018, DPSS received a referral of physical abuse and general neglect (December 5, 2018 incident). Father and Stepmother reportedly had an altercation, during which C.S. was hit in the eye with a deodorant stick, causing a laceration. Father and Stepmother were extremely intoxicated. Stepmother suffered a swollen lip and ear laceration, and Father had scratches on his arms. After the police reported to the scene, C.S. and Stepmother were transported to the hospital for treatment. Father was arrested and held overnight for public intoxication, and Father and Stepmother were cited for child endangerment.
A. C.S.'s Interview
On December 13, 2018, DPSS interviewed R.J. and his stepbrothers, C.S. and A.S. C.S. said he was hesitant to say anything negative about Stepmother because he feared Father would make sure Stepmother would never talk to C.S. again. C.S. stated, "'It's not right what's going on, it needs to stop.'" C.S. said that when Father and Stepmother were sober, he enjoyed living with them. However, fighting between Father and Stepmother had escalated from verbal altercations two to three times a month, to weekly altercations, resulting in yelling, throwing things, and injuries to Stepmother.
C.S. reported that Father and Stepmother drank late at night and on the weekends. Recently, they had been going to a bar two to four times a week and would return home intoxicated. Father and Stepmother also smoked marijuana daily, mostly at night. C.S. said Stepmother was often drunk to the point she slurred her words, and was incomprehensible and emotional. Father also yelled and broke things. C.S. stated there was "'a ton of yelling and banging and [Father] breaking things.'" C.S., A.S., and R.J. coped by playing video games in their bedrooms with their doors shut.
C.S. further reported that during the early morning of December 5, 2018, Father and Stepmother returned home from the bar and continued drinking in their room. C.S. awoke when he heard Stepmother yelling "her drunk slur and [Father] yelling back.'" A.S. and R.J. were yelling "'Stop it.'" C.S. heard Stepmother leave her room. A.S. was with Stepmother as she continued "'yelling a slurring rant.'" C.S. yelled "'shut up'" and A.S. tackled C.S. for being disrespectful to Stepmother. Father came out of his room, grabbed A.S. by the shoulder, and threw him "'across the room.'" Father then got on top of C.S. and was yelling. R.J. was crying. C.S. "'was wiggling trying to get [Father] off'" of him. Father did not hurt C.S. much because Father was unable to stay focused. C.S. freed himself from Father. Father tripped while trying to continue attacking C.S., as Stepmother threw a stick of deodorant at Father. The deodorant stick hit C.S. in the eye. C.S. and A.S. ran out of the house and went across the street to call the police. C.S. said the family blamed him for everything, and he was being punished for wanting the "'chaos to stop.'"
B. A.S.'s Interview
During A.S.'s interview, A.S. told DPSS that he was not able to talk about the December 5, 2018 incident unless Stepmother was present. However, he was willing to talk about his living environment. Without being asked, A.S. said Stepmother and Father "'do not drink'" anymore and "'do not smoke (marijuana) in front of us.'" A.S. noted C.S. had the most issues in their home because he was always in a bad mood and disrespected Stepmother by saying, "'Okay, whatever.'" A.S. reported that, even after the police came, Stepmother and Father went to the bar two to four times a week. A.S. watched R.J. when they were gone. A.S. said sometimes R.J. would cry because he was afraid, and A.S. would hug him.
C. R.J.'s Interview
DPSS interviewed R.J. at his school. R.J. said Stepmother and Father had told him not to talk about what had happened unless Father was present. R.J. said he had seen the police twice before the December 5, 2018 incident, including one time six months earlier. R.J. stated that "'there is no fighting now'" but he was sad because C.S. no longer lived at R.J.'s home. Stepmother and Father told R.J. "'[C.S.] is no longer welcome because he's making up stories that they beat him up.'" R.J. explained that was not what happened. C.S. was accidentally injured when hit with a deodorant stick.
R.J. further reported that Stepmother and Father currently went out several times a week and left R.J. with A.S. R.J. played video games until he went to sleep. He was awoken by the "'you know'" and would try to stop it by yelling out from his room, "'Stop it.'" It scared him when Stepmother and Father were fighting. He would be comforted by C.S. or A.S. R.J. further stated, "'I was really scared this time because I thought I would never see [C.S.] or [A.S.] again . . . because I thought they would be divorced.'" Although they did not get divorced, R.J. said he was "'really sad'" that he no longer saw C.S.
D. Maternal Grandfather's Interview
DPSS next spoke with maternal grandfather (MGF), who said he picked up R.J. the night of the December 5, 2018 incident. A.S. told MGF that Father had thrown him against the wall. MGF noticed blood on the walls and floor. MGF reported that his daughter (Mother) had just completed a dual diagnosis program, Clean Path, but MGF was concerned because she was living in a "sober home/homeless shelter." MGF was willing to support Mother but wanted her to receive more services, including treatment for mental health, substance abuse, and counseling.
E. Mother's Interview
On December 17, 2018, DPSS interviewed Mother, who was living with her stepfather and maternal grandparents (MGPs). Mother reported that on December 11, 2018, she was living in a sober home/homeless shelter because she had completed her inpatient dual diagnosis treatment. Her parents agreed she could live with them but were hesitant because, as Mother described herself, she was a "'pot head'" and an "'emotional wreck.'" She stated she was on edge and would yell at her family. However, since treatment, she had been sober and was taking all of her medications as prescribed.
Mother further reported that she had been in a domestic violence relationship with Father during the last three years of their marriage and she was still afraid of him. She said he has always had anger issues but when he was using drugs, he would put holes in walls. He had threatened to kill her, pushed her, and pretended to hit her in the face. He was most dangerous and physical when he used alcohol, marijuana, and cocaine. When R.J. was six years old (in 2016), Mother left with R.J. and got a restraining order against Father. Father had threatened that she would lose everything and said he was "'lawyered up.'" Because Mother believed him, she agreed to settle their divorce proceedings and rescind the restraining order.
Mother said she was terrified to provide DPSS with the requested information because she feared Father would refuse giving her access to R.J. if returned to his care. She did not want to request full custody because Father told her he was "'lawyered up the ass . . . $40000 in fee . . . he was not going to loss [sic].'" Mother said she does not want to "'poke the bear' because she thinks she will lose all custody." Mother further reported that she and Father had used marijuana together and, before R.J.'s birth, they had used cocaine together. Mother acknowledged she had recently become sober and requested assistance in continuing her substance abuse classes.
F. Father's Interview
On December 18, 2018, DPSS spoke to Father by telephone. He said he was employed with a Fortune 500 Company as a senior engineer and Stepmother was a physical therapist and self-employed as an insurance agent. Father denied the referral allegations in the juvenile dependency petition and blamed A.S. and C.S.'s father for Stepmother's problems with A.S. and C.S. Father acknowledged that within the last couple of years the police had visited his home about six times, but it was for noise complaints by his neighbor.
Father explained that on December 5, 2018, Stepmother threw the television remote at him and it accidentally hit the wall-mounted television, causing it to fall to the ground and break. The blood on the walls was from Stepmother's ear bleeding when she tripped and fell. Father denied she had any other marks or bruises and denied they had any physical altercations. He admitted having some verbal arguments. Father stated that, during that evening, he and Stepmother went to the bar. He had two to four drinks. Stepmother had two drinks. Father believed someone put something in Stepmother's drink, such as bar cleaner or ammonia, which caused Stepmother to become extremely drunk. She slurred her words and tripped and fell, causing her six ear piercings to puncture her head.
Father acknowledged that he and Stepmother had engaged in a verbal argument in their bedroom that night. After Stepmother left the room, A.S. consoled her in the living room. C.S. came out of his room yelling at Stepmother, calling her names. A.S. pushed C.S. to the ground, telling him to stop disrespecting Stepmother. Father "'broke them up'" and Stepmother threw a deodorant stick at the wall to get their attention. The deodorant stick accidentally hit C.S. in the eye. Father denied engaging in any domestic violence. He attributed his arrest for public intoxication to stepping outside his house "'for 22 seconds.'" Father said he was also charged with child endangerment because he was the last adult in the home and the children were left unattended. Father added that he was certain charges would be dropped against him, stating "'I have a team of lawyers, $40 grand worth, working on this.'"
Father reported that he and Stepmother went out drinking two to four times a week and he drank three to four drinks each time. Stepmother drank two to three drinks. He decided a month earlier to no longer drink at home. Father said he had no drug history, noting marijuana was legalized in 2016 and he had a medical marijuana card. Father stated he did not keep track of how often he smoked marijuana. He smoked it in his bedroom and in the garage. Father denied ever using cocaine.
G. Police Photographs
DPSS obtained photographs taken on December 5, 2018, by the police. They included photographs of Stepmother's injuries, marijuana paraphernalia, and alcohol bottles. The photographs showed swelling and bruising on both sides of Stepmother's face; redness on her forehead; a split, swollen lip; a tear at the top and bottom of her ear; wounds from the stems of her earrings puncturing the skin behind her ear; redness, swelling and scratches on the center of her back; older, deep purple to black bruises on her left leg; and a linier bruise on her back between her hips. There were also photographs of two marijuana water pipes in the bathroom, a marijuana water pipe on the floor next to a bed, and another one next to a bed among children's toys. In addition, there was a photograph of a tall laundry basket containing approximately 20 empty bottles of Patron Tequila.
The police officer who took the photographs reported that he observed 20 to 30 empty bottles of Patron, blood on the walls, a broken television, and marijuana and alcohol in open sight. Stepmother told him she "'[b]lacked out'" and did not remember what had happened. Father told the officer he had a verbal argument with Stepmother and she cut her ear when she tripped and fell. The officer further reported that two days before there was a verbal non-physical report and one of the parties left the home.
H. Stepmother's Interview
During the afternoon of December 19, 2018, DPSS arrived unannounced at Father's home. Stepmother said she went out to dinner two to three nights a week, had two or three drinks with dinner, and smoked marijuana five times a week to help with migraines. Stepmother claimed marijuana helped her be a good parent. In response to the referral allegations, Stepmother said C.S. was the problem. She therefore signed custody paperwork giving C.S.'s father sole physical and legal custody of C.S.
Stepmother explained that, after returning home from eating out at the bar on December 5, 2018, she and Father engaged in an argument over relationship issues and Father's jealousy. Stepmother threw the television remote, which hit the television, causing it to fall off the wall, crash down on the dresser, and shatter. She then tripped and fell on top of it, "'causing a piece of glass to cut her ear.'" Stepmother said she got drunk easily because she had not been drinking for over a month and was a "'light weight.'" While A.S. was consoling her, C.S. yelled at her for being loud. The boys got into a fight. Father broke up the fight. She threw a deodorant stick to get their attention and accidentally hit C.S. C.S. called the police. Stepmother said the bruise by her left eye was from the table and her bruise on her leg was from when she ran into bedroom furniture the week before.
When DPSS asked Stepmother about getting assistance with altercation issues involving C.S., Father, and Stepmother, she said there were no issues that warranted services. When DPSS mentioned that the children had said they were scared during the December 5, 2018 incident, Stepmother denied there had been any other verbal altercations. She said she had continued her normal routine, including going to the bar for dinner the night before. She considered the allegations "'ridiculous.'"
I. Detention Hearing
On December 20, 2018, DPSS filed a juvenile dependency petition (Petition), founded on Father and Stepmother's unwillingness to address substance abuse issues and ongoing domestic violence in R.J.'s home. In addition, Mother reportedly had a history of substance abuse but had completed a substance abuse program and was living with MGPs. During the detention hearing on December 26, 2018, the juvenile court ordered R.J. removed from Father's care, detained, and placed with Mother at MGPs' residence. The court ordered two hours of weekly, supervised visitation for Father. In a separate juvenile dependency case, A.S. was also removed from Father's home and placed with his biological father.
J. Jurisdiction Hearing
DPSS reported in its jurisdiction report that Mother had no prior child welfare history or criminal history. Father had one prior welfare referral in February 2018, involving A.S. running away from Stepmother and Father. While A.S. was driven to Stepmother's new home with Father, A.S. jumped out of the car because he did not want to go. Father found A.S. hiding and reportedly grabbed him, and started choking him. Stepmother called the police. The case was closed as inconclusive. At the time, A.S. was living with his father in Orange County. Father had no criminal history, but had two restraining orders. One was granted to Mother against Father in November 2016, and was rescinded two days before Mother and Father's divorce settlement. The other one was requested by Father against Mother in November 2017, and was vacated.
On January 7, 2019, DPSS interviewed R.J. and Mother. R.J. stated he no longer lived with Father because of something that happened, which he was not comfortable discussing. The incident made him "'scared.'" R.J. also said he liked living with Mother but he missed his dogs. Mother reported that R.J. told her he saw Father hit Stepmother, and Father told him not to tell anyone. R.J. told her it was "horrid." Mother said Father had threatened her in the past but there was no physical violence. As to the substance abuse allegation against Father, Mother stated she knew Father was drinking a lot more than when she was married to him. She said he did not drink then but had used drugs intermittently for many years, including marijuana and cocaine.
Mother acknowledged the Petition allegation that she had abused drugs and alcohol but said it had been over a decade since she used "hard drugs" and she rarely drank alcohol. She admitted she had been a "'pothead'" since she was 18 years old but had recently completed a drug treatment program in October 2018. Mother conceded that in December 2019, she relapsed and smoked marijuana, but was committed to maintaining her sobriety for R.J. As to the emotional harm and domestic abuse allegations against Father, Mother stated that R.J. had told her Father and Stepmother argued every day, Father hit Stepmother, and his stepbrothers would comfort R.J.
DPSS included with its jurisdiction report copies of the police report of the December 5, 2018 incident and a log of calls for police service at Father's home. The log shows eight calls in 2018, including two on February 12, 2018 (runaway), and calls on April 16, 2018, at 4:18 a.m. (welfare check), August 8, 2018, at 10:42 p.m. (traffic stop), October 27, 2018, at 1:32 a.m. (unknown problem), December 2, 2018, at 9:14 p.m. (LL CONT), December 5, 2018, at 9:05 a.m. (ADW W/INJURY), and December 13, 2018, at 11:28 a.m. (welfare check).
DPSS interviewed A.S. on January 9, 2019. A.S. said the police report photographs "explained everything" regarding the December 5, 2018 incident. A.S. reiterated what he had previously reported. A.S. further reported that Stepmother and Father quit drinking hard liquor after the December 5, 2018 incident and only drink beer "sometimes." A.S. stated Stepmother used marijuana for her migraines. It was in her and Father's bedroom. A.S. said there was also a "'bong'" in their bedroom. A.S. was aware they used marijuana in their bedroom, because he could smell it. A.S. said the Patron bottles were collected for wedding decorations. DPSS also interviewed C.S. on January 9, 2019. C.S. said he did not have anything to add to what he had already reported and did not want to talk about it anymore. He felt sad things had gotten to where they were.
On January 17, 2019, Father filled out a behavioral health assessment examination, in which he stated that any current problems were not related directly to his use of alcohol and or drugs. He further stated he had no alcohol or drug concerns. The assessment provider commented that "Client appears unaware and ambivalent of the need for change. Client states that he has no problem with marijuana and/or alcohol."
On February 22, 2019, DPSS stated in an addendum report, that Father minimized the impact domestic violence had on R.J. DPSS was concerned Father's relationship with Stepmother would continue to expose R.J. to domestic violence, placing R.J. at risk of being harmed or injured. Father reportedly had recently enrolled in reunification services. DPSS believed further intervention was needed to ensure the safety and wellbeing of R.J. when in Father's care.
A progress report attached to DPSS's addendum report stated that on January 21, 2019, Father began attending a 10-week domestic violence program and had attended two classes as of January 23, 2019. Another progress report stated that on January 16, 2019, Father also began attending a 10-week drug and alcohol treatment program. As of January 23, 2019, he had attended four sessions. A lab report attached to the addendum report stated that on January 16, 2019, and February 4, 2019, Father tested positive for cannabinoids. Other supplemental reports stated that in January 2019, Father enrolled in a six-week, 12-hour parenting program, which he completed on February 19, 2019. As of February 4, 2019, he reportedly had attended seven sessions of the drug and alcohol treatment program, and five sessions of a domestic violence program. The district attorney reported in February 2019, that it had not filed any charges against Father for the December 5, 2018 incident. On March 8, 2019, Father enrolled in counseling but had not yet attended any sessions.
DPSS further reported in its February 22, 2019, addendum report, that DPSS was concerned as to Mother's ability to provide a safe and stable environment without DPSS involvement. She "needed to demonstrate stabilized mental health and sobriety for an extended period of time." On December 11, 2018, Mother had completed a 34-day substance abuse and mental health treatment program. However, on January 15, 2019, Mother tested positive for cannabinoids. Therefore, DPSS recommended family maintenance services be provided to her while she was caring for R.J. In January 2019, Mother also enrolled in a domestic violence program, and in February 2019, Mother completed a parenting course.
On April 3 and 4, 2019, Father filed hearsay objections and other evidentiary objections to DPSS's detention report, jurisdiction report, and addendum report filed on February 22, 2019. In addition, Father filed a contested jurisdictional hearing brief. On April 5, 2019, DPSS filed a second addendum report stating Father and Stepmother requested to change the service provider, Riverside University Health Systems, because the provider diagnosed Father and Stepmother as having a substance abuse problem, and they claimed they had no history of it. DPSS further reported that on March 22, 2019, R.J. stated everything at Mother's home was "'great'" and his visits with Father were "'good.'" He said he felt safe with Father during visits but "'[o]nly because there is a supervisor'" present during their supervised visits.
The DPSS concluded in its April 5, 2019 addendum report that R.J.'s family was in need of ongoing intervention because Father continued to minimize the impact of domestic violence on R.J., thus placing him at risk of physical and emotional harm. DPSS was concerned Father and Stepmother would continue to engage in domestic violence. DPSS noted Mother had provided R.J. a safe and stable environment, with MGPs' support, but Mother had only recently begun to address her substance abuse issue.
On April 9, 2019, Father filed an ex parte application for discovery sanctions against DPSS, on the grounds DPSS had not produced requested discovery and had engaged in spoliation of evidence. Counsel for DPSS filed a declaration in opposition. The court summarily denied Father's sanctions motion.
Before proceeding with the jurisdiction hearing on April 10, 2019, the court heard argument on Father's hearsay and evidentiary objections, and overruled all of the objections to DPSS's reports. During the jurisdiction hearing, at Father's request, two DPSS social workers assigned to the case testified regarding preparing the DPSS reports. One of the social workers testified that she was not concerned about placing R.J. with Mother and MGPs because Mother had received substance abuse treatment, she was taking her prescribed medication, and she had become sober.
The other social worker testified that Father's Riverside University Health System profile assessment indicated he had benefited from a parenting course. She further testified Father voluntarily participated in domestic violence classes and alcohol awareness classes that were not approved by DPSS. The programs were entirely online and were self-diagnosis types of programs, in which the client determines how many classes he or she wishes to participate in. However, Father agreed to participate in another domestic violence course, which began in March 2019. The social worker testified she had no way of knowing if Father and Stepmother had engaged in any domestic violence after the December 5, 2018 incident, because Father's attorney would not allow the social worker to talk to Father and Mother does not live with him. The social worker explained that she based her conclusion there was a risk Father and Stepmother would continue to engage in domestic violence on the DPSS reports and interviews of Mother, R.J., C.S., and A.S.
Stepmother testified that the photographed Patron bottles were made into flower vases for her wedding and also given as gifts for Christmas in 2017. The bottles were not all from alcohol Father and Stepmother drank. She drank alcohol from about a quarter of the bottles collected during the 20-month period she dated Father before their marriage.
The jurisdiction hearing was resumed on April 16, 2019, during which Father testified that he had been tested four times for drugs during the dependency proceedings and one test was positive for cannabis. He stated that his final substance abuse assessment on April 9, 2019, by MFI Recovery, indicated he did not need to participate in a substance abuse program. Father acknowledged he did not provide the assessment provider with any of the DPSS reports and the provider was different from the one that had provided the other assessments which indicated he exhibited behavior indicating continuing problems with marijuana and alcohol. Father denied ever using cocaine. He testified he had no issues with marijuana because he only used it for his medical needs. He further stated he never had any issues with alcohol, including on the night of the December 5, 2018 incident.
After hearing testimony and argument, the juvenile court found true the allegations in the Petition, as amended, including finding that Father and Stepmother engaged in domestic violence, including on December 5, 2018, causing R.J., A.S., and C.S. to become very scared, and resulting in Stepmother and a child suffering injuries. The court further found that Father's denial of having alcohol and marijuana issues demonstrated he had not adequately addressed those issues. The court ordered R.J. removed from Father's physical custody and ordered family reunification services for Father. The court further ordered R.J. to remain with Mother and ordered family maintenance services for her.
III.
SUFFICIENCY OF EVIDENCE
SUPPORTING JURISDICTIONAL FINDINGS
Father contends the jurisdiction order finding true the section 300, subdivision (b)(1) allegations is not supported by sufficient evidence. He argues it is undisputed R.J. did not suffer serious physical harm, and there was insufficient evidence that at the time of the contested jurisdiction hearing, R.J. was at substantial risk of suffering serious physical harm in the future.
A. Applicable Law
The three elements of a jurisdictional finding under section 300, subdivision (b)(1) are: "(1) neglectful conduct by the parent; (2) causation; and (3) 'serious physical harm or illness' or a 'substantial risk' of serious physical harm or illness." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 (Yolanda L.), citing In re Cole Y. (2015) 233 Cal.App.4th 1444, 1452.) When, as in the instant case, the jurisdictional allegations are based solely on risk to the child, that risk of present or future harm must be shown to exist at the time of the jurisdiction finding. (Yolanda L., supra, at p. 993; In re R.M. (2009) 175 Cal.App.4th 986, 989.)
Section 300, subdivision (b)(1), provides that a child is within the jurisdiction of the juvenile court and may be adjudged a dependent of the court when "[t]he child 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 [the parent] to adequately supervise or protect the child . . . ."
"Although evidence of past events may have some probative value in considering current conditions, to sustain a petition under section 300, subdivision (b) there must be evidence that 'the circumstances existing at the time of the hearing make it likely the children will suffer the same type of 'serious physical harm or illness' in the future."' (In re R.M., supra, 175 Cal.App.4th at p. 989, citing In re Janet T. (2001) 93 Cal.App.4th 377, 388.) "The juvenile court need not wait until a child is seriously injured to assume jurisdiction if there is evidence that the child is at risk of future harm from the parent's negligent conduct." (Yolanda L., supra, 7 Cal.App.5th at p. 993; accord, In re N.M. (2011) 197 Cal.App.4th 159, 165.)
Generally, a single episode of endangering conduct is not sufficient to support a section 300, subdivision (b)(1) jurisdictional finding in the absence of evidence that such conduct is likely to reoccur. (Yolanda L., supra, 7 Cal.App.5th at p. 993; In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) "Although evidence of past conduct may be probative of current conditions, the court must determine 'whether circumstances at the time of the hearing subject the minor to the defined risk of harm.'" (In re James R. (2009) 176 Cal.App.4th 129, 135-136.) A finding of a defined risk of harm at the time of the jurisdiction hearing requires "some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]" (Id. at p. 136.) "Leaving drugs or drug paraphernalia within the child's reach is an example of negligent conduct that will support section 300, subdivision (b) dependency jurisdiction." (Yolanda L., supra, at p. 993; see also, In re Kristin H. (1996) 46 Cal.App.4th 1635, 1651 [drug paraphernalia].)
"We review the juvenile court's jurisdictional findings and disposition orders for substantial evidence," and "'we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible.' [Citations.]" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
B. Analysis
Father argues there was insufficient evidence to support the Petition allegations. We disagree. Where, as here, a dependency petition alleges multiple grounds for asserting that a child comes within the juvenile court's jurisdiction, we may affirm the juvenile court's finding of jurisdiction over the child if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
In addition to the findings against Father, the juvenile court found true the Petition's allegations that R.J. was at risk of serious physical harm because of Mother's history of drug and alcohol abuse. (Petition allegation b-3.) Mother has not appealed from the court's jurisdictional findings, nor does Father contest the validity of the findings concerning Mother in his appeal. (In re Briana V. (2015) 236 Cal.App.4th 297, 308 ["'[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 [the minor] within one of the statutory definitions of a dependent. [Citations.]'"]; In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) Here, the allegations against Mother are undisputed (Petition allegation b-3), and there is substantial evidence supporting the Petition allegations against Father (Petition allegations b-1, -2, -4, and -5).
1. Allegation b-1 Jurisdiction Finding
During the jurisdiction hearing, the court amended allegation b-1 of the Petition, in conformance with the evidence, to state: "'The [F]ather engages in domestic violence with his current spouse while in the presence of the child.'" "'Further, during the most recent incident of domestic violence, the [F]ather's spouse required medical attention due to marks to both side[s] of the face, swelling of the lip, and a laceration to the ear.'"
For purposes of brevity, we refer to the combined jurisdiction and disposition hearing as the jurisdiction hearing.
Father argues the record is devoid of any evidence establishing that the December 5, 2018 incident was anything other than an isolated incident. Father further asserts that a single incident is insufficient to support a finding of future risk of serious physical harm under section 300, subdivision (b)(1). We agree that, generally, a single episode of endangering conduct is not sufficient to support a section 300, subdivision (b)(1) jurisdictional finding, but this is only in the absence of evidence that such conduct is likely to reoccur. (Yolanda L., supra, 7 Cal.App.5th at p. 993.) Here, there was substantial evidence that it was likely Father and Stepmother would commit future acts of domestic violence in R.J.'s presence if R.J. was left in their home. The December 5, 2018 incident was by no means an isolated incident. Evidence of the circumstances of the December 5, 2018 incident, along with evidence of other frequent altercations between Father and Stepmother while intoxicated, supported a reasonable finding similar conduct was likely to reoccur.
Father and Stepmother reportedly argued every week while R.J., C.S., and A.S. were home. A police log showed that the police were called to Father's home on three occasions for domestic violence within the year before the December 5, 2018 incident. In addition, the children told DPSS social workers that they were upset by Father and Stepmother's frequent acts of yelling, arguing, and throwing things. C.S. reported that there was "'a ton of yelling and banging and [Father] breaking things.'" R.J. reported that Father and Stepmother argued every day and, when Father was breaking things and fighting, he was frightened, cried, and sought comfort from A.S. and C.S. R.J. could no longer rely on A.S. and C.S.'s comfort and protection after the December 5, 2018 incident, because Stepmother signed over custody of C.S. to C.S.'s biological father, and DPSS removed A.S. from Father's the home as well and placed him with his biological father.
The evidence further supports a reasonable inference that if Father and Stepmother remained together, they would continue to drink alcohol and smoke marijuana to excess and would continue to believe they did not have any substance abuse issues. They would also continue to be in denial that such behaviors placed R.J. at risk of emotional and physical harm. It therefore was likely that they would not address their problematic behaviors and continue to engage in domestic violence, which placed R.J. at future risk.
"[D]omestic violence in the same household where children are living . . . is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Children can be "put in a position of physical danger from [spousal] violence" because, "for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg." (Ibid.)
"'Both common sense and expert opinion indicate spousal abuse is detrimental to children.' ([Citations]; Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State (1994) 3 Cornell J.L. & Pub. Pol'y 221, 228 ['Studies show that violence by one parent against another harms children even if they do not witness it.']; Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions (1991) 44 Vand. L.Rev. 1041, 1055-1056 ['First, children of these relationships appear more likely to experience physical harm from both parents than children of relationships without woman abuse. Second, even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents. . . . [¶] Third, children of abusive fathers are likely to be physically abused themselves.' (Fns. omitted.)].)" (In re E.B. (2010) 184 Cal.App.4th 568, 576.)
Based on the totality of the evidence presented during the jurisdiction hearing, we conclude there was sufficient evidence to support the trial court's true finding on the b-1 allegation, as amended. We need not discuss the other Petition allegations because substantial evidence establishing the b-1 allegation against Father, along with the b-3 allegation against Mother, is sufficient to support jurisdiction. Where a dependency petition alleges multiple grounds for asserting that a child comes within the juvenile court's jurisdiction, we may affirm the juvenile court's finding of jurisdiction over the child if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
IV.
REMOVAL ORDER
Father challenges the disposition order removing R.J. from Father's custody and placing him with Mother. Citing Welfare and Institutions Code section 361, subdivision (c) and California Rules of Court, rule 5.695, Father argues there was no clear and convincing evidence that returning R.J. to Father's care would cause a substantial danger to R.J.'s physical health and there was no reasonable means of protecting it without removal. (Welf. & Inst. Code, § 361, subd. (c)(1).) Father also argues there was no clear and convincing evidence R.J. was suffering severe emotional damage requiring R.J.'s removal from Father's home. (Welf. & Inst. Code, § 361, subd. (c)(3).) We disagree.
Undesignated rule references are to the California Rules of Court.
A. Standard of Review of a Disposition Order
"We normally review an order removing a child from parental custody for substantial evidence viewing the record in the light most favorable to the juvenile court's findings. [Citations.] When the issue on appeal involves the interpretation and proper application of the dependency statutes, however, our review is de novo. [Citations.]" (In re Anthony Q. (2016) 5 Cal.App.5th 336, 344; see In re J.I. (2003) 108 Cal.App.4th 903, 911.)
B. Section 361, Subdivision (c) Limitation on Removal
Under section 361, subdivision (c)(1), "Before the court may order a minor physically removed from his or her parent, it must find, by clear and convincing evidence, the minor would be at substantial risk of harm if returned home and there are no reasonable means by which the minor can be protected without removal. (§ 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. [Citation.] The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citations.]" (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)
Under section 361, subdivision (c)(3), removal requires evidence that the minor "is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent, guardian, or Indian custodian."
C. Analysis
There is substantial evidence supporting the juvenile court's disposition order removing R.J. from Father's custody and continuing R.J.'s placement with Mother. As discussed above, there was substantial evidence R.J. would be at substantial risk of harm if returned to Father's home. There was also substantial evidence R.J. was suffering and would continue to suffer severe emotional damage if returned to Father's home, particularly since his stepbrothers were no longer living there.
The record also shows that, although Father had been participating in reunification services, there was evidence that he continued to deny he had any substance abuse or domestic abuse issues affecting his parenting. He thus minimized the risk his substance abuse and frequent fighting with Stepmother would have an impact on R.J.'s emotional and physical well-being. Furthermore, there generally was no effective way of verifying whether Father and Stepmother had engaged in domestic violence after R.J. and his stepbrothers were removed from Father's home, other than if the police were called. Based on evidence of these circumstances, we conclude the court's disposition order removing R.J. from Father's care was supported by substantial evidence and thus proper.
V.
HEARSAY AND EVIDENTIARY OBJECTIONS
Father contends the juvenile court committed the following procedural errors when conducting the jurisdiction hearing: (1) the juvenile court failed to consider Father's trial brief and attached exhibits; (2) the juvenile court failed to rule on Father's hearsay objections under section 355; (3) the juvenile court failed to rule on Father's evidentiary objections; and (4) the juvenile court failed to rule on Father's ex parte application for discovery sanctions. We conclude the juvenile court did not commit any such errors.
A. Procedural Background
On April 3, 2019, Father filed hearsay objections, under section 355, to DPSS's detention report, jurisdiction report, and February 22, 2019, addendum report. The following day, Father also filed additional evidentiary objections to the same three reports. The objections concerned statements within the reports by Father, Stepmother, Mother, MGF, A.S., C.S., and R.J. In addition, on April 5, 2019, Father filed a contested jurisdiction hearing brief with attached exhibits. Father also filed on April 5, 2019, an ex parte application for discovery sanctions against DPSS, on the grounds DPSS had not produced requested discovery and had engaged in spoliation of evidence.
During the jurisdiction hearing on April 10, 2019, the court acknowledged receiving Father's trial brief, hearsay objections and other evidentiary objections. After hearing argument on Father's hearsay objections and other evidentiary objections, the court stated the objections were untimely because Father did not provide sufficient time for responses. The court further stated that, nevertheless, it had considered Father's objections on the merits and rejected them. The court explained that it was permitted to consider the evidence and determine the weight to be given to it when ruling on jurisdiction and the disposition. The court stated it therefore would consider all of the reports that were filed.
The court added it would not address any specifics regarding the objections, explaining that, "Even if there is a hearsay statement, the law says that if there are no exceptions to that, as long as I don't consider that particular fact solely to make my findings and orders, then I can certainly consider it all as a whole, which is what I intend to do." The court further denied Father's request for discovery sanctions and proceeded with the jurisdiction hearing.
B. Discussion
Father complains that the juvenile court erroneously concluded his objections were not timely, even though under Riverside Local Rule 5227(B), they were timely. That local rule states that "All dependency filings must be filed in their entirety no later than 3:00 p.m. on the Court day prior to the scheduled hearing." (Super. Ct. Riverside County, Local Rules, rule 5227(B).) However, this rule was superseded by section 355, subdivision (c)(2), which provides: "For purposes of this subdivision, an objection is timely if . . . it gives the petitioner a reasonable period of time to meet the objection prior to a contested hearing." Father did not file and serve his objections until April 4 and 5, 2019, which was less than a week before the April 10, 2019 jurisdiction hearing. The juvenile court thus reasonably concluded Father's objections were not timely because Father did not give DPSS "a reasonable period of time to meet the objection prior to a contested hearing." (§ 355, subd. (c)(2).)
Furthermore, the juvenile court clearly stated that, even though Father's objections were untimely, the court considered and ruled on them on the merits. We note Father is not challenging the substantive merits of the objections. Father argues his due process rights were violated because the trial court did not address each of his hearsay and evidentiary objections. We disagree. The court expressly stated it considered all of Father's objections and explained why it rejected them as a whole. There was thus no violation of Father's due process rights by not addressing each objection individually. The record demonstrates Father had an opportunity to assert his objections, the juvenile court considered them, and the court stated its reasons for rejecting them. Father was provided with the opportunity to be heard, respond to the Petition allegations, subpoena and call witnesses, cross-examine adverse witnesses, and present evidence. He thus was not denied due process.
VI.
DISCOVERY SANCTIONS
Father contends the juvenile court erred in summarily denying his ex parte application for discovery sanctions against DPSS. Father argues the court failed to properly rule on his discovery sanction motion, in violation of his due process rights. He asserts that the court should have sanctioned DPSS for maliciously refusing to disclose items DPSS was mandated to disclose, and for DPSS's obfuscation and destruction of evidence.
Father made multiple requests for discovery from DPSS. In January 2019, Father's attorney requested the DPSS social worker assigned to the case to provide her handwritten notes. She responded that the notes could not be provided because DPSS shreds them. By letter to DPSS on February 14, 2019, Father also demanded immediate disclosure of numerous discovery items required under rule 5.546(d). During a hearing on February 27, 2019, the court asked Father's attorney if he had received all of DPSS's reports, and Father's attorney said he did. The court ordered that any further discovery requests were to be made at least two weeks before the date of the jurisdiction hearing on April 10, 2019.
On April 9, 2019, the day before the jurisdiction hearing, Father filed an ex parte application for discovery sanctions on the grounds DPSS had not produced requested discovery and had engaged in spoliation of evidence. Father requested the court to either dismiss the juvenile dependency proceeding or, alternatively, exclude certain evidence on the grounds DPSS failed to produce mandatory discovery items under rule 5.546(d) and engaged in spoliation of evidence.
In response to Father's sanctions motion, DPSS's attorney filed a declaration stating that on February 26, 2019, she provided Father's attorney with the latest addendum filed on February 22, 2019. Counsel for DPSS explained that DPSS's evidence generally is all contained within its court reports, and the majority of the social worker's notes form the basis for the reports. Discovery is normally completed by providing all court reports to counsel, unless additional specific items are requested. DPSS's counsel further stated she told Father's attorney on February 27, 2019, that the social worker's notes were contained in the Delivered Service Logs (DSLs), and if he wanted them, he would need to request a court order that DPSS release the DSLs to him, which Father's counsel had not done. DPSS's attorney further stated in her declaration that she had not received any discovery requests from Father's attorney after the last court hearing on February 27, 2019 hearing.
On April 10, 2019, the juvenile court summarily denied Father's motion for discovery sanctions. Father's attorney could have objected to the court ruling on the motion without requesting oral argument but failed to do so, thus forfeiting the objection on appeal. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249 ["It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal."]; People v. Partida (2005) 37 Cal.4th 428, 431.)
We further conclude Father has not established that the juvenile court abused its discretion in denying his motion for discovery sanctions. Discovery in juvenile matters rests within the control of the juvenile court, and the exercise of its discretion will be reversed on appeal only on a showing of a clear abuse. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1166.) Under rule 5.546(d): "[P]etitioner must, after timely request, disclose to the child and parent or guardian, or their counsel, the . . . material and information within the petitioner's possession or control." (Cal. Rules of Court, rule 5.546(d).) In addition, "[d]iscovery must be completed in a timely manner to avoid the delay or continuance of a scheduled hearing." (Rule 5.546(i).) If a party fails to comply with discovery requirements under rule 5.546 or with an order issued under this rule, "the court may order the person to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit a party from introducing in evidence the material not disclosed, dismiss the proceedings, or enter any other order the court deems just under the circumstances." (Rule 5.546(j).)
Here, the record shows DPSS complied with rule 5.546, by providing Father with the detention report, jurisdiction report, two addendum reports filed on February 22, 2019, and April 5, 2019, and all attachments to the reports. These reports and attachments were all provided to Father before the hearing on February 27, 2019, with the exception of the April 5, 2019, addendum report, which Father stated he received on April 8, 2019. Father did not make any additional discovery requests after the February 27, 2019. As explained in the DPSS attorney's April 10, 2019 declaration, DPSS's evidence was contained within its court reports. Therefore, DPSS discovery compliance was completed by providing all of its reports to counsel.
With regard to the social worker notes requested by Father's attorney, DPSS's counsel stated she told Father's attorney on February 27, 2019, that the social worker's notes were contained in DSLs, and if he wanted them, he would need to request a court order that DPSS release the DSLs to him, which Father's counsel did not do. In addition, the social workers testified during the jurisdiction hearing that the information from their handwritten notes of interviews was inputted into the computer system and then, in accordance with policy procedures, the notes were shredded.
Father argues that, despite multiple requests, DPSS did not provide original-format photographs. Instead, low quality versions of photographs were provided. But the photographs were taken by the police and there was no evidence DPSS had the original photographs. We conclude Father has not shown the juvenile court abused its discretion in denying discovery sanctions under rule 5.546, because the court could have reasonably found there was sufficient discovery compliance. Further, even if DPSS did not fully comply with Father's discovery demands, Father has made no showing of reversible error. He has not shown that granting his motion for discovery sanctions would have resulted in a more favorable result. (In re Celine R. (2003) 31 Cal.4th 45, 60 [reversal is permissible "only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error"].)
VII.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.