Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge, Super. Ct. No. JJP01369.
NARES, Acting P. J.
Felipe G. appeals after the juvenile court ordered guardianship as the permanent plan for his minor daughter, E.L., and terminated its dependency jurisdiction. Felipe contends: (1) his challenges to the court's findings and orders made at a six-month review hearing are cognizable in this appeal; (2) the order terminating dependency jurisdiction does not render the appeal moot; (3) the court erred by finding he was not E.L.'s presumed father; (4) E.L.'s maternal grandmother did not have standing to contest Felipe's paternity status or his request for custody of E.L.; (5) there was no substantial evidence to support the court's finding that placing E.L. with Felipe would create a substantial risk of detriment to her; (6) reunification services were inadequate because the court did not allow Felipe more visitation; (7) the court erred by taking judicial notice of its decision in an unrelated case; and (8) Felipe was denied his right to a fair trial by an impartial judge. We agree Felipe's claims of error from the six-month review hearing are cognizable on appeal, and the court's order terminating dependency jurisdiction does not render the appeal moot. However, we further conclude none of Felipe's contentions have merit and accordingly affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
M.J. gave birth to E.L. in 2003. At the time of E.L.'s birth, Felipe signed a voluntary declaration of paternity (Fam. Code, §§ 7570 et seq., 7611) and was listed as E.L.'s father on her birth certificate. Paternity testing later confirmed he was E.L.'s biological father. After M.J. and Felipe separated, Felipe had no contact with E.L. for nearly five years.
In August 2006, when E.L. was almost three years old, she and her three siblings became dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (j) based on findings of M.J.'s drug abuse and neglect. The court placed the children with M.J. in the home of the maternal grandmother and ordered M.J. to comply with family maintenance services. The Imperial County Department of Social Services (Department) did not attempt to notify Felipe of the proceedings.
E.L.'s siblings are not subjects of this appeal. Felipe is not the siblings' father.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
During the next 18 months, M.J. made no progress with services. In June 2008, Department filed supplemental petitions on behalf of the children, alleging M.J. had not complied with services and she tested positive for methamphetamine, as did E.L. and her twin brothers. At a jurisdiction and disposition hearing, the court found the previous disposition had not been effective in protecting the children, continued them as dependents, removed them from M.J.'s custody but maintained their placement with the maternal grandmother. The court denied M.J. reunification services and set a hearing under section 366.26 to select and implement a permanent plan for the children.
In October 2008, Felipe learned for the first time that E.L. was a dependent of the court. He appeared at the selection and implementation hearing, and the court appointed counsel for him. A week later, Felipe filed a section 388 petition for modification, seeking to have the court place E.L. with him. He had recently tested positive for methamphetamine. Department recommended the court offer Felipe reunification services.
In February 2009, the court removed the children from the grandmother's home based on findings the grandmother was unable to protect the children from M.J., who was living in the home and still abusing drugs. The court declined to place E.L. with Felipe based on its belief he was not a presumed father. Consequently, Felipe filed an amended section 388 petition requesting presumed father status. He also requested custody of E.L. and dismissal of the court's dependency jurisdiction, or alternatively, family maintenance services.
Six weeks later, Felipe filed a second amended modification petition under section 388, alleging he was strongly bonded with E.L., and although his goal was to obtain custody of her, he was willing to accept reunification services.
The grandmother appeared with retained counsel at a hearing on February 25, 2009, and requested the children be returned to her care. Over the objections of Felipe and Department, the court granted the request.
E.L. was having regular visits with Felipe. The social worker reported E.L. was excited and happy to see Felipe and referred to him as her "daddy." E.L. told the social worker she loved Felipe and wanted to live with him. The social worker noted Felipe was appropriate, loving and nurturing with E.L. The social worker believed it was in E.L.'s best interests to be raised by Felipe. The grandmother, however, reported that E.L. was having nightmares since she began visiting Felipe. According to the grandmother, E.L. asked to remain in her home and not be placed with Felipe.
The court granted Felipe's section 388 petition, finding Felipe was E.L.'s presumed father and, thus, he was entitled to reunification services. The court noted Department had failed to give Felipe proper notice of the proceedings. Nevertheless, the court found E.L.'s best interests required she remain placed with the grandmother, who had recently been appointed legal guardian of E.L.'s siblings. The court ordered visits for Felipe according to a visitation schedule agreed to by the parties.
In its six-month review report, Department recommended the court place E.L. with Felipe, order family maintenance services and terminate its jurisdiction. The social worker stated Felipe "has done everything that was asked of him, " and E.L. said she wanted to live with him. However, the social worker also reported the grandmother said E.L. had been physically abused in Felipe's home and was unhappy during visits with Felipe. According to the grandmother, E.L. was experiencing anxiety about the possibility of being separated from her siblings and grandmother.
At the six-month review hearing, the court disclosed it was presiding over a highly contested child custody case involving Felipe's girlfriend, Ericka R., and her former husband. The court noted allegations had been made in that case that could be relevant to some of the issues in the present case, "which the parties here apparently are not aware of...." Felipe unsuccessfully sought to have the court recuse itself in the dependency matter. The court continued the hearing to allow the parties to review the file in Ericka's child custody case so that everyone had access to the same information the court had.
E.L.'s counsel submitted a report from Peter DiManno, a licensed clinical social worker, whom counsel had hired to interview E.L. about her placement. Specifically, DiManno was asked to assess the potential detriment to E.L. if she were removed from the home of her grandmother and placed with Felipe. Felipe objected to the admissibility of DiManno's report on the ground it violated local rules requiring the court to authorize E.L. to undergo an examination or evaluation. The court agreed the evaluation was unauthorized but admitted the report subject to cross-examination of DiManno.
According to DiManno's report, E.L. preferred to be parented by her grandmother. E.L. said she had some good times with her dad, but she did not want to live with him. She did not want her dad to know this because she was afraid he would get mad. E.L. perceived her "family" to be her siblings. DiManno believed removing E.L. from her grandmother and siblings would be detrimental to her. He also believed E.L.'s relationship with Felipe should be encouraged and developed through visits.
E.L.'s Court Appointed Special Advocate (CASA), Norma Ruiz, filed a report after spending time alone with E.L. and observing her with Felipe, her siblings and the grandmother. E.L. told Ruiz she enjoyed spending time with her dad, but she wanted to live with her grandmother. E.L. said she wanted to visit her dad, but she would be "very sad" if she could not live with her grandmother and siblings. Ruiz noted E.L. has stability, love and comfort in her grandmother's home. In Ruiz's opinion, it would be detrimental to E.L. to be removed from the only family she has known since birth. Ruiz also believed E.L. should continue having a relationship with Felipe, including overnight visits.
At the continued six-month review hearing, the court received various reports into evidence and heard the testimony of Felipe, Ericka, two social workers, Felipe's friend Diana B., the paternal grandmother, the CASA and DiManno. The court found it would be detrimental to E.L. to be removed from the grandmother's care and placed with Felipe, who was E.L.'s presumed and biological father. The court terminated Felipe's services and set a section 366.26 selection and implementation hearing for E.L.
Felipe timely filed a writ petition under California Rules of Court, rule 8.452, and a request for a stay of the selection and implementation hearing. In an order dated July 28, 2010, this court denied Felipe's stay request.
Rule references are to the California Rules of Court.
At the selection and implementation hearing, the court stated it had read the various reports and had considered the recommendations of the social workers, E.L.'s wishes and other evidence. The court found terminating parental rights would be detrimental to E.L. because she had a beneficial parent-child relationship with both parents and ordered guardianship as her permanent plan. The court appointed the grandmother as E.L.'s legal guardian, ordered visitation for Felipe as agreed to by the parties in mediation and as set forth in the previous visitation schedule, and terminated dependency jurisdiction. Felipe appealed.
Letters of guardianship issued on July 30, 2010.
In an order dated August 16, 2010, this court denied Felipe's writ petition, stating "[t]he order to show cause is discharged as moot in light of the juvenile court's termination of jurisdiction."
DISCUSSION
I
Felipe raises various issues in this appeal involving findings and orders made at the six-month review hearing at which the court terminated Felipe's services and set a section 366.26 selection and implementation hearing. Under section 366.26, subdivision (l), an order setting a section 366.26 hearing, including findings subsumed in that order, is not appealable unless "specified steps are timely taken to secure review by extraordinary writ." (Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1507.) To obtain review on appeal from these orders, a party must timely file a writ petition; the petition must substantively address the specific issues being raised; the petition must be supported by an adequate record; and the petition must have been "summarily denied or otherwise not decided on the merits." (§ 366.26, subd. (l)(1)(C); Joyce G., at p. 1507; see rule 8.452.)
Here, Felipe timely filed a writ petition under rule 8.452, which substantively addressed the issues he now raises. By order of this court, the petition was denied, the order to show cause was discharged and no opinion issued. Because Felipe's writ petition was "summarily denied or otherwise not decided on the merits, " his claims of error are cognizable on appeal. (§ 366.26, subd. (l)(1)(C); Joyce G. v. Superior Court, supra, 38 Cal.App.4th at p. 1507.)
We also agree with Felipe's claim that his appeal is not moot. Although the court terminated its dependency jurisdiction, Felipe's rights were adversely affected by the court's order denying his request to have E.L. placed with him, and other orders challenged by Felipe in this appeal may affect the outcome of subsequent proceedings. (See In re A.R. (2009) 170 Cal.App.4th 733, 740; In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547; In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1055.)
II
Felipe contends the court erred by finding he was not E.L.'s presumed father. He asserts the court equivocated about his paternity status throughout the proceedings, eventually finding he was a mere biological father, and this "had a major impact on the case."
The record shows the court found Felipe was E.L.'s presumed father and treated him as such. Although there was some confusion on the part of the court and the parties as to Felipe's paternity status, the court ultimately found Felipe was E.L.'s presumed father as well as her biological father. The evidence amply supports this finding.
Felipe achieved presumed father status by establishing paternity by voluntary declaration. Under Family Code section 7611, a man is " 'presumed to be the natural father of a child if he meets [certain] conditions...., ' " including establishing paternity by voluntary declaration. (In re Liam L. (2000) 84 Cal.App.4th 739, 746; In re Christopher M. (2003) 113 Cal.App.4th 155, 163.) A voluntary declaration must contain, in addition to other requirements, "a statement by the mother that the man signing the declaration is the only possible father, as well as a statement by the father that he is the biological father. (Fam. Code, § 7574, subd. (b)(5), (6).)" (Christopher M., at p. 163.) Such declarations signed by the parents and filed with the appropriate agency "establish the paternity of the child and... have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction." (Fam. Code, § 7573; rule 5.635(c); Liam L., at pp. 744-745.) A man who signs a voluntary declaration of paternity is entitled to presumed father status. (Christopher M., at p. 163, citing Fam. Code, § 7611.)
Here, Felipe and M.J. signed a voluntary declaration of paternity at the hospital the day after E.L. was born. The declaration complied with all the requirements entitling Felipe to presumed father status. Although Felipe also confirmed through paternity testing that he is E.L.'s biological father, this has no bearing on his status as a statutorily presumed father, which has the effect of a court judgment. (In re Liam L., supra, 84 Cal.App.4th at p. 747.)
County counsel and minor's counsel, both respondents in this appeal, agree that Felipe is E.L.'s presumed father.
Further, as a presumed father, Felipe received all the rights afforded parents, including the appointment of counsel, reunification services and a finding of detriment before the court denied him custody of E.L. (§§ 317, subd. (b), 361.5, subd. (a), 361.2, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 448; In re T.R. (2005) 132 Cal.App.4th 1202, 1209; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) Thus, no error as to Felipe's paternity status occurred.
III
Felipe contends the grandmother, who was E.L.'s de facto parent, did not have standing to contest his paternity status and custody request. He asserts the court erroneously allowed the grandmother to participate fully in the proceedings with the same due process rights afforded a parent.
Felipe's argument with respect to the grandmother's standing to challenge his presumed father status is moot in light of our conclusion Felipe was a presumed father with all rights attendant to that status.
A
" 'De facto parent' means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period." (Rule 5.502(10); In re Kieshia E. (1993) 6 Cal.4th 68, 70-71.) Although a de facto parent does not have a right to reunification or visitation with the child (In re Jamie G. (1987) 196 Cal.App.3d 675, 679), he or she is entitled to be present at hearings, with counsel, and to introduce relevant evidence that may aid in the trial court's decisionmaking process with respect to the child's best interests. (Rule 5.534(e)(1), (2) & (3); In re Joshuia S. (1988) 205 Cal.App.3d 119, 125.) In this regard, de facto parents have "standing to participate as parties." (Rule 5.534(e).)
B
Here, the grandmother was E.L.'s de facto parent because she had assumed the role of parent on a day-to-day basis for nearly all of E.L.'s life, and E.L. was psychologically bonded to her. The grandmother regularly attended juvenile court hearings and had information about E.L. that was unique and different from other parties' information. (See In re Ashley P. (1998) 62 Cal.App.4th 23, 27; In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67.) As a de facto parent, the grandmother was entitled to present evidence "and otherwise to participate as a full party to the contested hearing. [Citations.]" (In re Jonique W. (1994) 26 Cal.App.4th 685, 693 [court erred by refusing to allow de facto parent to present evidence as to minors' best interests].) Although the grandmother did not have all the rights and preferences of a parent, she had "procedural rights in order to 'assert and protect [her] own interest in the companionship, care, custody and management of [E.L.]' [citation], and to 'ensure' " the court considered " 'all legitimate views, evidence, and interests'...." (Ibid.) Thus, the grandmother had standing to participate in the proceedings.
Contrary to Felipe's assertion, the court did not find the grandmother was E.L.'s "parent." Instead, it properly recognized the grandmother was the only adult who fulfilled a parental role in E.L.'s life. This is precisely why the court gave the grandmother de facto parent status.
IV
Felipe challenges the sufficiency of the evidence to support the court's finding that placing E.L. with him would be detrimental to her. He asserts: (1) there was no evidence E.L. was at risk of serious, long-term emotional harm if custody changed from the grandmother to Felipe; and (2) E.L.'s strong bond with her grandmother and siblings was not an appropriate basis on which to deny him placement. In its respondent's brief, Department joins in these arguments.
In her respondent's brief on behalf of E.L., minor's counsel requests this court affirm the judgment so that E.L. can stay with her grandmother and siblings, whom she considers her family, and with whom she has lived her entire life. Minor's counsel also believes ongoing visitation and contact would be in E.L.'s best interests.
A
Under section 361.2, subdivision (a), the court must place a dependent child with a noncustodial, nonoffending parent who requests custody, unless the placement would be detrimental to the child's safety, protection, or physical or emotional well-being. The juvenile court must make its finding of detriment by clear and convincing evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) Because "detriment" has no clear-cut meaning, courts making placement decisions must have flexibility based on facts unique to each child and parent. (See Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 66.) The overriding concern for the court is the minor's best interests. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
In evaluating detriment, the court is entitled to consider the emotional impact its placement decision has on the minor. (In re Luke M., supra, 107 Cal.App.4th at pp. 1425-1426.) A finding of detriment for purposes of deciding placement with a nonoffending, noncustodial parent need not be related to parental conduct. (Id. at p. 1425.) "In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child. [Citation.]" (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.) The court may also evaluate the appropriateness of keeping siblings together when making its detriment finding. (Luke M., at p. 1422.)
When the court's findings as to detriment are challenged on appeal, we consider the record favorably to the order and determine whether there was substantial evidence from which a reasonable trier of fact could make the findings by clear and convincing evidence. (In re Luke M., supra, 107 Cal.App.4th at p. 1426; In re Austin P. (2004) 118 Cal.App.4th 1124, 1134.) In this regard, we do not reweigh the evidence or express an independent judgment on it. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860; In re Nada R., supra, 89 Cal.App.4th at p. 1177.) We affirm the order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here, the evidence showed it would be detrimental to E.L.'s emotional well-being if she were removed from her grandmother's home and placed with Felipe. E.L., who was seven years old at the time of the six-month review hearing, had lived with her grandmother and siblings her entire life, was strongly bonded to them and considered them to be her family. She is thriving in that home, where she derives stability and comfort. E.L. repeatedly said she wanted to continue living with her grandmother and siblings, and she would be sad if she could not live with them. Although E.L.'s placement preference to remain with her grandmother and siblings was not determinative, it was relevant to the court's exercise of its duty to protect E.L. as a dependent child and to assure her placement was consistent with her best interests. (See In re Luke M., supra, 107 Cal.App.4th at p. 1426 [although detriment finding cannot be based on minor's preference alone, court may consider that preference in weighing minor's best interests].)
According to DiManno's bonding and attachment evaluation, E.L.'s strong attachment to her grandmother and siblings caused her to fear being separated from them permanently. E.L. said she enjoyed visits with Felipe but did not want to live with him. She did not want Felipe to know this because she was afraid he would get angry. E.L. had shown some distress when separated from her grandmother and siblings during weekend visits with Felipe, and DiManno believed permanently removing her from the grandmother's home "would further damage her...." He also believed E.L.'s best chances of developing a positive relationship with Felipe required that she remain with her grandmother and siblings without an implied threat of separation from them. Further, E.L.'s CASA, whose role was to independently assess E.L.'s best interests, believed it would be detrimental to her to be removed from the only family she had ever known. Although the social worker believed it would not be detrimental to E.L. to be placed with Felipe, the court was entitled to find other evidence more credible and determine E.L.'s emotional well-being required that she remain with her grandmother and siblings. We cannot substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
The undisputed evidence shows E.L. enjoys and benefits from frequent visits with Felipe, who is an appropriate and loving parent, and whose parental rights remain intact. However, in making its detriment evaluation, the court could properly consider factors extraneous to Felipe in finding a placement with him would impair E.L.'s emotional security. (In re C.C., supra, 172 Cal.App.4th at p. 1490.) Substantial evidence supports the court's detriment finding. (In re John M. (2006) 141 Cal.App.4th 1564, 1569; In re Shelley J. (1998) 68 Cal.App.4th 322, 329-330.)
V
Felipe contends reunification services were inadequate because the court did not allow him more visitation with E.L. He asserts the court, by denying his request for more and longer visits, deprived him of the opportunity to show it was not detrimental to E.L. to be placed with him.
A
Visitation is an essential component of reunification. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) The juvenile court defines a parent's visitation rights by balancing the parent's interests in visitation with the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) The court may impose restrictions on parental visitation, consistent with the child's best interests, based on the particular circumstances of the case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009.) The state's interest in assuring the best interests of the child justifies any limited intrusion on a parent's right to visitation. (In re Melissa H. (1974) 38 Cal.App.3d 173, 175.)
The court has broad discretion in making visitation orders, which we review for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our judgment for that of the juvenile court. (Stephanie M., at pp. 318-319; In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
B
From the time Felipe became involved in the proceedings, he had frequent visits with E.L., including overnight and weekend visits. A visitation schedule, to which Felipe agreed, was implemented. If Felipe believed the visitation schedule was interfering with his ability to regain custody of E.L., he had the assistance of counsel to ask the court to order more or longer visits. " ' "The law casts upon the party the duty of looking after his legal rights and of calling the [court's] attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." [Citation.]' [Citation.]" (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Because Felipe agreed to the visitation schedule and did not complain when he believed his visits were being curtailed, he has forfeited the right to assert error on appeal. (In re Anthony P. (1995) 39 Cal.App.4th 635, 640-641 [appellant waived right to assert error as to sibling visitation on appeal by not properly raising the issue in the juvenile court].)
At the time the court ordered visitation in accordance with the parties' schedule, Felipe's counsel said "perhaps in the future we can work out more extended visits for [Felipe]." Nothing in the record indicates Felipe asked to change the visitation schedule or that the court denied him the right to do so.
At the time the court terminated services and set a section 366.26 hearing, Felipe objected to a finding that Department offered or provided reasonable services. He made no specific mention of inadequate visitation. In his reply brief, Felipe states he "is not arguing that the Department failed to provide him with reasonable visitation." Instead, he believes the court somehow interfered with his right to reunify with E.L.
Even if Felipe had preserved the issue for appeal, he points to nothing in the record to support his claim the court precluded the social worker from expanding his visitation or that the court never intended to allow him to reunify with E.L. Moreover, Felipe cannot show more or extended visits would have resulted in the court placing E.L. with him. Felipe was absent for the first five years of E.L.'s life. Although E.L. enjoyed visits with Felipe and sometimes said she wanted to live with him, she ultimately expressed her preference to remain with her grandmother and siblings, while continuing to visit Felipe. As we previously held, substantial evidence supports the court's finding it would be detrimental to E.L. to be placed in Felipe's custody. In this regard, Felipe's failure to obtain custody of E.L. was not attributable to any error by the court with respect to reunification services.
When Felipe asked the court if he could have a Saturday visit so E.L. could attend a family get-together, the court agreed and told the parties to make those arrangements.
We further note that when the court selected guardianship as E.L.'s permanent plan, it ordered visitation for Felipe as set forth in the visitation schedule previously agreed to by the parties in mediation. Counsel for Felipe stated Felipe would like to have increased visitation with E.L. and asked the court for guidance on the mechanism by which he could make this request. The court explained Felipe could bring a motion in probate court, or the parties could return to mediation. The court then issued an order for the mediator to provide further services at the request of the parties regardless of the status of the case. Thus, Felipe is not foreclosed from having more or extended visits with E.L.
VI
Felipe contends the court erred by taking judicial notice of its decision in an unrelated case. He asserts he was prejudiced by the court's improper consideration of the truth of hearsay statements contained in the family court case of Felipe's former girlfriend Ericka.
A
At the six-month review hearing, the court disclosed it currently had under submission a family court case involving Felipe's then live-in girlfriend Ericka and her former husband. The court noted the case contained "allegations that could be relevant to some of the issues raised, which the parties here apparently are not aware of." Felipe asked the court to recuse itself, but the court declined. The court noted the facts and allegations in Ericka's family court case were a matter of public record, and it preferred the parties to have access to the same information the court had.
At a continued hearing, minor's counsel asked the court to take judicial notice under Evidence Code section 452, subdivision (d) of its intended statement of decision in Ericka's family court case. The court's statement of decision addressed whether Ericka or her former husband should have primary custody of their two minor children. It described the couple's hostile relationship and the allegations they made against each other. One of those allegations was that "[Ericka's former husband] is critical of [Ericka's current boyfriend Felipe], describing him as 'a known drug dealer' but providing no evidence to support this allegation." The court found in favor of the former husband as the more stable and consistent parent.
In support of the request for judicial notice, minor's counsel argued the decision was relevant to E.L.'s placement because E.L. has visits in Felipe's home where Ericka lives. Felipe's counsel objected, explaining Felipe and Ericka were no longer in a relationship and, thus, Ericka's case was irrelevant. Felipe's counsel also objected on the ground it was improper to take judicial notice of the truth of hearsay statements in the court's decision. The court stated that in light of the new information that Felipe and Ericka no longer lived together, Ericka's family court case now had less relevance and was less probative of any pending issues in the dependency case. The court ruled because its statement of decision in Ericka's case had "limited value" and some relevance to the basis for Department's opinions, it was subject to judicial notice.
B
Judicial notice may be taken of the records of any federal or state court. (Evid. Code, § 452, subd. (d).) A court may not, however, take judicial notice of the truth of hearsay allegations in every document of a court file, such as pleadings, affidavits, testimony or statements of fact. (In re Tanya F. (1980) 111 Cal.App.3d 436, 440; Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 418.) Nevertheless, judicial notice can properly be taken of the existence of each document in a court file, as well as the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. (Tanya F., at p. 440; In re Amber D. (1991) 235 Cal.App.3d 718, 724.)
Here, the court was entitled to take judicial notice of the truth of facts in its statement of decision in Ericka's family court case, which functioned as a judgment. As the court noted, that document was relevant to E.L.'s placement with Felipe, but less relevant in light of changed circumstances showing Ericka was no longer a part of Felipe's household. The relevance of the court's statement of decision affected the weight of the evidence, not its admissibility. We presume the court acted according to its stated intent to judicially notice its statement of decision for the proper purpose of determining E.L.'s best interests. (See In reAmber D., supra, 235 Cal.App.3d at p. 724.)
VII
Felipe contends he was denied his right to a fair trial by an impartial judge. He asserts the judge improperly acted as an advocate, and the judge's "personal knowledge of disputed facts [relating] to the case and the parties" resulted in bias against him, requiring reversal of the judgment.
A
Code of Civil Procedure section 170.1, subdivision (a)(1)(A) provides grounds for disqualification of a judge who "has personal knowledge of disputed evidentiary facts concerning the proceeding." The determination of a judge's disqualification is not appealable and may be reviewed only by a writ of mandate. (Code Civ. Proc., § 170.3, subd. (d).) As Felipe concedes, he did not file a write of mandate and, thus, he has forfeited his statutory right to disqualify the juvenile court judge for bias. (See People v. Mayfield (1997) 14 Cal.4th 668, 811 [petition for writ of mandate is exclusive method for obtaining review of denial of judicial disqualification motion].) However, Felipe claims he is entitled to assert on appeal a violation of his due process right to an impartial judge.
B
The parents in a dependency proceeding "are entitled to a fair hearing with an impartial arbiter, both in fact and in reality, and that means the provision of a [judicial officer] who does not assume the functions of advocate." (Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 903.) Nevertheless, "[i]t is well within the province of the judge to ask a witness questions, particularly when the judge is the fact finder. (Evid. Code, § 775.)" (In re S.C. (2006) 138 Cal.App.4th 396, 423.) The due process guarantee to an impartial adjudicator focuses on whether "the probability of bias on the part of a judge is so great as to become 'constitutionally intolerable.' [Citation.] The standard is an objective one." (People v. Freeman (2010) 47 Cal.4th 993, 1001.)
C
Felipe's complaints of a due process violation focus primarily on the judge's comments, made while he questioned the social worker, concerning the possibility Felipe was a drug dealer. However, our reading of the record does not indicate the judge believed Felipe was a drug dealer, nor does it show the probability of bias was so great as to become constitutionally intolerable. (People v. Freeman, supra, 47 Cal.4th at p. 1001.) In other words, "this case does not present the 'extreme facts' that require judicial disqualification on due process grounds." (Id. at p. 996.)
The judge's questions, posed to the social worker, were meant to clarify the basis for Department's recommendation to have E.L. placed with Felipe. The judge asked the social worker how thoroughly she had investigated allegations, made by Ericka and her former husband, that Felipe was involved in drug trafficking. The judge also asked the social worker about statements in her report that Felipe and Ericka were in a stable relationship, and E.L. had a parental relationship with Ericka. Ultimately, however, the judge found these issues were "red herrings, " because Felipe no longer had a stable home and relationship with Ericka. Nothing in the record indicates the judge's decisions were influenced by a belief that Felipe was a drug dealer. Indeed, the judge praised Felipe for doing everything he could in the past 18 months to "step up" as a parent, but found E.L.'s strong life-long bond to her grandmother and siblings made it detrimental to remove her from that home.
The judge did not act as an advocate, and his comments cannot be interpreted as a biased effort to obtain a particular result in the case. In any event, the judge's comments would not justify reversal by any standard of prejudice. (In re Eric B. (1987) 189 Cal.App.3d 996, 1008; People v. Freeman, supra, 47 Cal.4th at p. 1006.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McINTYRE, J.