Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK72972, Elizabeth Kim, Referee.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant Crosby M.
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant Tyler M.
KLEIN, P. J.
Crosby M. (father) and his now five-year-old son, Tyler M., appeal orders of the juvenile court asserting dependency jurisdiction over Tyler M. under Welfare and Institutions Code section 300, subdivisions (b) and (j), ordering Tyler M. removed from father’s care and directing that father have monitored visitation with Tyler M. upon father’s release from custody.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
We conclude the jurisdictional and removal orders are supported by substantial evidence and that father forfeited the right to challenge the visitation order by failing to object to the order in the juvenile court.
FACTS AND PROCEDURAL BACKGROUND
1. The initial assertion of dependency jurisdiction over Tyler M.
Tyler M. initially came to the attention of the Department of Children and Family Services (the Department) in May of 2008 due to domestic violence between father and Tyler M.’s mother and histories of substance abuse by Tyler M.’s mother and father.
The detention report indicated father had been released from prison in December of 2006. Father admitted he was on parole for domestic violence involving Tyler M.’s mother and possession of a controlled substance. Father was attending anger management and a drug treatment program. Father’s parole officer, Armando Valenzuela, stated father had been participating in random drug tests. Father indicated his drug tests had been clean with the exception of a positive marijuana test four or five months ago. Father stated he had a prescription for marijuana but had discontinued its use at the request of his parole officer.
At the detention hearing, the juvenile court released Tyler M. to father.
In the jurisdiction report father admitted a misdemeanor domestic violence conviction involving Tyler M.’s mother. The report indicated father has a history of “lengthy periods of incarceration and involvement with the legal system....” Although father is now involved in appropriate services and appears to be willing and able to accept placement of Tyler M., his lengthy history of drug abuse and criminal activity caused concern regarding his ability to remain sober and continue his functional life.
The sustained petition alleged father and Tyler M.’s mother have a history of violent physical altercations and on one prior occasion, father was arrested and charged with domestic violence against Tyler M.’s mother. The petition also alleged father has a history of marijuana abuse which renders father incapable of providing regular care and supervision. At disposition, the juvenile court declared Tyler M. a dependent child and placed him with father. The juvenile court ordered the Department to provide family maintenance services to father.
2. Compliance with the initial case plan; birth of Myles.
The Department reported Tyler M. was well cared for in father’s custody and was attached to father. A progress report from father’s individual counseling case manager stated father “has continued to have difficulty... with group attendance and group cohesion. [Father] has been given several opportunities to deal with this issue and manages to do so for short periods of time but eventually reverts back to his old ways of being oppositional, disrespectful and negative which erodes... the entire group.”
In September of 2008, parole officer Valenzuela stated father had dropped out of a mandated batterers program and a drug program in July of 2008. However, father reenrolled in the drug program and individual counseling, was attending three times a week and was doing well. In December of 2008, father’s case manager indicated, “He has completely changed this time and took things differently.”
On March 10, 2009, parole officer Valenzuela reported father was a suspect “in a serious robbery and is going to go to prison.” The social worker visited Tyler M. at father’s home and found Tyler M. well cared for and very attached to father.
On March 23, 2009, Northridge Hospital advised the social worker that father’s girlfriend, J.M., had given birth to baby Myles 10 days earlier. The reporting party indicated nurses stated father was “mixing up drinks and became intoxicated during the delivery.” The next day, father was sleeping in J.M.’s room with a blanket over his head and declined to speak to the reporting party. J.M. had tested positive for drugs when she was two months pregnant and admitted using methamphetamine and marijuana.
On March 30, 2009, father contacted the social worker, admitted a warrant had been issued for his arrest and admitted he is being “charged with a robbery that happened in Wal-Mart last month.” Father intended to turn himself in and asked the social worker to place Tyler M. with his girlfriend, J.M., and, if that were not possible, with paternal grandmother.
An interim review report filed April 29, 2009 indicated father’s plan for Tyler M.’s care while father was incarcerated was placement with paternal grandmother. Father executed an affidavit so indicating. Father further advised the social worker J.M. would watch Tyler M. during the day when paternal grandmother was at work.
3. The death of Myles; the Department files a supplemental petition.
On June 1, 2009, Myles was found to be not breathing while in the care of father and J.M. Myles was transported to the hospital where he was pronounced dead. It was reported that Myles had been sleeping on a soft pillow in the same bed as his parents when he was found in pulmonary arrest.
The Department filed a supplemental petition which alleged Tyler M. was a dependent child within the meaning of section 300, subdivisions (a), (b) and (j). The detention report indicated that on the afternoon before Myles died, father passed out while at a market and was taken to the hospital. At the hospital, father denied drinking alcohol or using drugs and declined medical attention. Father left the hospital against medical advice, thereby demonstrating poor judgment.
The report further indicated that, after Myles was pronounced dead at the hospital, father became violent and was arrested on the outstanding warrant. The Department detained Tyler M. from father due to caretaker absence and concerns that father failed to address his own medical issues, thereby placing Tyler M. at risk. The Department placed Tyler M. in paternal grandmother’s care. The detention report indicated J.M. provided an invalid/highly diluted drug test result and may have been intoxicated at the time Myles died. J.M.’s three surviving children were detained.
4. The coroner’s report.
The corner reported the cause of death as undetermined. The report indicated Myles had no known medical problems and there was no report of trauma. The baby was sleeping on a pillow that had been placed between his parents. He was discovered with his face against the pillow. “The parents denied medication, alcohol or drug use, but it was questioned whether the father was impaired.” The investigator’s narrative section of the coroner’s report indicated two detectives and the coroner’s investigator spoke to father at paternal grandmother’s home. One of the detectives asked father to drug test but father declined. Father stated he last used alcohol two days earlier when he drank two beers. He has not used marijuana because he could not afford it. Father indicated the family moved into the home of paternal grandmother three weeks earlier. The day before the child’s death, the family attended a birthday party where father cared for the children and swam with them. Father claimed he drank too much soda and not enough water but denied alcohol or substance abuse. After the party, the family stopped at a market. While in the checkout line, father fainted. Paramedics took father to the emergency room where he was given water and felt better so he signed himself out against medical advice. Father explained he could not afford medical bills. Father indicated he has no medical problems and has never fainted in the past. Father stated he left home later that night to visit a friend but the friend was not at home and father returned home at approximately 10:45 p.m. Father put Myles on a pillow in the center of the bed next to J.M. who was asleep. Father prepared a bottle anticipating Myles would awaken during the night to be fed. Father and J.M. slept under the covers and Myles was on top of a comforter on the pillow. Father had no additional contact with the baby until J.M. awakened him.
J.M. told the investigator she hid the car keys after father returned from the hospital because she did not want father driving after he had fainted. J.M. stated father had not used any alcohol or drugs and was not behaving as though he had used drugs. However, father had a prescription for Xanax and J.M. was unsure if he had taken the medication. J.M. discovered the baby was not breathing when she spontaneously awakened because the baby had not cried to be fed.
5. Proceedings on the subsequent petition
At the detention hearing, the juvenile court ordered father to have no visits while he was in custody and monitored visitation after he was released. Father’s counsel objected to the order and noted father currently was housed locally at the Men’s Central Jail. Further, father anticipated being sentenced to time served in the underlying misdemeanor matter. However, father also faced the possibility of parole revocation and was uncertain as to the amount of time he would spend in prison. Counsel asked the juvenile court not to make an order for no visitation and noted father might be incarcerated for as much as a year. In response, the juvenile court indicated the no visitation order would remain in effect only until the next hearing.
The jurisdiction report indicated that on June 18, 2009, the social worker interviewed father at Men’s Central Jail. Father said he felt horrible about the death of Myles and would never again put an infant in the same bed with adults. Father admitted he stole an object from Wal-Mart with a friend and indicated he expected to be released from prison in March of 2010 but that term might be extended based on a violation of parole. Father claimed he had been drug-free for three years and stopped going to his drug program only because there was a warrant outstanding for his arrest. When asked why he refused to drug test for the police and hospital staff, father replied, “You have been my social worker for a while and if you asked me to drug test I would, but I did not think they had a right to ask me to drug test. They don’t know me or have [a] right to suspect that I am on drugs.”
6. Adjudication and disposition of the subsequent petition.
On July 8, 2009, the juvenile court adjudicated the subsequent petition. Father and Tyler M. requested dismissal of the petition, arguing it failed to demonstrate a current risk of harm to Tyler M. Counsel noted Myles’s cause of death was undetermined and there was no evidence father was impaired by alcohol or drug abuse at the time of the death.
County counsel responded father admitted he drank alcohol in the afternoon, passed out at a market and had to be taken to the hospital. Even after these events, father placed infant Myles on a pillow between himself and J.M., thereby demonstrating negligence.
The juvenile court took the matter under submission and dismissed an allegation under section 300, subdivision (a), but sustained allegations under section 300, subdivisions (b) and (j). The juvenile court stated it appreciated father’s position this was a tragic event and Tyler M. is four years old whereas Myles was an infant but found “there is a risk that Tyler M. would suffer serious physical harm as a result of the parent’s failure or inability to adequately supervise and protect him.” The juvenile court found the “evidence does show that on the date of the baby’s death that the father was intoxicated.” The juvenile court indicated “there is a concern with respect to the father’s ability to properly supervise the child.”
As sustained, the subsequent petition alleged father “established a detrimental and endangering situation for the child’s now deceased sibling, Myles..., in that father placed... Myles... in an unsafe sleeping arrangement in that father caused the three month old child to sleep in the bed with the father and the father’s female companion[, ]... resulting in the sibling’s death. Such a detrimental and endangering sleeping arrangement established for the child’s sibling on the part of the father endangers the child’s physical and emotional health, safety and well-being, creates a detrimental home environment and places the child at risk of physical and emotional harm, damage and danger.”
The juvenile court found substantial danger to Tyler M.’s physical health and emotional well-being if the child were returned and no reasonable means by which to protect the child absent removal from father’s custody. The juvenile court ordered Tyler M. placed in the home of paternal grandmother and ordered father to participate in parent education, drug rehabilitation with random testing, and individual counseling to address anger management issues. The juvenile court ordered, “Visits for the father will be monitored after he is released from custody.”
Father’s counsel asked that the Department be “ordered to provide those services being mindful of father’s place of incarceration.” The juvenile court responded affirmatively.
CONTENTIONS
Father and Tyler M. contend the evidence does not support the jurisdictional findings on the subsequent petition or the order removing Tyler M. from father’s care. Father additionally contends the visitation order must be reversed.
DISCUSSION
1. The evidence supports the jurisdictional findings.
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.) Under this standard, we resolve all conflicts in the evidence in favor of the respondent and draw all reasonable inferences in support of the judgment. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
A finding of current risk of harm is required for jurisdiction under section 300, subdivision (j). (In re Carlos T. (2009) 174 Cal.App.4th 795, 803; In re Joshua J. (1995) 39 Cal.App.4th 984, 992, fn. 6.) It is not required for the initial assertion of dependency jurisdiction under section 300, subdivision (b). (In re Adam D. (2010) 183 Cal.App.4th 1250, 1261.) However, that point is not in issue here. We therefore also test the jurisdiction finding under section 300, subdivision (b) for a current risk of harm.
Section 300, subdivision (j), provides dependency jurisdiction is appropriate where: “The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
Section 300, subdivision (b), provides dependency jurisdiction is appropriate where: “The 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 his or her parent or guardian to adequately supervise or protect the child..., or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s... substance abuse.... The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”
Father and Tyler M. contend the accidental death of Myles did not support a finding Tyler M. was at substantial risk of serious physical harm in father’s care. Moreover, even if father’s conduct toward Myles was negligent, there was no evidence Tyler M. was at risk at the time of the hearing. They note there was no evidence father had ever intentionally harmed either Tyler M. or Myles. Further, Tyler M. was a healthy four-year-old and was not as vulnerable as three-month-old Myles. They conclude that, absent evidence of an ongoing substance abuse problem that prevented father from caring for Tyler M., the order sustaining the subsequent petition must be reversed.
We do not find this argument persuasive and conclude the juvenile court properly found Tyler M. was at substantial risk of harm due to father’s demonstrated lack of judgment, the most recent manifestation of which resulted in the death of Myles. We start by observing Tyler M. was the subject of dependency proceedings commencing in May of 2008 due to father’s domestic violence with Tyler M.’s mother and father’s drug abuse issues. The record indicates father was released from prison in December of 2006 and was on parole throughout the pendency of these proceedings. Father’s performance under the family maintenance services initially was inadequate. He dropped out of drug and individual counseling programs shortly after he enrolled. Father’s participation improved for a few months. However, in March of 2009, father’s parole officer issued a warrant for father’s arrest based on the allegation father had committed a robbery at Wal-Mart. A few days after the issuance of the arrest warrant, nurses reported father was intoxicated and mixing drinks in the hospital when Myles was born.
Although father refers to this offense as shoplifting, his parole officer referred to the case as a “serious robbery.” It thus appears likely the incident initially was a theft but escalated into a robbery when father and his friend used force or fear to retain stolen property. (See People v. Estes (1983) 147 Cal.App.3d 23, 28.)
Although father was aware of the arrest warrant and planned to have paternal grandmother care for Tyler M. while father was in custody, father delayed surrendering on the warrant. On March 31, 2009, father attended a family outing and, on the way home, passed out in a market and was taken to the hospital. Father denied he had used drugs or alcohol and signed himself out of the hospital. That evening, J.M. hid the car keys from father to dissuade him from driving. Father nonetheless left the home for a few hours and, when he returned, he put Myles into bed and permitted the infant to sleep between himself and J.M., resulting in the death of the child. When police detectives and a coroner’s investigator came to the home, father refused to drug test. J.M. provided a drug test which indicated she may have been intoxicated at the time Myles died.
Given that father was on parole, was drug testing as a condition of parole and was attending a drug program in connection with the dependency proceedings, we readily conclude father was aware that a failure to drug test is considered a dirty test. Here, father did not merely fail to appear for a test but refused a request for a drug test. Father’s refusal to drug test after the death of Myles clearly supported the juvenile court’s finding father was intoxicated the day before Myles’s died.
This finding, combined with father’s lack of judgment in placing Myles in bed between two adults, both of whom were likely impaired and one of whom had fainted earlier in the day, evidenced father’s poor judgment and his inability to determine what would be safe and age-appropriate for a child. This lack of judgment supported the inference Tyler M. would be at substantial risk of neglect in father’s care. The fact that Tyler M. is older than Myles and likely will not suffocate as Myles did does not mean Tyler M. will not be at risk of harm in father’s care. Rather, the record makes it apparent that father continues to involve himself in drug abuse, has not adequately addressed the issues that caused Tyler M.’s initial dependency and, as a consequence, is unable to adequately care for and protect Tyler M.
Tyler M. asserts poor judgment by a parent alone is insufficient to justify assertion of dependency jurisdiction. Tyler M. compares this case to In re James R. (2009) 176 Cal.App.4th 129, 136-137 and In re David M., supra, 134 Cal.App.4th at pp. 829-830. In James R., jurisdiction under section 300, subdivision (b), was reversed because there was no evidence the children were at risk of serious physical harm despite the mother’s mental instability and alleged substance abuse. In David M. mother used drugs while pregnant with one child and did not receive prenatal care. However, both children tested negative for drugs at birth and there was no showing mother’s delusional mental disorder or father’s mental problems placed the children at substantial risk of serious physical harm. Here, the refusal of father to drug test after the death of Myles underscores the many distinguishing differences between the cited cases and the case before us.
Nor is this case comparable to the single lapse of judgment unlikely to recur presented in In re J.N. (2010) 181 Cal.App.4th 1010, 1026. Father’s conduct was not a single lapse of judgment but a course of conduct exacerbated by drug abuse that placed Tyler M. at risk of harm. Indeed, father had a history of poor judgment which culminated in the death of Myles.
Tyler M. next claims the Department did not allege father’s poor judgment as a basis for jurisdiction and the juvenile court may not consider unalleged actions in making its jurisdictional finding. (In re J.O. (2009) 178 Cal.App.4th 139, 152, fn. 13.) However, the allegations of the subsequent petition directly called father’s judgment into question and merely specified the most recent incident of neglect which resulted in the death of Myles. The juvenile court specifically found “a risk that [Tyler M.] would suffer serious physical harm as a result of the parent’s failure or inability to adequately supervise or protect him.” The juvenile court also indicated “there is a concern with respect to the father’s ability to properly supervise this child.” Because this finding is supported by the record, the juvenile court properly sustained the allegations under section 300, subdivisions (b) and (j) based on father’s conduct in establishing a detrimental and endangering situation which led to the death of Myles.
2. Substantial evidence supports the removal order.
In order to remove a child from a parent, section 361, subdivision (c)(1) requires the juvenile court to find, by clear and convincing evidence, 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).) We apply the substantial evidence test on review of a removal order. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433; In re Sheila S. (2000) 84 Cal.App.4th 872, 880-881.)
Father and Tyler M. contend Tyler M. was not at risk of harm in father’s care and father made an appropriate plan for Tyler M.’s care which was adopted by the Department when it placed Tyler M. with paternal grandmother. Father and Tyler M. note section 361, subdivision (c)(5) permits a child to remain in the custody of a parent who has been incarcerated if the parent has made arrangements for the child’s care. Thus, the Department had to prove by clear and convincing evidence father was unable to arrange for Tyler M.’s care before the juvenile court could remove the child. (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 5.)
Father and Tyler M. complain the Department improperly concluded father’s plan for the care of Tyler M. was no longer appropriate because J.M. could not serve as Tyler M.’s day care provider. They assert the Department failed to give father an opportunity to select a different day care provider and there was nothing to suggest paternal grandmother could not have made other day care arrangements. However, Tyler M. was not removed from father’s care merely because father made inappropriate arrangements for Tyler M.’s care while father was in custody. Rather, it was father’s involvement in the death of Myles which triggered independent grounds upon which to detain Tyler M. The fact the Department placed Tyler M. in accordance with father’s previous arrangement does not mean Tyler M. should not have been detained.
Tyler M. further notes the juvenile court failed to state the factual basis for its removal order and such findings will be implied only where the evidence is clear. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1825.) However, as noted in connection with the discussion of the sufficiency of the evidence to support the jurisdictional findings, the juvenile court found father was unfit to care for Tyler M. It follows from this finding that Tyler M. was a substantial risk of harm in father’s care.
Tyler M. also urges the juvenile court failed to consider alternatives to removal such as in-home family preservation services or an order conditioning custody of Tyler M. on father’s participation in substance abuse counseling. (In re Henry V. (2004) 119 Cal.App.4th 522, 529.) This argument overlooks that Myles died while father was being provided family maintenance services. Thus, the record reflects the juvenile court already had implemented alternatives to removal which had proved unsuccessful.
In sum, the order removing Tyler M. from father’s care finds substantial support in the record.
3. Father forfeited any error in the juvenile court’s visitation order.
At the disposition hearing, the juvenile court granted father family reunification services then ordered, “Visits for father will be monitored after he is released from custody.”
Father construes this order as one for no visitation until father has been released from custody and argues it violates the rule that visitation is mandatory except where it might jeopardize the child’s safety. (In re C.C. (2009) 172 Cal.App.4th 1481, 1489-1491.) Further, reunification services for an incarcerated parent must include visitation where the prison allows visitation and is not excessively distant. (In re Jonathan M. (1997) 53 Cal.App.4th 1234, 1237-1238, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Father argues the juvenile court made no finding visitation would jeopardize Tyler M.’s safety and requests reversal of the order.
Case law has established that in dependency proceedings, absent certain circumstances, visitation must be provided to an incarcerated parent. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1010.) As noted in Christopher H., the general visitation statute provides visitation between parent and child must be “as frequent as possible, consistent with the well-being of the child.” (§ 362.1, subd. (a)(1)(A).) Additionally, when a juvenile court provides family reunification services to an incarcerated parent, it must “order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.” (§ 361.5, subd. (e)(1).) Under section 361.5, subdivision (e)(1), the services provided to an incarcerated parent may include maintaining contact through telephone calls, transportation services where appropriate, visitation services where appropriate, and reasonable services to the child’s caretakers. (§ 361.5, subd. (e)(1)(A)-(D).)
Initially, we note the juvenile court did not order no visitation for father while father remained incarcerated. Rather, the juvenile court ordered monitored visitation after father’s release from custody. In contrast, at the detention hearing, the juvenile court ordered “no visits” for father while he remained in custody and monitored visitation thereafter.
However, even if we construe the juvenile court’s failure to address visitation during father’s incarceration as an order for no visitation, father failed to preserve the issue for appeal by objecting to the order when it was made. Father’s failure to object at the disposition hearing is noteworthy, given that father objected at the detention hearing when the juvenile court ordered no visitation. In response to that objection, the juvenile court limited the duration of the order to the next hearing. The record on appeal contains no indication father thereafter asked the social worker to arrange visitation or asked the juvenile court to order visitation. Given that father previously objected to a no visitation order made at detention, we find the failure to object to the disposition order significant and conclude father has forfeited the issue on appeal by failing to raise it in the juvenile court, thereby depriving the juvenile court of an opportunity to explain its ruling. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Having found the issue forfeited, we need not address the Department’s further assertion the issue currently is moot by reason of father’s anticipated release from custody in February of 2010.
We previously granted the Department’s request to take judicial notice of a minute order dated December 21, 2009, and an interim review report dated December 21, 2009, which indicate father anticipated release from prison on February 26, 2010. Based on this evidence, the Department asserts it is likely the visitation issue will be moot by the time this court renders a decision in this case. Father did not object to the Department’s request for judicial notice but argued the denial of visitation during father’s incarceration is not rendered moot by reason of father’s anticipated release from custody. (See In re Dylan T. (1998) 65 Cal.App.4th 765, 769-770.)
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: CROSKEY, J., KITCHING, J.