Opinion
F061059 Super. Ct. No. JJV050673B-99
10-21-2011
In re JONATHAN R., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. IVETTE R., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Jason G. Chu, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Charlotte A. Wittig, Commissioner.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel, and Jason G. Chu, Deputy County Counsel for Plaintiff and Respondent.
Ivette R. (mother) challenges the juvenile court's jurisdictional findings and dispositional orders removing the minor Jonathan from her care. We find no error and affirm.
FACTUAL AND PROCEDURAL HISTORY
Mother was arrested on January 27, 2010, on outstanding warrants and for providing law enforcement with false identifying information. At the time, mother was eight-year-old Jonathan's sole provider. Mother refused to provide law enforcement and the Tulare County Health and Human Services Agency (the Agency) with the name of Jonathan's father. Attempts by law enforcement to contact Jonathan's maternal grandmother were unsuccessful. Mother could not remember her sister's last name and did not have an address for her.
A Welfare and Institutions Code section 300 petition was filed alleging, pursuant to subdivision (g), that mother was incarcerated and unable to care for Jonathan or to make arrangements for his care. The petition also alleged, pursuant to subdivision (j), that mother had failed to reunify with Jonathan's sibling, Joseph, whom the juvenile court found mother previously neglected.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
At the detention hearing, Jonathan was detained and mother agreed to participate in parenting classes, and to submit to alcohol and drug testing. Mother informed the juvenile court that Paul H. (father) was Jonathan's father. The court indicated that it found him to be the biological father, but reserved a paternity finding subject to confirmation of a child support judgment.
In the jurisdiction/disposition report filed in anticipation of the hearings, mother told the social worker that she had intended to take care of her warrants but didn't because she knew she would have to do jail time and would not have anyone to care for Jonathan. Mother insisted that she was a good mother and was doing better with getting
Jonathan to school, but at least one of mother's bench warrants was for failure to appear at a hearing regarding Jonathan's excessive absences and tardiness at school. Mother had a previous arrest for driving under the influence.
The social worker noted that in 2007 and 2008 there were allegations that mother's live-in boyfriend, Samuel G., committed domestic violence toward her and physical abuse towards Jonathan. Mother claimed she was no longer in a relationship with Samuel but, on the day she was arrested, she requested that Jonathan be placed with him and stated that he had been her boyfriend for five years.
The social worker spoke with father, who said he did not discover he was Jonathan's father until a paternity test was completed in 2007. According to father, he paid mother child support, spoke to Jonathan over the phone, and received from mother pictures and written correspondence over the years relating to the minor. Father, who lived in New York, requested Jonathan be placed with him. Father admitted having a criminal history, and a records check revealed that he was incarcerated from August of 2002 to December of 2005 for selling cocaine. Since then he had been employed for three years and had completed the conditions of his parole.
A default judgment of paternity for Jonathan was entered against father on November 6, 2007.
At the jurisdiction hearing held in February of 2010, father requested a judgment of parentage and the juvenile court found him to be Jonathan's biological father. The juvenile court did not enter a judgment of paternity as one was already in place. The allegation that mother was unable to care for Jonathan was dismissed because she was no longer incarcerated. The juvenile court found the remaining allegation not true, returned Jonathan to mother, and terminated the proceedings.
In early August 2010, police officers found Jonathan sleeping in a field with mother and her boyfriend. Mother told the officers that they had only spent one night outside while they waited for mother's boyfriend's sister to come home. Mother gave the officer a permanent address, but neighbors at that address stated that mother did not live there and that they had often seen mother and Jonathan sleeping in the alleyway or walking the street with blankets and pillows.
Mother took the officers to the address she claimed was her residence and used a key to gain entry. The house, which mother's boyfriend said housed five men who were field workers, smelled terrible, was dirty, had very little furniture, and the plumbing didn't work. Mother claimed she and Jonathan slept on a couch in the living room. When officers doubted that mother resided at the address, she became combative and argumentative. Mother claimed she paid $125 a month in rent but had no receipts. She was living on $326 a month in case aid and $200 a month in food stamps. Jonathan told the officers that he and mother frequently slept in the grass at night, that they ate about once a day, and he hadn't bathed in two days because there was no water in the house.
Mother claimed Jonathan had not been in school for the past two months because he had medical issues, but admitted that he had only been to the doctor once in eight months due to scabies. Mother avoided questions of drug use, but finally admitted she had used methamphetamine in November of 2009 and cocaine two years earlier. She tested negative for drug use that same day.
Jonathan was examined at the health clinic due to concerns that he might have scabies and that he had asthma but did not have an inhaler. He had blisters between his toes with mold growing on them.
The Agency received a letter from the school psychologist stating that Jonathan, a fourth grade student in a special day class program, had a significant history of poor school attendance. He often arrived hours late, had a foul odor, and smelled of cigarettes. Teachers were concerned with Jonathan's limited eating habits, that mother did not attend scheduled parent conferences, and that Jonathan's homework was never returned. Academically, Jonathan was at a kindergarten level. Jonathan had been dropped from school enrollment several times, including three times from May to June of 2010.
A section 300 petition was filed alleging, pursuant to subdivision (b), that Jonathan was at substantial risk of suffering serious physical harm due to mother's substance abuse and her failure to provide him with adequate food and shelter. The petition also alleged, pursuant to subdivision (j), that mother's neglect of Jonathan's sibling, Joseph, born in 1998, placed Jonathan at similar risk of neglect.
According to the petition, Joseph was adjudged a dependent of the court in 1999 due to mother's failure to protect him from exposure to controlled substances and her subsequent arrest. Mother did not receive family reunification services, and sole legal and physical custody of Joseph was given to his father.
Father again requested placement of Jonathan, and the social worker recommended that Jonathan be sent to New York to be with his father. At the detention hearing August 17, 2010, the juvenile court confirmed it had previously found Paul H. to be Jonathan's biological father. Jonathan was detained and mother agreed to participate in services pending adjudication, including a substance abuse evaluation, alcohol and drug testing, and a psychological evaluation.
Two days after the detention hearing, the social worker met with mother, who stated that she had a new home with her boyfriend's sister, and that her boyfriend was now working. When the social worker investigated the address mother gave as hers, mother's boyfriend's sister denied that mother or her brother lived there.
Within a week of the detention hearing, mother requested parenting classes and reported that she was attending school in the mornings. When questioned about Jonathan's school attendance, mother said he was sick and couldn't attend. Instead, she and Jonathan spent the days in the park playing, which is what Jonathan wanted to do and it was easier just to let him have his way.
A review of mother's child protective service (CPS) history revealed that mother had four other children besides Joseph and Jonathan detained due to her substance abuse and neglect. Of those children, Cecil was born in 1987 exposed to cocaine; Vanessa was born in 1988 and removed due to neglect; Stephen was born in 1992 exposed to cocaine; and Anthony was born in 1997 exposed to cocaine. Mother's parental rights were terminated on each of the four children. An amended section 300 petition was filed alleging four additional counts pursuant to section 300, subdivision (j), listing Cecil, Vanessa, Stephen, and Anthony separately.
At the jurisdiction/disposition hearing October 7, 2010, the court took judicial notice of mother's prior CPS history without objection from mother. Mother submitted on a Waiver of Rights - Juvenile Dependency form (JV-190). The juvenile court found the section 300, subdivision (b)(1) allegation concerning mother's substance abuse not true, but found true the subdivision (b)(2) allegation that mother's failure to provide Jonathan with adequate food and shelter placed him at substantial risk of physical harm or illness. The Agency requested the section 300, subdivision allegation concerning Joseph be dismissed because the court found the subdivision (b)(1) allegation not true. The juvenile court found true the remaining four subdivision (j) allegations concerning the neglect of Cecil, Vanessa, Stephen, and Anthony.
Jonathan was adjudged a dependent of the juvenile court, removed from mother and placed with father pursuant to section 361.2. Mother was not offered reunification services. The juvenile court also found, by clear and convincing evidence, that mother was described by section 361.5, subdivision (b)(10), (11), and (13) based on her own admission of drug use six months earlier.
DISCUSSION
1. Jurisdictional Findings
Mother contends that the evidence is insufficient to sustain the juvenile court's jurisdictional findings as to her. We disagree.
As this court explained in In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379, in juvenile dependency cases, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether there is any substantial evidence, contradicted or not, that will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) In this regard, issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
A. Section 300, subdivision (b)
Mother first challenges the sufficiency of the evidence to support the court's jurisdictional finding under section 300, subdivision (b). Mother contends the evidence was insufficient to establish that Jonathan "had or would have in the future, a lack of food, shelter, or personal care."
As relevant here, section 300 provides:
"Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] ... [¶]
"(b) 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 ... to adequately supervise or protect the child . or by the willful or negligent failure of the parent . to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent ... to provide regular care for the child due to the parent's . mental illness, developmental disability, or substance abuse. No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family .. "
The statute requires that a child be at substantial risk, not that the child actually suffer substantial harm, before the state can intervene. (§ 300, subd. (b).) To support a finding of jurisdiction, the Agency had to show, by a preponderance of the evidence, that Jonathan suffered, or there was a substantial risk that he would suffer, serious physical harm or illness as a result of mother's failure or inability to adequately supervise or protect Jonathan, or by her willful or negligent failure to provide Jonathan with adequate food, clothing, shelter, or medical treatment. (§ 355, subd. (a); In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319; In re Rocco M. (1991) 1 Cal.App.4th 814, 820-824 (Rocco M.).) "In determining whether the child is in present need of the juvenile court's protection, the court may consider past events." (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
Mother contends that, while past evidence supported the section 300, subdivision (b) allegation, there was insufficient evidence from the time of detention forward that Jonathan continued to be at any risk of future harm. Mother argues that, at the time of the hearing, she drug-tested negative; she was taking parenting classes and attending Alcoholics Anonymous; by September of 2010, she had a home and was able to care for Jonathan; and by October of 2010, she had obtained employment and was taking courses at an adult school.
Mother relies on Rocco M., supra, 1 Cal.App.4th at page 820 and subsequent cases to support her claim that jurisdiction was not warranted because there was no current evidence of a risk of future harm. (See also In re David M. (2005) 134 Cal.App.4th 822, 831-832.) As noted in In re J.K. (2009) 174 Cal.App.4th 1426, however, Rocco M. referred, in dicta, to what is now an outdated statute. After Rocco M. was decided, the Legislature revised the statutory language to suggest that a showing of past events may be sufficient to show future risk and thereby establish jurisdiction. (In re J.K., supra, at pp. 1436-1437.) Intuitively, risk in the future can be assessed by recourse to the past. Indeed, even the cases following Rocco M. state past abuse may be enough to establish a substantial risk of serious harm. (In re David M., supra, at p. 831, fn. 3.)
The evidence at the time Jonathan was detained was that he and mother frequently slept in the grass at night, that Jonathan had not bathed for a couple of days because the water was not working at the place mother claimed was her home, and that Jonathan usually ate once a day. At the time, Jonathan was suffering from scabies and had severe blisters on his feet, which had not been treated. Mother continually failed to get Jonathan to school in a consistent or timely manner.
The social worker's report prepared in anticipation of the September 9, 2010, jurisdiction/disposition hearing reported mother had stated that she had a home and was ready to care for her son. Additional information filed by the social worker in anticipation of the October 7, 2010, continued jurisdiction/disposition hearing stated that mother was then employed as a field laborer, that she was attending courses at the adult school, and that she provided a letter from her boyfriend's sister that she was now living with her. She also submitted Narcotics Anonymous/Alcoholics Anonymous attendance cards. The report for the September hearing, however, also stated that, in the six months Jonathan was back in mother's care after the earlier petition was dismissed in February of 2010, mother had "not maintained a stable residence for the child." Mother claimed to be living with her boyfriend's sister, but the boyfriend's sister denied mother lived there.
At the hearing on the petition, mother's counsel argued that mother had been homeless only temporarily, and that she now had housing. Counsel for the Agency and counsel for the minor both argued that mother was homeless based on interviews with mother's boyfriend, the boyfriend's sister, the neighbors at the address mother claimed to be her residence, and Jonathan. Counsel for the minor noted that Jonathan missed 82 days of school during the 2008-2009 school year, and missed 50 days and had 42 tardies during the 2009-2010 school year. Counsel described Jonathan's life as "very unstable" for the "last few years."
In finding the section 300, subdivision (b) allegation true, the juvenile court stated:
"[T]he Court wants to make clear, it's not the fact that the mother is homeless that places the child at risk; it's the condition of the child and her inability to properly care for the child and providing adequate food including the lack of consistency with his education. All of those factors together is what places this child at risk. It is not simply the fact of homelessness that places the child at risk, but how mother addresses those issues."
We find that there is substantial evidence to support the juvenile court's finding of jurisdiction pursuant to section 300, subdivision (b).
B. Section 300, subdivision (j) findings
Mother also contends that there was insufficient evidence that Jonathan was at substantial risk of harm, pursuant to section 300, subdivision (j), because "anything that occurred between the mother and the siblings [was] in the very remote past, as far back as 1987." We disagree. Because we address the issue on the merits, we need not address respondent's claim that mother has waived her right to challenge the subdivision (j) finding.
To sustain a petition alleging dependency jurisdiction over a child pursuant to section 300, subdivision (j), the juvenile court must find that at least one of the child's siblings "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." Thus, section 300, subdivision (j) requires sufficient evidence to support findings of past abuse or neglect of a sibling, as well as substantial risk that the child before the court has been or will be abused in the future. (In re Cole C. (2009) 174 Cal.App.4th 900, 916-917; In re Ricardo L. (2003) 109 Cal.App.4th 552, 566-567.)
Here, the juvenile court took judicial notice of Tulare Superior Court case Nos. J33899 and J38065, the dependency court files for Jonathan's half siblings Cecil, Vanessa, Stephen, and Anthony. Allegations (j)(2), (3), (4), and (5) were based on the abuse or neglect suffered by Jonathan's half siblings (born in 1987, 1988, 1992, and 1997) due to mother's drug use, failure to provide financial support or supervision, and her subsequent failure to complete reunification services.
Court files for Joseph were not included.
Mother does not contest the findings of past abuse, but argues that there is insufficient evidence that "anything occurring in the remote past between the mother and the siblings put Jonathan at a current risk of harm." While the juvenile court did find not true the allegation that mother's drug use rendered her unable to provide for Jonathan, it does not necessarily follow that there is now no current risk that Jonathan would be abused or neglected. As discussed above, there is sufficient evidence to support a finding of risk due to mother's inability or unwillingness to provide Jonathan with adequate shelter, care or food, and we have concluded that finding was supported by substantial evidence.
In In re David M., supra, 134 Cal.App.4th 822, on which mother relies, the mother's child Aaron had been declared a dependent child of the juvenile court because the mother used marijuana during her pregnancy and was incarcerated at the time the child was born. Some years later, a dependency petition was filed involving two-year-old David and two-day-old A. The petition alleged a failure to protect and abuse of a sibling under section 300, subdivisions (b) and (j). (In re David M., supra, at pp. 825-826.)
The appellate court found the evidence insufficient to support jurisdiction under both subdivisions (b) and (j) of section 300. In finding the subdivision (j) allegation insufficient, the appellate court noted that the agency did not offer in evidence any portion of Aaron's case file and did not ask the juvenile court to take judicial notice of the file. The jurisdiction/disposition report for the two younger children only stated that reunification services were offered the mother and that she failed to reunify with Aaron, but gave no specifics. The court stated, "Under the circumstances of this case, allegations sustained more than four years before the current jurisdiction hearing, standing alone, are not substantial evidence to support the juvenile court's jurisdictional findings." (In re David M., supra, 124 Cal.App.4th at p. 832.)
Here, the juvenile court took judicial notice of the files, and mother has failed to point out any shortcomings in the evidence and findings in those files. In addition, the court in In re David M. specifically stated, concerning the section 300 subdivision (b) allegations, "[w]e do not mean to imply that past abuse is never enough to establish a substantial risk of serious harm." (In re David M., supra, 134 Cal.App.4th at p. 831, fn.
3.)
The statement in In re David M., indicating that past abuse can be sufficient to establish substantial risk of serious harm, is particularly apt with regard to a section 300, subdivision (j) allegation. As previously set forth, an allegation under subdivision (j) is based on abuse or neglect of a sibling as defined in subdivision (a), (b), (d), (e), or (i) and additionally requires "a substantial risk that the child will be abused or neglected, as defined in those subdivisions." Subdivision (j) adds two components not present in the other subdivisions that require "substantial risk" of harm. First, it begins with the requirement that a sibling has been abused or neglected in the manner described under other listed subdivisions; its initial focus is not on the child who is the subject of the current petition. Second, it lists particular factors the court shall consider regarding the previous abuse or neglect and specifically allows the court to consider "any other factors the court considers probative in determining whether there is a substantial risk to the child." Section 300, subdivision (j) is thus a subdivision rooted in the history of the child's parent's actions regarding the child's sibling or siblings. It makes sense that a child of a parent who has a substantial and/or serious history of abuse or neglect to other siblings may be at a current substantial risk of harm based on that history.
Although we commend mother for her current efforts, drawing all reasonable inferences in support of the juvenile court's findings, we find the juvenile court could reasonably have found sufficient evidence to support the jurisdictional finding.
2. Removal from Mother's Custody at the Disposition Hearing
Mother contends there was error in the disposition in that substantial evidence did not support the removal of Jonathan from her custody. Specifically, mother contends that the Agency did not prove by clear and convincing evidence that there was a substantial danger to Jonathan if he were returned home. In passing, she asserts there was no consideration of alternative reasonable means of protecting Jonathan without removing him from mother's care. We disagree.
In order to remove a child from the physical custody of his or her parents or guardian under section 361, subdivision (c)(1), the court must find by clear and convincing evidence at the dispositional hearing that there is a substantial danger or risk of danger to the child's physical or emotional well-being if the child is returned home and that there are no reasonable means to protect the child without removing him or her. (§ 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The court must also determine whether reasonable efforts were made to prevent or eliminate the need for the child's removal. (§ 361, subd. (d).) If removal is necessary, the court must state the factual basis for the removal order. (Ibid.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of [section 361, subdivision (c)(1)] is on averting harm to the child. [Citation.]" (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
We review the court's dispositional finding under the substantial evidence test, bearing in mind the heightened burden of proof. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.) Here, the evidence that supports the court's jurisdictional findings also supports the court's dispositional finding. As already discussed, the evidence of mother's lack of adequate housing and her failure to take care of his physical needs placed Jonathan at risk. Jonathan's physical condition at the time he was detained revealed mother's inability or unwillingness to properly care for him. There was more than substantial evidence to support the court's removal from mother's care.
Mother relies in part on In re James T. (1987) 190 Cal.App.3d 58 for the proposition that removal covers only extreme cases. In James T., the minor was a 16-year-old boy who was placed with his sister and brother-in-law when his family no longer had room for him. (Id. at pp. 61-63.) The appellate court found removal was not justified because the mother had become gainfully employed and was in the process of purchasing a two-bedroom condominium where the minor could live. (Id. at pp. 63-64.)
Here, unlike in James T., the evidence clearly and convincingly showed both that Jonathan would be exposed to a substantial risk of harm if he were returned to mother's care, and that removal was the only reasonable means of protecting him. The record indicates there were no reasonable alternatives and mother does not suggest any. Substantial evidence supported the court's removal of Jonathan from mother's care.
3. Placement with Father
As discussed above, the juvenile court placed Jonathan with father, concluding father was a noncustodial, nonoffending parent. Mother contends that the court prejudicially failed to apply the "clear and convincing" standard in finding that there was no detriment as required by section 361.2 when it awarded custody to father, requiring reversal. We disagree.
"The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent)." (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. omitted.)Section 361.2, subdivision (a) provides that "[w]hen a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child." If so, the court must place the child with that parent unless it finds doing so would pose a risk to the child. (Ibid.; In re Janee W. (2006) 140 Cal.App.4th 1444, 1451.)
Mother contends that the juvenile court was required to determine by clear and convincing evidence that placing Jonathan with father would not be detrimental to him before awarding custody. She is incorrect. If a noncustodial parent requests custody pursuant to section 361.2, the court must place the child with that parent unless the court determines "'placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child[.]'" (In re V.F., supra, 157 Cal.App.4th at p. 970, quoting § 361.2, subd. (a).) This is so because the noncustodial "parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent's choices will be 'detrimental to the safety, protection, or physical or emotional well-being of the child.' [Citation.]" (In re Isayah C. (2004) 118 Cal.App.4th 684, 697, quoting § 361.2, subd. (a).)
The court, therefore, is required to make a finding of detriment by clear and convincing evidence only where it declines to place the child with the noncustodial parent who desires custody. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426 ["A court's ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence"]; see also In re John M. (2006) 141 Cal.App.4th 1564, 1569.)
Here, the juvenile court determined father was a noncustodial parent who "desire[d] to assume custody" of Jonathan. (§ 361.2, subd. (a).) Substantial evidence supports the conclusion that there was no detriment to placing Jonathan with father. Father flew from New York to California to attend Jonathan's first jurisdiction hearing in February of 2010. While in California, father met with Jonathan four or five times. Mother subsequently turned off her cell phone and did not let father know where they were. After Jonathan was placed in foster care, father immediately resumed regular telephone contact with him. Although father served prison time for selling cocaine, he had been steadily employed for approximately three years since then. A criminal records check from Washington and New York, where father had lived and did live, revealed no indication of arrests or convictions. A home study found that father had a three-bedroom apartment with one bedroom already furnished for Jonathan, and that father was making efforts to change his work schedule to accommodate Jonathan's presence in the home.
Father had support from his family in caring for Jonathan, and father understood that Jonathan was behind in school and needed evaluation to meet his educational needs.
As a result, there is no merit to mother's argument that the juvenile court did not apply the "correct" standard of proof when it awarded custody of Jonathan to his father, nor any merit to her claim that the court would have concluded placing Jonathan with father was detrimental if it had applied the clear and convincing standard of proof.
4. Reunification Services
Mother contends that the juvenile court abused its discretion when it denied her reunification services pursuant to section 361.2, subdivision (b)(3). We disagree.
Section 361.2, subdivision (b)(3) provides in relevant part that when the juvenile court orders that a parent assume custody subject to the supervision of the juvenile court, it "may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision." (§ 361.2, subd. (b)(3).) The juvenile court is vested with broad discretion either to deny or offer reunification when a child is placed in the physical custody of the formerly noncustodial parent, and we review for abuse of discretion. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) "'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Regarding Jonathan, the juvenile court stated it was "not ordering reunification services for the mother. [¶] The denial of services under 361.2 does not need to be based on 361.5 factors. [¶] ... [¶] [A]ssuming that [section] 361.5 factors were required, the Court would find that the mother by clear and convincing evidence ... is described [by section] 361.5, subdivision (b)(10) and (11) based on her admission of her last use six months ago as well as [subdivision (b)(13)]."
Mother argues this ruling wrongfully denied her reunification services because the court abused its discretion under section 361.2, subdivision (b)(3), and section 361.5 is inapplicable in the absence of a disposition order placing the child with someone other than a parent. (In re Pedro Z. (2010) 190 Cal.App.4th 12, 21.) While it is true that the bypass provisions of section 361.5 are inapplicable here because Jonathan was being placed with the noncustodial parent, his father, the juvenile court did not abuse its discretion in denying mother reunification services.
To the contrary, the juvenile court denied services to mother because they were not in Jonathan's best interests, the appropriate standard under section 361.2, subdivision (b)(3). Mother failed to find appropriate housing for Jonathan and she failed to rectify Jonathan's excessive absences and tardies from school. Section 361.5, subdivision (b)(10) provides that reunification services need not be provided if a parent has failed to reunify with a sibling or half sibling of the child. Section 361.5, subdivision (b)(11) provides that reunification services need not be provided if parental rights regarding a sibling or half sibling of the child were previously terminated and the parent has not made reasonable efforts to treat the problems that led to removal. Section 361.5, subdivision (b)(13) provides that reunification services need not be provided if a parent has a history of drug use and has resisted prior court-ordered treatment for the problem during a three-year period immediately prior to the filing of the current petition or refused to comply with a drug treatment program on at least two prior occasions.
By referencing these three subdivisions, while not necessary, the juvenile court was stating the obvious. In light of mother's lengthy history of endangering and losing custody of four of Jonathan's half siblings, and her current history of failing to adequately provide for Jonathan, reunification services for mother were not in Jonathan's best interests. The denial of reunification services for appellant was not an abuse of discretion.
5. Judicial Notice
Prior to the jurisdiction/disposition hearing, the Agency filed a motion requesting that the juvenile court take judicial notice of dependency case file Nos. J33899 and J38065 in the current proceedings for Jonathan. According to the motion, these files contained information (1) regarding mother's substance abuse history and treatment with regard to Jonathan's half siblings, and (2) supported the section 300, subdivision (j) counts pled in the current petition. As noted by the Agency, "but for filing errors, the documents and records in J#33899 and J#38065 and [the current case] would be all a part of the same case file as the children have the same mother ... and juvenile court cases in Tulare County are filed by mother and siblings/half-siblings are filed by mother under the same J#."
At the subsequent jurisdiction/disposition hearing, the juvenile court took judicial notice of the records. At the continuation of the jurisdiction/disposition hearing on October 7, 2010, the court reiterated that it had granted the motion and that it was taking judicial notice of those files.
The fact that the juvenile court took judicial notice of case file Nos. 33899 and 38065 is taken from the clerk's transcript of September 23, 2010, which states, "Case recalled: [¶] The Court has read and considered the Motion to take Judicial Notice. [¶] No objection to the motion. [¶] The Court takes judicial notice of the Juvenile Court Cases 33899 and 38065. [¶] Counsel is to have access to the files for review. [¶] The Court orders that if this matter goes up on appeal cases 33899 and 38065 be provided as part of the record on appeal to any reviewing court." We have been provided no reporter's transcript corresponding with this portion of the hearing.
In filing her appeal, mother requested, inter alia, that juvenile case Nos. 33899 and 38065 be augmented to the appellate record in this case. We granted the request, but ordered that the parties address in their briefs "the extent to which this court may take judicial notice of [those files]."
Mother now contends this court should not take judicial notice of the case files of Jonathan's half siblings. Citing Evidence Code section 352, she contends they are irrelevant and more prejudicial than probative of the facts of this case. In the alternative, she asks that we take judicial notice "of only specific relevant findings and orders for the siblings."
Evidence Code section 452 provides that judicial notice may be taken of the records of any court of this state. Evidence Code section 453 provides that the trial court shall take judicial notice of any matter specified in Evidence Code section 452 if a party requests it and the adverse party is given sufficient notice of the request. On appeal, mother does not contend that the juvenile court erred in granting judicial notice of the additional files and, in fact, this she may not do because her failure to object below forfeits the issue on appeal. (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 369, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535, fn. 7.) Neither does she point to specific facts she claims the court improperly considered. Instead, she contends only that this court should not consider the previous files in its review. We disagree.
Under section 459 of the Evidence Code, reviewing courts have both a mandatory duty and a discretionary power to take judicial notice. A reviewing court is required to take judicial notice of any matter the trial court has properly noticed or should have judicially noticed. (Evid. Code, § 459, subd. (a).) However, a reviewing court is not required to take judicial notice of such matters in the same tenor as that used by the trial court. (Ibid.)
The juvenile court may take judicial notice of facts asserted in findings and orders in a prior juvenile court proceeding, but cannot take judicial notice of hearsay allegations and other matters in its file, other than the report prepared for the hearing. (In re Amber D. (1991) 235 Cal.App.3d 718, 724.) In Rocco M, supra, 1 Cal.App.4th 814, over the mother's objection, the juvenile court took judicial notice of the entire dependency file from a previous dependency proceeding. The appellate court noted that every assertion in the file could not necessarily be accepted as proof of the matter asserted but further noted that there was no blanket rule precluding it. (Id. at p. 819.)
Here, while the juvenile court stated during the October 7, 2010, hearing, somewhat loosely, that it was "taking judicial notice of those files," even if the juvenile court considered only the orders, findings of fact and conclusions of law, and the judgment in those files, there is sufficient evidence to sustain the section 300, subdivision (j)(2), (3), (4), and (5) allegations. We take judicial notice of the same here.
DISPOSITION
The orders of the juvenile court are affirmed.
DAWSON, J. WE CONCUR: CORNELL, Acting P.J. DETJEN, J.