Filed 1/8/16 In re Jason B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JASON B. et al., Persons Coming Under the Juvenile Court Law. D068280 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ03882A-C) Plaintiff and Respondent,
v.
DEANNA J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Daniel G.
Lamborn, Judge. Affirmed.
Law Offices of Arthur J. LaCilento and Arthur J. LaCilento, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent. Jason B., Dustin B., and A.J. were removed from parental custody on the grounds
that the family was living in squalor and that prescription drugs were accessible to the
children even though several months earlier, A.J. was taken to the emergency room after
ingesting morphine from the prescription of their mother, Deanna J. Deanna appeals the
juvenile court's jurisdiction and disposition orders, primarily on the ground that they are
not supported by substantial evidence. However, Deanna has forfeited appellate review
by failing to discuss and analyze the evidence supporting the orders and instead,
"present[ing] only facts and inferences favorable to . . . her position." (Schmidlin v.
City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) In any event, we have
independently reviewed the record and conclude that all issues raised on appeal lack
substantive merit. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Jason and Dustin were born in 2008 and 2007, respectively, and Joseph B. is their
presumed father. A.J. was born in 2012, and Sheldon B. is her presumed father.
Deanna has a lengthy history with the San Diego County Health and Human
Services Agency (Agency). Between 2007 and 2014, the Agency received 13 referrals,
eight of which it investigated.
In August 2007, Deanna took Dustin to Rady Children's Hospital and alleged that
Joseph shook him and caused an indentation in his head. No evidence of abuse was
found. Rather, the indentation was determined to be "a pressure point caused by the baby
preferring to sleep on that side." By the time a diagnosis was made, however, a family
law case was opened, and Joseph was subjected to a three-year restraining order that
2 required him to complete anger management and parenting programs as a condition of
unsupervised visitation.
In conjunction with Deanna's allegation, the Agency opened a voluntary services
case. Joseph was cooperative, attended therapy, and completed the ordered programs.
Deanna was uncooperative. She refused to sign a case plan, ignored the social worker's
telephone calls and letters, and denied the Agency access to the boys. The Agency
nonetheless closed the case as successful in 2008 after it assisted the family "with a
housing search and some crisis management."
Because of all the court hearings that he was required to attend, Joseph lost his
job. Because he could no longer pay for supervised visitation, it was canceled, and he
could not afford to return to court to try to obtain unsupervised visitation. Joseph became
discouraged, moved to Texas to be near his family, and lost contact with the boys. He
mailed Deanna insurance information for them, but it was returned as undeliverable. She
had moved without notifying him of her new address. His efforts to locate her through
Facebook were unsuccessful.
In April 2013, the Agency opened another voluntary services case based on
"concerns about the children stemming from [Deanna's] anxiety and depression." It was
reported that Deanna "sleeps a lot during the day," and that the boys would answer the
phone and say that she was asleep. Further, despite their ages, Jason and Dustin were not
potty trained, and Jason arrived at school two or three times a week wearing the same
"soaking wet" diaper from the night before. The school worked with Jason on potty
training, but Deanna "would request that the school staff put [him] i[n] a pull-up diaper
3 prior to sending him home from school." Additionally, "the home was . . . dirty, cluttered
and smelt [sic] of urine," and Dustin slept in a chair because his bed was "full of clutter."
The "house was infested with scabies and the family had noticeable scabies on their
hands, arms, necks and face[s]." Despite the conditions, the Agency closed the case
because of Deanna and Sheldon's "resistance and refusal to participate in services."
In June 2014, A.J. ingested morphine prescribed for Deanna. A report from Rady
Children's Hospital states that A.J. was treated after "she was found with [a] 100mg
morphine [tablet] in her mouth," and she "vomited pieces [of a pill] and the parents were
unsure how many she took." The hospital did not report the incident to the Agency. A
social worker visited the home after a referral several months later, and one of the boys
told her about the incident. The Agency requested the medical records, but it did not
intervene.
This case began in February 2015 when the Agency was notified of "a possible
hoarding environment." The manager of the family's apartment reported "there is a 5-6
foot pile of stuff in the home, there is ho[a]rding, animals using the restroom in the home,
and there is a strong odor of urine." A cleaning company reported that the home had a
"pungent urine stench," and estimated that it would cost $10,000 to "kill the horrendous
odor" and put the home in a "livable condition."
Additionally, the boys' school reported that they typically smelled of urine and
wore filthy and ill-fitting clothes. The school potty trained Dustin, as it had done with
Jason, because Deanna still put him in diapers. The school was concerned that Deanna
"continually dreams up medica[l] conditions [the boys] do not have." Jason has autism, 4 but the school characterized both boys as "very bright." Jason, however, turned in
homework only twice that school year, and both boys had been absent from school since
January 22, 2015. Deanna failed to attend a meeting the school had scheduled to discuss
the matter.
Two social workers went to the home and were allowed inside after approximately
15 minutes. They were met with "an overpowering heavy pungent odor of ammonia and
urine." The home was "littered in garbage and debris," in some places "trash was stacked
up to [four] feet high," and "it was difficult to walk [through] the home due to the
conditions." Dogs were present and "the carpet was covered in urine and feces stains."
Kitchen countertops "were covered . . . with dirty dishes and trash as well as cleaning
supplies." A.J. was lying in a dirty crib oriented toward a television. Further, despite the
previous incident with A.J., prescription drugs for Deanna and the maternal grandmother,
who resided in the home, were accessible to the children.
Because Deanna and Sheldon refused to drug test or to work with the Agency in
ensuring that medications were out of the children's reach, the Agency removed the
children from parental custody. On February 11, 2015, the Agency filed petitions on
behalf of the children based on the parents' failure or inability to protect them from
physical harm or the risk thereof. (Welf. & Inst. Code, § 300, subd. (b)(1).)1
On February 17, 2015, Deanna was taken to the emergency room. She and
Sheldon had been out drinking and were found "unresponsive" in a car. Deanna had a
1 Further statutory references are to the Welfare and Institutions Code.
5 blood alcohol level of 0.166. She admitted that "she abuses alcohol," but refused to say
whether she used illicit drugs. She reported "a history of seizure disorder, . . . , autism,
anxiety, degenerative dis[c] disease, depression, fibromyalgia, hypothyroidism and mood
disorder." Sheldon had a blood alcohol level of between 0.128 and 0.135 and was
arrested for driving under the influence.
The same day, firemen and police were called to the home because the
grandmother had fallen out of her wheelchair. They forcibly opened the door and entered
after moving a dresser that was blocking the door. According to a police report,
"the scent of urine permeat[ed] throughout the house," "feces [were] all over," dishes
were stacked approximately a foot high in the sink, "food [was] rotting in dishes with
flies," and the refrigerator "was full with mostly rancid food."
The Agency filed amended petitions to add a second count, which alleged the
February 17 alcohol incident and a February 13 test for Sheldon that was positive for
marijuana. The Agency suspected that both he and Deanna had substance abuse
problems.
In its report for the jurisdiction and disposition hearing, the Agency recommended
that Jason and Dustin be placed with Joseph. Joseph was living with his wife and her
three children in Texas, and was employed as a truck driver. His wife was a stay-at-home
mother with a business that she ran from home. Joseph began speaking with the boys by
phone, and he came to San Diego for a visit. The boys were happy to see him and the
visit went well. Texas performed a courtesy evaluation of Joseph's home and found that
it "was clean, appropriate and had no observable safety hazards." (Italics omitted.)
6 A contested hearing began on the afternoon of April 17, 2015. Deanna's attorney
sought a continuance because Deanna had a seizure and was taken from court to the
emergency room. The court denied the request, but limited that day's evidence to the
testimony of Jason and Dustin, which Deanna had already stipulated would be given in
chambers without the parents' presence. The court specified that the boys were subject to
recall if Deanna had questions for them after viewing their videotaped testimony.
Dustin testified that he would like to live with Deanna and Joseph together, if that
were possible. During his visit with Joseph, he felt safe and had a good time. He would
be sad to live with Joseph in Texas long term, however, because he would miss Deanna.
He loves Deanna, has never been afraid of her, and would like more time with her.
Jason testified that he was not afraid of Deanna and wanted to live with her. He
felt safe with Joseph, but Deanna took better care of him. Jason later admitted, however,
that Deanna had told him how to testify because "[s]he wanted me to be back." When
asked whether he wanted to go home with Deanna, he said he wanted "some more time
with Joseph before I go home." When asked whether he wanted to visit Deanna, he said,
"No, I just want to visit with my dad for a long time first."
Deanna appeared at the second day of the hearing, and her counsel advised the
court that he had fully discussed the boys' testimony with her and did not intend to recall
them. Deanna stated on the record that she agreed with that decision.
The current social worker, Karen Lowrimore, testified that Deanna had a lock box
for her medications, but she repeatedly left them out. The family home had been recently
cleaned up, but it still smelled strongly of urine. In Lowrimore's opinion, the recent
7 effort did not indicate that long-standing housekeeping issues were resolved. Further, she
explained that Deanna had a lengthy history of neglecting the children in other respects.
For instance, on the day the children were taken into protective custody, Jason was
sent to school in a diaper. Lowrimore testifed "it's very traumatic to be . . . a child that
age still in a diaper. And I believe it shows neglect in . . . that the time was not taken to
work with him." Further, Jason and Dustin were last seen by a doctor in 2013. There
were concerns at that time that Jason had a sleep disorder, but there was no follow up.
The San Diego Regional Center reported that Jason was entitled to services for autism,
but he was not receiving them. A.J. had missed one or more doctor appointments, and as
a result, she was behind in her inoculations. "[T]here were numerous concerns regarding
her development condition and possible autism that were never addressed."
Further, the boys were approximately a year behind in school because of
absenteeism and tardiness. Lowrimore testified that for two years, Deanna was subject to
a SARB (Student Attendance Review Board) contract to ensure their attendance, but they
still missed a lot of school. Deanna failed to pick up the boys numerous times from the
bus stop after school, and they were returned to school. The police were called two or
three times, and the boys were almost taken to Polinsky Children's Center.
Lowrimore testified that she had conducted a thorough investigation of Joseph.
She spoke with him, his wife, and his wife's mother, had a social worker in Texas
evaluate their home, and obtained a criminal history. She addressed all concerns that
Deanna had raised about Joseph and determined that they were "either decades old or
8 unfounded." Lowrimore believed that placement with Joseph would not be detrimental to
the boys, and that there was no need for services for him or for further court supervision.
The court made true findings on the amended petitions. The court placed Jason
and Dustin with Joseph and terminated its jurisdiction over them, placed A.J. with a
nonrelative extended family member and retained jurisdiction over her, and ordered
reunification services for Deanna and Sheldon with respect to A.J. On Deanna's assertion
that she "cannot do urine tests," the court ordered her to drug test by other means.
(Capitalization omitted.)
DISCUSSION
I
Sufficiency of the Evidence
A
Forfeiture
Deanna challenges the sufficiency of the evidence to support the court's exercise
of jurisdiction over the children and the placement of Jason and Dustin with Joseph in
Texas. "On appeal, the 'substantial evidence' test is the appropriate standard of review for
both the jurisdictional and dispositional findings. [Citations.] The term 'substantial
evidence' means such relevant evidence as a reasonable mind would accept as adequate to
support a conclusion; it is evidence which is reasonable in nature, credible, and of solid
value." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
The Agency contends that Deanna has waived appellate review by not fairly
recounting the evidence supporting the court's orders. "An appealed judgment is
9 presumed correct, and the appellant must affirmatively demonstrate error. [Citation.] An
appellant challenging the sufficiency of the evidence to support the judgment must cite
the evidence in the record supporting the judgment and explain why such evidence is
insufficient as a matter of law. [Citations.] An appellant who fails to cite and discuss the
evidence supporting the judgment cannot demonstrate that such evidence is insufficient.
The fact that there was substantial evidence in the record to support a contrary finding
does not compel the conclusion that there was no substantial evidence to support the
judgment. An appellant . . . who cites and discusses only evidence in her favor fails to
demonstrate any error and waives the contention that the evidence is insufficient to
support the judgment." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.)2
The factual statement in Deanna's opening brief includes a few facts supporting
the court's orders, but it elides the vast majority of them. Further, the discussion portion
of the brief cites only the evidence that Deanna deems favorable to her. For example, she
presents a distorted view of Joseph by focusing on his conduct more than 10 years ago
rather than on the evidence of current lack of detriment. She asserts that Joseph "is an
admitted sociopath," while neglecting to advise us that this assertion is based on a diary
he kept when he was 19 years old, in which he wrote "that he thought he was a
2 Courts customarily use the term "waiver" in such circumstances (see, e.g., Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218; Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34), but the term "forfeiture" appears to be better suited. A "waiver" is an intentional relinquishment of a known right or privilege, whereas a " 'forfeiture results in the loss of a right regardless of the [appellant's] knowledge thereof and irrespective of whether [the appellant] intended to relinquish the right.' " (King v. Superior Court (2003) 107 Cal.App.4th 929, 938.)
10 sociopath." Joseph testified that, at the time, he did not even know what the term
"sociopath" meant. Deanna had stolen his diary and used it against Joseph in family
court.3 He denied having any mental illness. The social worker had read the diary and
was unconcerned.
We agree that Deanna's failure to cite the evidence supporting the court's orders
constitutes a forfeiture of her challenge to the sufficiency of the evidence. "[A]n attack
on the evidence without a fair statement of the evidence is entitled to no consideration
when it is apparent that a substantial amount of evidence was received on behalf of the
respondent." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)4 However, we will
consider the sufficiency of the evidence notwithstanding Deanna's failure to comply with
the rule. (Liberty Mut. Ins. Co. v. Kleinman (1957) 149 Cal.App.2d 404, 406.)
B
Jurisdiction
A dependency proceeding is essentially a bifurcated proceeding, in which the
court must first determine whether the minor comes within any of the descriptions set
3 At the time of the hearing, Joseph was 30 years old.
4 Deanna has also forfeited appellate review by supporting her contentions with block citations to the record. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. . . . As [a] practical matter, the appellate court is unable to adequately evaluate which facts the parties believe support their position when nothing more than a block page reference is offered in the briefs." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205; Cal. Rules of Court, rule 8.204(a)(1)(C) [appellate briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) 11 forth in section 300 and is thus subject to its jurisdiction. (In re Marquis H. (2013)
212 Cal.App.4th 718, 724.) The petitions were filed under section 300,
subdivision (b)(1), which applies when 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."
Under the substantial evidence standard, " '[w]e review the record to determine
whether there is any substantial evidence to support the juvenile court's conclusions, and
we resolve all conflicts and make all reasonable inferences from the evidence to uphold
the court's orders, if possible.' " (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1216.) Substantial evidence is " 'evidence which is reasonable, credible, and of solid
value to support the conclusion of the trier of fact.' " (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393.)
"The appellate court does not reweigh the evidence, evaluate the credibility of
witnesses or indulge in inferences contrary to the findings of the trial court. [Citations.]
The substantial evidence standard of review is generally considered the most difficult
standard of review to meet, as it should be, because it is not the function of the reviewing
court to determine the facts." (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
" 'We review a cold record and, unlike the trial court, have no opportunity to observe the
appearance and demeanor of the witnesses.' " (In re Luke M. (2003) 107 Cal.App.4th
1412, 1427 (Luke M.).)
The evidence shows that when the Agency removed the children from parental
custody, the family home was filthy and reeked of urine, and medicines were accessible
12 to the children. Lowrimore testified that the conditions presented a high risk to the
children's physical safety. Although the home had been cleaned up before the hearing,
Lowrimore believed that without court intervention, the condition would reoccur. She
explained: " . . . It's been repeatedly brought to [the parents'] attention that the home
needs to be cleaned," and "[t]hat the medicine needs to be put away. [¶] . . . [¶] And
even when the kids were removed, it was ongoing. The parents didn't meet with me. I
could not get in to see the house. [¶] Before they were even removed, [the Agency] tried
to work with the parents to come to . . . meetings, to get drug tested. And this history has
been going on for years."
Mark Esquivel, who works for a cleaning company, advised the Agency that he
visited the home after it was reported to him that the family was in "distress" and "needed
urgent help or they would be evicted," and "there were two . . . children in the home that
were being bullied because they smelled of urine." Esquivel had experience with
"hoarder homes," and he stated "that if he had to judge the home on a scale of 1-10, the
home would be a 7-8[,] but due to having kids in the home it would be an 11." Debris
was "piled four feet tall," the carpet had urine and feces stains, and the odor was
"horrific."
The manager of the family's apartment building reported that cleaning up their
apartment "has been an ongoing process for years." When management attempted to
inspect the home, Deanna became "irate and aggressive." By the time of the hearing, the
family had been served with an eviction notice.
13 Further, the home's condition was not the only problem. A few days after the
children were removed, Deanna and Sheldon were found "unresponsive" in a parked car
after a drinking bout. When a sheriff's deputy arrived, the car "spun off and [a] chas[e]
ensued." When the car stopped, Deanna "stumbled out of the passenger side door and
fell . . . to the ground." She was treated in the emergency room, where she admitted that
she had an alcohol problem and refused to discuss any drug abuse. Her blood alcohol
level was 0.166. Her doctor reported that "because of the strong prescriptions she takes,
she should not be mixing them with alcohol."5
Contrary to Deanna's position, the issue of substance abuse was not resolved
merely because she submitted to a single hair follicle test that proved negative. Deanna
points to no evidence that she had even begun a substance abuse program. Section 300.2
provides: "[T]he provision of a home environment free from the negative effects of
substance abuse is a necessary condition for the safety, protection and physical and
emotional well-being of the child. Successful participation in a treatment program for
substance abuse may be considered in evaluating the home environment."
5 An Agency report notes that Deanna posted the following message on her Facebook page: "Oh, did I mention alcohol, and the ability to get stoned in the house? Only thing is cigs have to be smoked on the patio, but we have a large fully closed in patio . . . show up for a pool/bbq/drinking and 420 (marijuana) friendly fun at my old apartment, let me know." Deanna is apparently referring to Senate Bill No. 420 (2003- 2004 Reg. Sess.), which enacted California's Medical Marijuana Program Act (Health & Saf. Code, § 11362.7 et seq.), which was intended to clarify and provide consistent application of the Compassionate Use Act (Prop. 215, § 1, as approved by voters, Gen. Elec. (Nov. 5, 1996); Health & Saf. Code, § 11362.5, et seq.). 14 Additionally, the evidence showed that the children's medical needs were not
being met, Jason was not receiving services for his autism, the boys had issues with potty
training and were sent to school in diapers at ages seven and eight, they were behind
about a year in school because they were frequently absent or late, and they were
frequently not picked up from the bus stop on time. Substantial evidence, indeed,
overwhelming evidence, supports the court's jurisdictional orders.
C
Disposition
"After the juvenile court finds a child to be within its jurisdiction, the court must
conduct a dispositional hearing. [Citation.] At the dispositional hearing, the court must
decide where the child will live while under the court's supervision." (In re N.M. (2011)
197 Cal.App.4th 159, 169.)
The court shall not remove a child from the custodial parent's home unless it finds
clear and convincing evidence that "[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being" of the child
without removal. (§ 361, subd. (c)(1).) The same evidence that supports the court's
exercise of jurisdiction supports the court's removal of the children from Deanna's
custody.
When a child is removed from the custodial parent's home, "[s]ection 361.2,
subdivision (a) evinces the legislative preference for placement with the noncustodial
parent when safe for the child." (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262.)
The statute provides that if the noncustodial parent requests custody, "the court shall
15 place the child with the parent [when] it finds that placement with that parent would [not]
be detrimental to the safety, protection, or physical or emotional well-being of the child."
(§ 361.2, subd. (a), italics added.) A "nonoffending parent has a constitutionally
protected interest in assuming physical custody, as well as a statutory right to do so,"
absent clear and convincing evidence of detriment. (In re Isayah C. (2004)
118 Cal.App.4th 684, 697.)
"In making a finding of detriment, the court may consider any jurisdictional
findings that may relate to the noncustodial parent . . . , as well as any other evidence
showing there would be a protective risk to the child if placed with that parent."
(In re V.F. (2007) 157 Cal.App.4th 962, 970.) "Section 361.2, subdivision (a) does not
mandate placement with the noncustodial parent absent judicial examination of the
circumstances of the parent and child." (In re Nickolas T. (2013) 217 Cal.App.4th 1492,
1506.)
Deanna contends that the court erred by not finding detriment. She claims that she
established detriment by showing that Joseph "did not comply with [the] previous
[d]omestic [v]iolence court orders form [sic] the family court"; "admitted to using illegal
drugs such as [m]ethamphetamine and [m]arijuana on a regular basis as often as five
times per week"; "has a criminal history, unresolved mental health issue[s] related to
depression and is an admitted sociopath who can hurt himself or others"; and "never
visited, contacted or made any attempt except for one telephone call to have a
relationship with Dustin and Jason."
16 Several of Deanna's claims pertain to Joseph's conduct before they even met. As
discussed, when he was 19 years of age he wrote in his diary "that he thought he was a
sociopath," without knowing what the term meant. The social worker read the diary and
was unconcerned. Joseph told Deanna that he had used drugs when he was 17 to 18 years
of age, information she used against him along with the diary entry, but he told the social
worker that he stopped using drugs before he met Deanna, and Deanna adduced no
evidence to the contrary. As to Joseph's criminal history, he testified that he had been
arrested three times for theft by check between 2003 and 2005, and that he had not been
arrested since 2005.6 Deanna does not explain how any of these stale issues affects
Joseph's current ability to parent his sons. She points to no evidence to back up her
assertion that Joseph "can hurt himself or others."
As to Joseph's supposed untreated depression, Lowrimore testified that Joseph
denied having any mental health issues, and she saw no evidence of depression. She
explained "[t]here has been no diagnosis from anybody that he has that or needs
medication. He holds a full-time job. He takes care of the family. He has done
everything I asked. He has come out here to visit. I see no evidence on that." Deanna's
counsel asked Joseph, "Now, you told the social worker you have had . . . depression
since you were 12; is that right?" He responded, "The depression was self-diagnosed. I
have never been diagnosed officially with depression."
6 Deanna was arrested for theft of personal property in 2013. 17 Further, the court could reasonably find that the domestic violence restraining
order issued against Joseph in 2007 was groundless. The order arose from Deanna's
accusation that Joseph shook Dustin and caused an indentation in his head, and an
examination at Rady Children's Hospital disproved the accusation. Joseph conceded that
he may have caused bruises on Dustin's arms by throwing him in the air and catching him
too roughly, but he testified that he had not abused either boy and felt "badgered" into
agreeing to the restraining order because Deanna had an attorney and he could not afford
one.
The Agency also submitted evidence that Joseph attended therapy and completed
parenting and anger management programs in conjunction with Deanna's 2007
accusation, but he was unable to present certificates of completion because of the passage
of time. Joseph testified that he completed a voluntary services plan with the Agency. In
2007, the Agency informed the family court that it had completed its investigation and
that the allegation of physical abuse against Joseph was unsubstantiated, but that he had
complied with the terms of the restraining order.
As to Jason and Dustin's lack of a bond with Joseph, Joseph admitted that he had
had no contact with them for approximately seven years, between the time he moved to
Texas after losing his job and notification of the current proceedings. Deanna, however,
disregards her role in the lack of contact. Joseph tried calling her, but she had changed
18 her phone number. He mailed her insurance information for the boys, but she moved
without notifying him and it was returned as undeliverable.7
Joseph agreed that his lack of contact with the boys was not in their best interests,
and he expressed remorse. He testified that he was now a stepparent to three children,
and "it's become abundantly clear to me how important it is to have both parents in
addition to stepparents in the lives of the children, where that was not clear before."
When he learned of this case, he immediately began speaking with the boys over the
phone and arranged for a visit.
Additionally, while a sibling bond is among the factors that may be considered in
assessing detriment (Luke M., supra, 107 Cal.App.4th at p. 1426), Deanna appears to
exaggerate the relationship between the boys and A.J. Dustin was asked whether he
would be sad to leave his mom and sister in San Diego, and he responded, "Well, not my
sister, because I really need a break of babies -- [¶] . . . [¶] -- [r]eally bad. [¶] . . . [¶] I
just can't stand anymore babies, not even one more." Jason was asked whether he liked
his sister, and he responded, "Yes, but also she's messy. She's not really friendly, but she
just played around, and then you, like, tell her no, she just starts doing it bad." He was
asked whether he wanted to keep seeing her, and he said, "Yeah, but also she's, like,
really mean to other babies." These facts "provide no support for 'a finding that there was
a probability that moving to [Texas] would have a devastating emotional impact' " on the
7 Joseph testified that he was behind in child support between 2008 and early 2010, but at the time of the hearing, his payments were current. It is unclear how he paid support when he was unaware of Deanna's whereabouts. 19 boys. (In re John M. (2006) 141 Cal.App.4th 1564, 1570 (John M.), citing Luke M.,
at p. 1426.)
As to Deanna's inability to travel to Texas, the custody order provides for phone
contact between her and the boys twice a week, and for Joseph's "best efforts" to bring
the boys to San Diego for visitation every other month. While the situation is not ideal,
and we do not doubt that the boys will miss her, this issue, standing alone, does not
indicate detriment.
The Agency investigated Joseph and his current circumstances and recommended
that he have custody of the boys. Joseph traveled to California to testify in person, and
the court was able to assess his credibility and sincerity. Joseph said that he wants Jason
and Dustin to live with him in Texas. He has been married for five years and has three
stepchildren. He obtained enrollment documents from the school that the boys would
attend and had "mostly filled them out." He had also provided the school with the boys'
immunization records, and a copy of Jason's IEP (individualized education plan).
Because of Jason's special needs the school had already assigned his teacher, with whom
Joseph was in regular contact. An IEP meeting was scheduled for the day Jason enrolled,
with another meeting to follow in 30 days. Joseph planned to take the boys to therapy to
help them adjust to the change, acknowledging "they are going to need somebody to talk
to, somebody who is a third party, somebody who is trained."
We conclude that the evidence amply supports the disposition orders. The issues
that Deanna raises, whether considered alone or cumulatively, are insufficient to deny
20 Joseph custody. Deanna essentially asks that we reweigh the evidence, but that is not our
province. (People v. Maury (2003) 30 Cal.4th 342, 403.)
II
Due Process Claim
Deanna also contends that the court violated her federal constitutional right to due
process by commencing the hearing in her absence. The due process clause of the
Fourteenth Amendment to the United States Constitution "requires reasonable notice and
opportunity to be heard before governmental action may deprive an individual of a
significant property interest." (Bergeron v. Department of Health Services (1999)
71 Cal.App.4th 17, 23; Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428-438 &
fn. 5.) Parents have a fundamental interest in the care, custody, and management of their
children (Santosky v. Kramer (1982) 455 U.S. 745, 753), and a "constitutional right to
due process . . . before the state may interfere with their parental rights. [Citation.]
' "[D]ue process is flexible and calls for such procedural protections as the particular
situation demands." ' " (H.S. v. N.S. (2009) 173 Cal.App.4th 1131, 1138.)
Specifically, Deanna asserts that her absence on the first day of the hearing
precluded her from testifying on her own behalf, assisting her attorney in the cross-
examination of witnesses, and presenting evidence on the issue of detriment. The
assertion is absurd. On the first day of the hearing, the court heard only the testimony of
Jason and Dustin, which Deanna had previously stipulated would be given in chambers
without the parents' presence. (See § 350, subd. (b).) Deanna was in court for the second
and third days of the hearing, during which the court did not impede her presentation in
21 any manner. In considering whether she had a reasonable opportunity to be heard, we
consider the entire hearing, not merely the session that she missed. Deanna has not
shown any due process violation.
Additionally, a rule of harmless error applies to juvenile court proceedings.
(In re A.M. (2014) 224 Cal.App.4th 593, 598; In re J.S. (2011) 196 Cal.App.4th 1069,
1078.) "Before any judgment can be reversed for ordinary error, it must appear that the
error complained of 'has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)
Reversal is justified 'only when the court, "after an examination of the entire cause,
including the evidence," is of the "opinion" that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.' " (In re J.S., at p. 1079.) Deanna cannot show prejudice arising from her absence
on the first day of the hearing, because after viewing the videotape of the boys' testimony,
she expressly waived her opportunity to recall them for further questioning.
Deanna attempts to show prejudice by complaining that she was not present to
contest the court's order authorizing a visit for Jason and Dustin in Texas pending
conclusion of the hearing. However, her attorney objected to the order on her behalf.
Further, the order was never effectuated. Rather, it was automatically stayed for seven
days (Code Civ. Proc., § 917.7), and when the hearing reconvened during that period, the
22 court granted Deanna's request to stay the order pending conclusion of the hearing. The
court's grant of custody to Joseph on the final day of the hearing moots the issue.8
CONCLUSION
The orders are affirmed.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.
8 In a related vein, Deanna asserts that the court abused its discretion by denying her request for a continuance of the first day of the hearing. We are not required to reach the issue, because even if the court arguably erred, she makes no showing of prejudice. 23