Filed 3/7/14 In re Miley C. CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

In re MILEY C., a Person Coming Under                                B248455
the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK89684)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent.

         v.

MARIO C.,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County. Terry T.
Truong, Juvenile Court Referee. Affirmed.


         Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant.


         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jessica S. Mitchell, Deputy County Counsel for Plaintiff and Respondent.
       Mario C. (father) appeals from juvenile court jurisdictional orders establishing
dependency jurisdiction over his infant daughter, Miley, pursuant to Welfare and
Institutions Code section 300.1 Father also challenges the juvenile court’s dispositional
order removing Miley from his custody. Father contends that substantial evidence does
not support the juvenile court’s jurisdictional findings as to him, and that the court erred
in failing to place Miley in his custody. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
Family information
       Miley was born in January 2013. Miley’s mother, Michelle C. (mother) lived in
Pomona, and father lived in Azusa.2 Mother and father married in December 2010 and
separated in June 2012.
Prepetition events
       The Los Angeles County Department of Children and Family Services (DCFS)
received a referral in January 2013, alleging that mother had given birth to Miley
the day before and that both mother and the infant had tested positive for
methamphetamine. Mother admitted to having a history with DCFS and having her older
children removed from her care and placed with their biological fathers. The reporting
party had spoken with father, who stated that he was not living with mother because she
had drug problems and lived in an unhealthy environment. Father indicated he was
willing and able to have custody of Miley.
       A DCFS social worker responded to the referral by traveling to the hospital to
meet with the parents and the hospital social worker. Mother stated she was legally
married to father, but they were not currently living together due to domestic violence.




1      All further statutory references are to the Welfare & Institutions Code.

2      Mother is not a party to this appeal.


                                               2
Mother affirmed that she had two other children living with their respective fathers.3
Mother admitted she used methamphetamine not long before giving birth to Miley. She
also admitted to having tested positive for methamphetamine earlier in January 2013,
when she was admitted to the hospital for false contractions.
       Mother described domestic violence between father and herself. On New Year’s
Eve 2012, she and father were arrested because of their failure to complete court-ordered
domestic violence classes. Mother explained that the neighbors had called 911 because
father hit her on the back. Father was arrested. Although mother sustained injuries, she
did not press charges against father despite police request.
       Mother stated she was currently living in a motel with maternal grandmother
(MGM) since she no longer lived with father. However, she indicated that MGM did not
want her to return to the motel and she had nowhere else to live. The social worker
provided mother with resources for shelters. Throughout the social worker’s hour and a
half visit, mother did not request to hold the baby. Father held the baby the entire time.
       The social worker also interviewed father. Father denied knowledge of mother’s
use of drugs. He said mother had a history of drug use but he only found out about the
current use of drugs when he came to the hospital to see mother and Miley. Father stated
that mother’s drug use was one of the reasons he separated from mother after a couple of
years of marriage. Father admitted that there had been an allegation of domestic violence
at a time when he was arrested for “not really hitting” mother. He explained that he and
mother had been arguing and he slapped her on the back, but the neighbor contacted law
enforcement alleging that he had hit her on the head. Father denied present drug use but
admitted to using drugs about five years before. Father denied any mental health issues.
He expressed a desire to care for his child when she was released from the hospital.




3      Mother’s two older children are Noah W., who lives with his father in Barstow,
California, and R.W., who lives with her father in Lancaster, California. Mother does not
have contact with Noah. She claimed to be in touch with R. but could not provide the
social worker with the child’s telephone number.

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       Father told the social worker that he resided in a two bedroom apartment with a
cousin. He agreed to have the home assessed and to have all adults living in the home
live-scanned. Father expressed willingness to comply with all the procedures
implemented by DCFS. He was affectionate and caring towards the baby, and had her in
his arms the entire time that the social worker was speaking to him.
       The following day, the hospital social worker informed the DCFS social worker
that mother was disengaged from the child. Mother would not change the baby’s diaper
or feed her. Father did all the diaper changing, feeding, and was affectionate towards the
baby. The baby was separated from mother due to safety concerns. The social worker
visited father’s home and completed a home inspection. Father lived in an apartment
with two other relatives in Azusa. The home was relatively clean but father was sleeping
in the living room. The social worker concluded that there would be no room for Miley;
therefore the home did not appear suitable.
       On January 29, 2013, while Miley was still at the hospital, DCFS filed an
application requesting authorization for removal. The order authorizing removal was
signed the same day. The social worker served mother, father, and the hospital with the
removal order. On January 30, 2013, the baby was placed in a foster home.
Section 300 petition and detention
       DCFS filed a section 300 petition on February 1, 2013, containing allegations
against mother and father pursuant to section 300, subdivisions (b) and (j) regarding
mother’s substance abuse and the domestic violence between mother and father. DCFS
filed a detention report on the same date.
       Attached to the detention report was a police report authored by Pomona Police
Department Officer T. Ugarte regarding a September 11, 2011 child endangerment
incident involving R., who was four years old at the time. According to the police report,
Officer Ugarte was dispatched to the home on September 11, 2011, by a social worker
who was already at the home. The reporting party told the social worker that mother
often left R. home alone. Officer Ugarte reported that the condition of the home was
“very poor,” with trash, miscellaneous bottles, and numerous piles of paperwork strewn


                                              4
throughout the apartment floor. Additionally, the home did not have a refrigerator or any
food. When asked how long the home had been in that condition, mother responded “for
a long time.” Mother stated she had no food in the home and she depended on various
people to bring food to her.
       Mother admitted to smoking methamphetamine every three to four days. Officer
Ugarte also reported noticing a large hole in the bedroom door. Mother said she made
this hole when she was angry, and that when father used to stay at the apartment, “they
would periodically have violent fights and somehow holes would end up in various
places inside of the apartment.” Officer Ugarte observed the holes in the walls. Mother
said father did not live at the apartment anymore and denied any current domestic
violence issues. Officer Ugarte mentioned to another police officer that he did not want
the child left with mother because the current situation was unsafe. Mother responded,
“Yeah I don’t think it’s a good idea, it gets really crazy around here.” Officer Ugarte
opined that R. was a victim of child endangerment and arrested mother, and DCFS took
R. into protective custody.
       At the February 1, 2013 detention hearing the juvenile court found that there
existed a prima facie case for detaining Miley. Father appeared and was appointed
counsel. The court found father to be the presumed father of Miley. Father’s counsel
requested that Miley be released to father. Father’s counsel argued that father was
unaware of mother’s drug use, lived in a separate location from mother, and had ample
means to support the child. Father’s counsel informed the court that father intended to
submit a request for restraining order against mother. Because father’s counsel did not
bring father’s request for a restraining order to the hearing, the court granted a “stay-
away order.” Miley’s counsel requested that the court detain Miley from father, given the
allegations in the section 300 petition and mother’s statements regarding domestic
violence. The court made orders detaining Miley from the parents and permitting
monitored visits for the parents.
       On February 8, 2013, the juvenile court conducted an arraignment hearing for
mother. Mother appeared with counsel. The court ordered the parents to remain at least


                                              5
100 feet away from one another, and not to contact one another by telephone, email, or
social media. The court ordered Miley detained in the home of her paternal cousins.
Jurisdiction/disposition report
       The jurisdiction/disposition report, filed March 11, 2013, detailed prior DCFS
referrals regarding the family. There were five allegations of general neglect involving
mother’s son Noah and daughter R. between 2005 and 2011 which were either
inconclusive or unfounded. In September 2011, allegations against mother and father of
physical and emotional abuse as to R. were substantiated and resulted in the filing of a
section 300 petition. The allegations against mother and father included a history of
domestic violence in the child’s presence. Specifically, father struck mother’s arm,
inflicting bruises. The disposition date of the case was January 30, 2011, at which time
R. was released to her father, Leonard W. On May 30, 2012, the juvenile court
terminated jurisdiction over the case with a family law order granting Leonard W. full
physical custody.
       Both parents had criminal histories. In September 2011 and October 2011, mother
was charged with kidnapping, possessing controlled substance paraphernalia, and willful
cruelty to a child. The kidnapping charge arose when mother was arrested after arriving
at R.’s school under the influence of drugs and attempting to take another child from the
school, thinking it was her child. Mother was sentenced to 30 days in jail, four years
probation, and a fine. Mother stated that she was no longer on probation and had no
further court appearances.
       Father’s criminal history included an incident in June 1998 for which father
received three years’ probation for vandalism and possessing/selling a switchblade knife.
In January 2012, father was charged with infliction of corporal injury on a spouse.
According to father, he was placed on summary probation for three years and was
ordered to complete a 52-week domestic violence class. Father reported that he started
attending the domestic violence classes in 2012, however, he stopped attending because
he could not afford to pay for them. Father also claimed that he recently enrolled in



                                             6
domestic violence classes and had completed three classes so far. Father’s next
scheduled criminal court appearance was May 2, 2013, for a progress report.
       Miley’s caretakers indicated that father was visiting regularly with the baby.
Mother, however, had no contact with Miley.
       On March 8, 2013, DCFS interviewed the parents. Mother acknowledged that she
had “messed up” by not completing her programs to reunite with R. Regarding the
physical altercations with father, she stated that they were “nothing but stupidity on both
parts and it was not right. There were holes in the walls where we lived at that time. We
both kicked the doors.” Mother denied that the physical altercations were in front of R.,
and claimed she did not recall hitting father. However, mother stated, “I do remember
the holes in the wall and we both kicked doors. We were going through hard times. He
was not working. I was injured and on disability. This was a one-time altercation.”
       Father admitted punching holes in the walls when he lived with mother, because
he was “frustrated and angry about her drug use.” However, he claimed that R. was not
present at the time. He stated: “I would hold [mother’s] arms when we would get into it
to prevent her from hitting me. She would hit me, bite me, and sock me. If she received
a bruise, it was from me holding her arms to keep her from attacking me.” Father denied
ever hitting mother.
       Father reported he had known mother for many years, and they were married in
December 2010. He found out that mother had a drug problem about two years after the
marriage. She was free from drugs for a time and then started using drugs again when
she was about six months pregnant with Miley. Father and mother were living together
from about October 2010 through June 2012, and during that time, they used
methamphetamines together. The parents stayed together for the first six months of
mother’s pregnancy. Father stopped using drugs, but mother did not. He moved out of
the home in June 2012 because of his altercations with mother. Father claimed he no
longer used drugs.
       Father reported that mother came to his home on January 4, 2013, so they could go
together to her medical appointment. Upon arriving at his home, she began having light


                                             7
contractions so he called an ambulance. While they were waiting for the ambulance,
mother admitted that she “got high” the night before. Because of this, father suspected
that the baby may have problems from the drugs but he did not know what to do. Father
said that he felt like he was being punished for something mother did. He admitted that
he “messed up” when he failed to complete his domestic violence classes, but claimed
that he was in classes at present. Father provided proof of enrollment and attendance at
three sessions.
       DCFS opined that based on its investigative findings to date, continued detention
from the care of the parents was in the best interests of the child. DCFS cited mother’s
“unresolved substance abuse issues, limited resources/family support, and a history of
domestic violence in her relationship with her husband.” As to father, DCFS indicated
that he had “unresolved criminal issues which is a result of domestic violence with the
mother and reportedly past substance abuse.” DCFS recommended that the juvenile
court sustain the petition as alleged, declare Miley a dependent of the court, and order
family reunification services and monitored visits for the parents.
Last minute information for the court
       In a last minute information for the court filed on March 21, 2013, DCFS attached
a copy of a police report from the Pasadena Police Department regarding a domestic
violence incident between the parents on January 1, 2012. The report revealed that father
was arrested for placing mother in a headlock, which caused mother to sustain bruises
and redness to her left bicep. Officer Lee was dispatched to the home at 2:25 p.m.
Mother reported that she and father had gotten into a fight. Mother added that the parents
were going through marital problems because of her methamphetamine addiction. For
the past two months, mother had been living apart from father because of her addiction.
However, as of the preceding day, she had voluntarily withdrawn from the drug program
in which she had been participating. Mother had come to the home to remove her
belongings. Because she had a lot of things, she asked father to help her move to MGM’s
apartment. As the parents left the building with several bags, father complained that he



                                             8
did not want to help mother move. Mother responded “I’ll get another guy to help then.”
Father “snapped” and grabbed her left bicep.
       Officer Lee interviewed a witness, Kevin S., who was standing outside his
residence when he heard the parents arguing. According to Kevin, father placed mother
in a headlock and slapped her face twice. After he shouted “hey” at father, father quickly
released mother. Based on statements from mother and Kevin, father was arrested,
booked for domestic violence, and transported to jail.
       At the jail, Officer Lee asked father what had happened. According to father, the
argument between him and mother started when father told mother he did not want her to
leave the drug rehabilitation program. Father acknowledged that he grabbed her right
bicep in an attempt to get her back into the residence. When mother turned her body
away from father to get away, father placed her in a headlock with his left arm and then
rubbed the top of her head with his right knuckles. Father claimed he was “playing
around.”
       The parents were also tested for drugs on March 8, 2013. Mother tested positive
for methamphetamine. Father tested negative for drugs and alcohol.
       Father filed a petition for dissolution of marriage on March 22, 2013. He enrolled
in a parenting education and support group on March 18, 2013, and had attended 1 out of
20 sessions.
Adjudication
       The juvenile court adjudicated the petition on March 25, 2013. The parents
appeared with counsel. Father requested the counts against him be dismissed. Father’s
counsel argued that the alleged events involving altercations in front of R. took place
over two years before. Additionally, father argued that there was no evidence in any of
the materials that the physical altercations took place in R.’s presence, that father was not
in attendance at those hearings, and that he was unaware of the allegations that he had hit
mother in front of a minor. Father also argued that there was no nexus or risk of harm or
detriment to Miley from that previous alleged conduct.



                                              9
       Mother’s counsel joined with father’s arguments. Mother’s counsel stated: “I do
agree with father’s counsel in that the parents do not present a current risk of having any
altercations with each other as they are no longer together and father has filed for
dissolution of marriage.”
       Miley’s counsel asked that the court sustain the three counts against both parents.
Miley’s counsel stated:
              “With regards to the past domestic violence between the parents,
       even though Miley was not born at the time, it doesn’t seem that either
       parent has resolved any of the issues that led to the conflict that they had a
       couple years ago. I do think there is ongoing risk to Miley if she were
       returned to either of the parents’ care.”

       County counsel also requested that the court sustain the petition as pled.
       The juvenile court sustained counts b-1 and b-2 against mother. Count j-1 was
sustained against both parents. Count j-1 read:
               “The child, [Miley’s] mother [Michelle] and father [Mario] have a
       history of engaging in violent altercations in the presence of the child’s
       sibling, [R.]. On a prior occasion, the father struck the mother’s arm
       inflicting bruises to the mother’s arm. On a prior occasion, the father
       punched a hole in the door of the sibling’s home. On a prior occasion, the
       mother kicked and punched the door in the sibling’s home. The child’s
       sibling, [R.] was a dependent of the Juvenile Court. Such violent conduct
       on the part of the parents places the child at risk of harm.”

       The court declared Miley a dependent of the court under section 300, subdivisions
(b) and (j). Pursuant to section 361, subdivision (b), the court found by clear and
convincing evidence that there was a substantial danger to the baby if she were returned
home to the parents and that there were no reasonable means to protect the child without
removal from the parents’ custody.4



4      While the minute order cites section 361, subdivision (b), the juvenile court
discussed the substantial danger standard set forth in section 361, subdivision (c)(1). We
therefore assume that the court’s reference to subdivision (b) was a typographical error,
and that the court meant to cite section 361, subdivision (c)(1).

                                             10
       The court then inquired as to whether the child was living with both parents at the
time of removal. Miley’s counsel informed the court that the child was taken from the
hospital and placed in suitable placement. The court then stated, “So this is removal from
the mother.”
       The court ordered reunification services for both parents. Father was ordered to
complete parenting and individual counseling given that he had already been ordered by
the criminal court to complete a 52-week domestic violence program. The parents’
visitation was ordered supervised.
       Father’s counsel’s request that the visits could be as often as they could be
scheduled, was granted. Father’s counsel also requested unmonitored visits for father.
The court stated: “No. He needs to make some progress in domestic violence in his
counseling program and individual counseling programs.”
       Father’s counsel did not make any objections to the dispositional orders, nor did
he request custody of Miley on father’s behalf.
       On March 25, 2013, father filed a notice of appeal.
                                      DISCUSSION
I. Standard of review
       We review the juvenile court’s jurisdictional findings under the substantial
evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 829 (David M.); In re
Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, we review the record
to determine whether there is any reasonable, credible, and solid evidence to support the
juvenile court’s conclusions. We resolve all conflicts in the evidence, and make all
reasonable inferences from the evidence, in support of the court’s orders. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393 (Savannah M.).)
       We also review the juvenile court’s decision to remove a child from a parent’s
custody under the substantial evidence standard. (In re Amos L. (1981) 124 Cal.App.3d
1031, 1038 [“The record in the case . . . discloses that Amos was removed from his
mother’s custody and placed in a foster home. . . . [T]he correct standard of proof to be
applied at the dispositional hearing in such a case is clear and convincing evidence.


                                             11
However, on appeal, the substantial evidence test applies to determine the existence of
the clear and convincing standard of proof, the same as in other cases”].)
II. Justiciability
       In this appeal, father does not challenge the sustained allegations as to mother. He
only challenges the findings and orders as to him. Father acknowledges that some courts,
including this court, have refused to address specific jurisdictional findings based on
mootness and non-justiciability grounds in cases such as this where some, but not all, of
the jurisdictional findings are challenged. (In re Ashley B. (2011) 202 Cal.App.4th 968,
979 [“As long as there is one unassailable jurisdictional finding, it is immaterial that
another might be inappropriate”]; In re I.A. (2011) 201 Cal.App.4th 1484, 1491 [“it is
necessary only for the court to find that one parent’s conduct has created circumstances
triggering section 300 for the court to assert jurisdiction over the child”].) “[A]n
appellate court may decline to address the evidentiary support for any remaining
jurisdictional findings once a single finding has been found to be supported by the
evidence. [Citations.]” (In re I.A., supra, at p. 1492.)
       Father argues that in this case, there are valid reasons for addressing the merits of
his arguments. In support of his position, father cites In re Drake M. (2012) 211
Cal.App.4th 754 (Drake M.). In Drake M., the father challenged a single jurisdictional
finding against him involving his use of medical marijuana. DCFS argued that the
unchallenged findings as to mother would continue to support jurisdiction, therefore
father’s appeal was nonjusticiable. (Id. at p. 762.) The Drake M. court decided to
consider the merits of father’s appeal, stating:
              “Here, the outcome of this appeal is the difference between father’s
       being an ‘offending’ parent versus a ‘non-offending’ parent. Such a
       distinction may have far-reaching implications with respect to future
       dependency proceedings in this case and father’s parental rights. Thus,
       although dependency jurisdiction over Drake will remain in place because
       the findings based on mother’s conduct are unchallenged, we will review
       father’s appeal on the merits.”

(Drake M., supra, 211 Cal.App.4th at p. 763.)



                                             12
       Father argues that the jurisdictional findings as to him could have an effect on
current or future dependency proceedings. The outcome of the appeal could mean the
difference between father being an “offending” versus a “non-offending” parent. In
addition, the findings serve as the basis for dispositional orders that are also challenged
on appeal. (Drake M., supra, 211 Cal.App.4th at pp. 762-763 [suggesting that the Court
of Appeal should reach the merits of a challenge to a jurisdictional finding when the
finding serves as the basis for dispositional orders that are also challenged on appeal].)
       Here, as in Drake M., the jurisdictional findings serve as the basis for a challenged
dispositional order and may be prejudicial in the current or future dependency
proceedings. We agree with father that the outcome of the appeal could mean the
difference between father being an “offending” rather than a “non-offending” parent.
(See Drake M., supra, 211 Cal.App.4th at pp. 762-763.) We therefore address father’s
contentions on the merits.5
III. Substantial evidence supports the true finding under section 300, subdivision (j)
       Section 300, subdivision (j) provides a basis for jurisdiction if the child’s sibling
has been abused or neglected as defined in subdivisions (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. In making a finding under section 300, subdivision (j), the court is directed
to “consider the circumstances surrounding the abuse or neglect of the sibling, the age


   5    The First Appellate District has taken a different position. In In re I.A., Division
One wrote: “Father asks us to review the evidentiary support only for the juvenile court’s
jurisdictional findings involving his conduct. Because he does not challenge the
jurisdictional findings involving Mother’s drug abuse, however, any decision we might
render on the allegations involving Father will not result in a reversal of the court’s order
asserting jurisdiction. The juvenile court will still be entitled to assert jurisdiction over
the minor on the basis of the unchallenged allegations. Further, the court will still be
permitted to exercise personal jurisdiction over Father and adjudicate his parental rights,
if any, since that jurisdiction is derivative of the court’s jurisdiction over the minor and is
unrelated to Father’s role in creating the conditions justifying the court’s assertion of
dependency jurisdiction.” (In re I.A., supra, 201 Cal.App.4th at p. 1492.) We choose to
follow the analysis set forth in Drake M.


                                              13
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.” (§ 300, subd. (j).)
       The juvenile court had evidence before it that allegations against father arising
from events in September 2011 had been sustained in a prior dependency proceeding
involving Miley’s half sister, R. Specifically, the sustained allegations stated that father
and mother had a history of engaging in violent altercations in the child’s presence, and
that father had inflicted bruises on mother’s arm and had kicked and punched a door in
the child’s home. The dependency matter involving R. terminated with a family law
order that granted R.’s father full physical custody.
       In addition, the court had before it a police report dated January 1, 2012, when an
officer was dispatched to respond to allegations that father had hit mother. Mother
sustained bruises to her left bicep after father grabbed her. A witness indicated that father
put mother in a head lock and slapped her twice. Father was arrested for this incident.
Father also admitted that he had been ordered to complete a 52 week domestic violence
class as a result of this arrest, but that he failed to do so.
       This evidence was sufficient to support the juvenile court’s decision to sustain the
allegations in count j-1. Miley’s half-sibling had been a victim of abuse, including
violence between mother and father in the child’s presence. In addition, there was
evidence that the domestic violence issues that caused the removal of R. from mother and
father were unresolved. The domestic violence continued, resulting in father’s arrest on
New Year’s Day 2012. Even after that arrest, father failed to properly address the
domestic violence issues. Specifically, he failed to complete a court ordered domestic
violence program. Under the circumstances, the juvenile court had sufficient evidence
that Miley would be subjected to the same risk of domestic violence that caused R.’s
removal from the home.
       Father sets forth several arguments as to why the evidence before the juvenile
court was insufficient. Father cites In re Rocco M. (1991) 1 Cal.App.4th 814, 824, for the
proposition that the circumstances at the time of the hearing must be such that the child


                                                14
will be at substantial risk of harm. Father argues that physical violence between a child’s
parents support the exercise of jurisdiction only if the evidence shows that the harm is
likely to continue and that it places the child directly at risk of harm. (In re Daisy H.
(2011) 192 Cal.App.4th 713, 717 (Daisy H.).)
       In Daisy H., the mother informed the social worker that seven years before the
petition had been filed, father pulled her hair and choked her. (Daisy H., supra, 192
Cal.App.4th at p. 717.) The Court of Appeal determined that the evidence was
insufficient to show that past or present domestic violence between the parents placed the
children at a current risk of substantial harm. The parents had separated, there was no
evidence that the children were exposed to past violence and there was no evidence of
any ongoing violence. The children, who were 9 and 13, indicated that they had never
witnessed physical violence between their parents. (Ibid.)
       Here, in contrast, the parents’ physical violence in the home led DCFS to file a
dependency petition on behalf of Miley’s sibling, R. The allegations against mother and
father were sustained, and they were ordered to complete domestic violence programs.
Neither parent completed the required program, and the domestic violence between them
continued, as evidenced by the January 1, 2012 incident.
       Father also relies on David M. There, the Court of Appeal concluded that the
Orange County Social Services Agency did not meet its burden of proving failure to
protect and the abuse of sibling pursuant to section 300, subdivisions (b) and (j) because
there was no substantial risk of serious harm to the two children at issue at the time of the
jurisdiction hearing. The court stated that mother’s mental and substance abuse problems
and father’s mental health problems were never tied to any actual harm to the children or
a substantial risk of such harm. (David M., supra, 134 Cal.App.4th at p. 830.) Regarding
a previous petition which had been filed on behalf of an older sibling, the court noted that
the juvenile court failed to take judicial notice of the record in that case. The court
queried, “What services were offered, and what were the circumstances of mother’s
apparent failure to fulfill her case plan and reunify with Aaron? We cannot tell from the



                                             15
record before us, and we do not see how the juvenile court could have done so, either.”
(Id. at p. 832.)
       Similarly, in In re Ricardo L. (2003) 109 Cal.App.4th 552, 566 (Ricardo L.), the
Court of Appeal discussed a jurisdictional challenge under section 300, subdivision (j)
and noted that the record of the prior dependency proceeding involving Ricardo’s older
siblings was not admitted to evidence. The Court of Appeal noted that the social services
department was relying on the fact that the siblings had been under the protection of the
juvenile court for many months without resolution. However, there was no evidence of
the reasons behind the dependency of the siblings, no evidence of the substance abuse
histories of the parents, and no history of their neglect or failure to provide medical
treatment or shelter to those siblings. The court concluded, “Without the history of abuse
and neglect, it is nearly impossible to determine whether Ricardo, Jr. is at risk of
suffering from the same abuse and neglect.” (Id. at p. 567.)
       Father argues that as in David M. and Ricardo L., R.’s case file was not attached to
the petition or reports in this case, and the juvenile court did not reference this item. The
juvenile court never took judicial notice of R.’s case file nor did it state that it had
considered the file.
       Father cites no law mandating that the juvenile court take judicial notice of the
entire sibling case file as a prerequisite to sustaining a jurisdictional finding under section
300, subdivision (j). Here, there was ample evidence before the juvenile court of the
problems which led to R.’s detention and removal from mother and father. There was
evidence of the specific allegations against mother and father. Mother admitted that she
had “messed up” by not completing her programs to reunite with R., and father admitted
to failing to complete a court ordered domestic violence program. In addition, a police
report revealed the continuing domestic violence between the parents even after R. was
removed from their custody.6

6      Mother has noted that the sustained petition, count j-1, does not refer to the more
recent incident of domestic violence between mother and father, which occurred January
1, 2012, prior to Miley’s birth. Mother has also stated that there is no evidence that this

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       DCFS’s reports, which contained hearsay evidence concerning the previous
dependency proceeding involving R., constituted sufficient evidence to support a finding
of jurisdiction under section 300, subdivision (j). (§ 355, subd. (b) [“A social study
prepared by the petitioning agency, and hearsay contained within it, is admissible and
constitutes competent evidence upon which a finding of jurisdiction pursuant to Section
300 may be based”].) The juvenile court was not required to take judicial notice of the
case file in the matter involving Miley’s sibling.
       Finally, father argues that none of the domestic violence incidents discussed in the
record support jurisdiction of Miley because none of them occurred after Miley was born
on January 27, 2013. Mother and father had separated, and father subsequently filed a
petition for dissolution of marriage. Thus, father argues, there is no substantial risk that
Miley will be exposed to domestic violence between the parents.
       Father argues for an interpretation of the evidence which is favorable to him.
However, we are bound to resolve all conflicts in the evidence, and make all reasonable
inferences from the evidence, in support of the court’s orders. (Savannah M., supra, 131
Cal.App.4th at p. 1393.) Evidence that the juvenile court sustained allegations of
domestic violence between mother and father which put R. at risk of harm; that R. was
ultimately placed with her father and removed from mother’s custody; that father and
mother continued to engage in violent physical altercations even after their separation;
and that mother and father failed to complete domestic violence counseling is sufficient
to support the juvenile court’s conclusion that a substantial risk to Miley remained.
Furthermore, the interviews with father showed a failure on father’s part to take
responsibility for his actions. Instead, he minimized the severity of the domestic violence
which has taken place between the parents. For example, while he admitted being
arrested for domestic violence, he stated that his offense was “not really hitting” mother.

physical altercation took place in R.’s presence. However, the fact that the incident was
not specifically mentioned in the petition does not prevent the juvenile court from
considering the event in determining whether Miley is at current risk of harm. Pursuant
to section 300, subdivision (j), the juvenile court may consider “any . . . factors the court
considers probative in determining whether there is a substantial risk to the child.”

                                             17
A parent’s denial is a relevant factor in determining whether the parent is likely to modify
his behavior. (In re Esmerelda B. (1992) 11 Cal.App.4th 1036, 1044.) Under the
circumstances, the totality of the evidence before the juvenile court supported the finding
of substantial risk of harm to Miley under section 300, subdivision (j).
IV. Substantial evidence supported removal from father
       Father also challenges the court’s decision not to place Miley with father.
Initially, the juvenile court indicated that its decision was to remove Miley from the
custody of both parents pursuant to section 361. Then, upon learning that Miley had been
taken from the hospital where she was born, the juvenile court stated, “So this is removal
from the mother.” To the extent the removal was from mother only, the parties argue, the
appropriate statute for the court to consider in regards to custody for father was section
361.2, which provides for placement with the noncustodial parent. However, the record
indicates that the court removed Miley from her parents’ custody pursuant to section 361.
Father argues that no substantial evidence supported removal from father under either
statute.
       To the extent that the juvenile court relied on the wrong statute, i.e., section 361
rather than 361.2, we find this to be harmless error. Section 361, subdivision (c)(1)
requires a stricter standard for removal from parental custody. Specifically, it requires a
finding by clear and convincing evidence of a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the child if the child is returned
home. (§ 361, subd. (c)(1).) Section 361.2 permits placement with a noncustodial parent
unless there is a finding by clear and convincing evidence that such placement would be
detrimental to the safety, protection, or physical or emotional well-being of the child.
(§ 361.2, subd. (a).) Thus, if the juvenile court relied on the substantial danger standard
found in section 361, such finding necessarily encompassed a finding of detriment to the
child as required by section 361.2.7

7      DCFS agrees that the appropriate statute for the juvenile court’s decision not to
place Miley with father was section 361.2. However, DCFS argues that father forfeited
his rights under this statute due to his failure to affirmatively request custody of Miley.

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       Substantial evidence supported the juvenile court’s findings under either the
standard set forth in section 361, subdivision (c)(1) or the standard set forth in section
361.2, subdivision (a). The evidence before the court included evidence that Miley’s
older sibling had been subjected to domestic violence between father and mother and
removed from their home for that reason. It showed failure on father’s part to complete a
domestic violence program ordered by the court, and continued domestic violence
between the two parents even after they had separated. This evidence supported the
juvenile court’s decision not to place Miley in father’s custody.




As DCFS points out, the relevant language of section 361.2 reads: “When 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 that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent would be detrimental
to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2,
subd. (a), italics added.)
        We note that father did request custody of Miley in court at the detention hearing
on February 1, 2013. However, DCFS is correct that at the time of the dispositional
hearing, father did not make an affirmative request for custody of Miley, he merely
sought unmonitored visits. We find that we need not address the question of whether
father’s initial request is sufficient to prevent forfeiture of a custody request under section
361.2. As set forth above, a finding of detriment to the child under section 361.2 was
necessarily encompassed within the juvenile court’s finding that a substantial danger to
Miley existed if she were released to the custody of either parent. The juvenile court
made findings sufficient to support its dispositional order under either statute.
        However, to the extent that father complains that the juvenile court did not make
findings either in writing or on the record pursuant to the mandate in section 361.2,
subdivision (c), we find that father forfeited this issue on appeal by failing to raise section
361.2, or its requirement that the court set forth specific findings, at the time of the
dispositional hearing.

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                                 DISPOSITION
      The orders are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                          ____________________________, J.
                                          CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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