Filed 11/14/13 In re A.N. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


In re A.N., a Person Coming Under the                                B248164
Juvenile Court Law.                                                  (Los Angeles County Super. Ct.
                                                                      No. CK95582)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

A.B.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Donna
Levin, Juvenile Court Referee. Affirmed.
         Grace Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.


                                          _______________________
       A.B. (father) appeals from a March 14, 2013 order declaring his son, A.N., a
dependent of the court under Welfare and Institutions Code section 300, subdivisions (a)
and (b).1 Father contends the court violated his due process rights by questioning I.H.
(mother) directly. Father forfeited his ability to raise the issue on appeal because he did
not object at the jurisdictional hearing. Had father objected, the court’s actions still did
not violate his due process rights. We affirm the court’s jurisdictional findings and
dispositional orders.


                    STATEMENT OF FACTS AND PROCEDURE


       On September 19, 2012, the Los Angeles County Department of Children and
Family Services (Department) filed a dependency petition alleging that two-year-old
A.N. was a minor described by section 300, subdivisions (a) and (b). The petition alleged
domestic violence places the child at risk of harm (§ 300, subd. (a)), and parents have
failed to protect the child from such harm (§ 300, subd. (b)).
       A.N. was born prematurely during mother’s 26th week of pregnancy. He was
discharged from the hospital eight months after birth with a tracheotomy, connected to a
ventilator machine, and with a feeding tube. By the time he was two years old, he still
mostly ate through his feeding tube, but could ingest small amounts of pureed food and
water by mouth.
       On September 30, 2011, the police were called to the family home for domestic
violence. When the police arrived, mother was breathing hard, had a high pulse, and
redness on her left forearm. She said father had slapped and punched her. A nurse who
helped care for A.N. reported she was outside the front door and heard mother and father
and sounds of a “possible struggle.” The nurse observed mother crying and saw redness
on her forearm and the left side of her face. Father reported he had been caring for A.N.

       1
        All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.



                                              2
all night and was tired. When he tried to wake mother, she started arguing with him and
hit him in the lip and kicked him in the knee. Police arrested father.
       At the hospital, mother reported that father has assaulted her on other occasions,
but this is the first time the police have been called. She stated that father physically
abuses her about twice a month, doing things like grabbing her by the hair and punching
or slapping her. She believes his abuse may have caused complications with her
pregnancy. She refused an emergency protective order. The district attorney ultimately
decided against prosecuting father.
       Mother went to a police station on September 5, 2012. The police report stated
she “claimed ongoing mental and physical abuse, however would not elaborate or
provide any specific information. [Mother] was uncooperative, declined a report and
refused to prosecute. She left the station against advice of officers to care for her son.”
       On the same date, mother signed an Ex Parte Request for a Temporary Restraining
Order (TRO application) against father. The request included claims that A.N. suffered
from a lung disease, father smoked cigarettes around A.N., father struck mother with his
fist and hands several times in A.N.’s presence, causing bruising and loss of
consciousness.
       On September 12, 2012, the Department received a call alleging mother was not
adequately caring for A.N. A children’s social worker (CSW) went to the family home
and spoke with father, who expressed concern that mother did not know how to operate
the medical equipment A.N. needs and does not spend time playing with A.N. He said
mother would take A.N. to the maternal grandmother’s home without the child’s
necessities or toys. The CSW also visited mother and A.N. at the maternal
grandmother’s home. Mother told the CSW that father verbally and physically abused
her and had been arrested for domestic violence on September 30, 2011. Mother also
said she had filed a TRO application and gave the CSW a copy of the notice of the court
hearing scheduled for September 24, 2012. On September 14, 2012, the CSW proposed a
voluntary plan in which father would move out and both parents would participate in
services. Parents refused.


                                              3
       The dependency court held a detention hearing on September 20, 2012. It ordered
the child detained and released to mother, who would reside with the maternal
grandmother. Father had monitored visitation. Father enrolled in a domestic violence
batterer’s program and began individual therapy.
       On November 13, 2012, the Department filed an amended petition with additional
factual allegations under section 300, subdivisions (a) and (b). The original petition only
referred to the domestic violence incident occurring on September 30, 2011. The first
amended petition added allegations concerning mother’s September 5, 2012 visit to the
police station and the fact that she left the family home with A.N. on September 12, 2013,
due to ongoing domestic violence.
       On March 14, 2013, the dependency court held a hearing to determine jurisdiction
and disposition. Neither the Department nor mother called any witnesses. Father’s
appointed counsel called mother and father to testify. The court posed some questions to
father and recalled mother for further questioning. The court’s questioning focused on
the parents’ claim that mother’s sister wrote the TRO application, and mother did not
understand what she was signing when she signed it. The court sustained the allegations
under section 300, subdivisions (a) and (b), placed the child with mother, and ordered
visitation and reunification services for father.


                                       DISCUSSION


       Father’s only contention on appeal is that the dependency court violated his right
                                                                 2
to due process when it recalled mother for further questioning. The Department
contends father forfeited the issue because he failed to object to the court’s questioning at
the time of the jurisdictional hearing. We agree that father forfeited his right to raise the
issue on appeal. We further conclude that had the issue not been forfeited, the court acted


       2
          Father does not argue there was insufficient evidence to support the court’s
jurisdictional findings or dispositional orders.


                                               4
within its statutory authority under Evidence Code section 775 when it questioned
mother.


Father forfeited his right to raise the due process issue on appeal when he did not
object to the dependency court’s questions.

       As a general rule, a claim of error is forfeited on appeal if it is not raised in the
trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “The purpose of this rule is to
encourage parties to bring errors to the attention of the trial court, so that they may be
corrected.” (Ibid.) The rationale behind the forfeiture rule is that it would be
“inappropriate to allow a party not to object to an error of which the party is or should be
aware . . . .” (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.) “Dependency matters
are not exempt from this rule.” (In re S.B., supra, at p. 1293; see, e.g., In re Dakota S.,
supra, at p. 502 [failure to object to lack of supervising agency’s assessment of
prospective guardian]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to
challenge scheduling of permanency planning hearing when court determined that no
reasonable reunification efforts were made].)
       The forfeiture rule is not applied automatically, however. An appellate court may
consider an issue to which a party did not object, if the objection would have been futile.
(People v. Anderson (2001) 25 Cal.4th 543,587.) We have “discretion to consider
forfeited claims” although that “discretion must be exercised with special care” in
dependency cases. (In re S.B., supra, 32 Cal.4th at p. 1293.) “Because these proceedings
involve the well-being of children, considerations such as permanency and stability are of
paramount importance.” (Ibid.) This court also has discretion to consider questions of
constitutional import, even where the parties have forfeited their right to raise the issue
on appeal. (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.)
       Father did not object when the dependency court recalled mother for additional
questioning, nor did he object to the form or substance of any of the court’s questions.
By failing to object to the propriety of the court’s questions, he has not preserved the



                                               5
issue for our review. Father contends it would have been futile to object to the court’s
questions. Nothing in the record supports that contention. Had father objected at the
time, the court might have altered its approach, perhaps rephrasing its own questions or
instructing the attorneys to ask additional questions. In fact, the court offered all counsel
the opportunity to ask additional questions. Father did not take advantage of the offer,
nor did he articulate any concern with the court’s questions.
       Father further argues that because he is raising a constitutional issue and the facts
are not contested, this court has discretion to examine the issue in spite of his failure to
object at trial. (In re Spencer S., supra, 176 Cal.App.4th at p. 1323.) Even if we were to
exercise such discretion, which we decline to do in this case, father’s claim fails because
the dependency court did not exceed its established authority to clarify witness testimony.


The dependency court appropriately asked questions in its role as a neutral arbiter of
the facts.

       Evidence Code section 775 permits the court to “call witnesses and interrogate
them the same as if they had been produced by a party to the action, and the parties may
object to the questions asked and the evidence adduced the same as if such witnesses
were called and examined by an adverse party. Such witnesses may be cross-examined
by all parties to the action in such order as the court directs.”
       It is entirely proper for a judge to ask a witness questions to develop all the facts
regarding the witness’s testimony. (People v. Carlucci (1979) 23 Cal.3d 249, 255-256.)
The judge has “[c]onsiderable latitude” in this respect. (Ibid., quoting People v.
Lancellotti (1957) 147 Cal.App.2d 723, 730.) A judge has authority to question
witnesses regardless of whether the judge or a jury is the fact-finder. (People v. Carlucci,
supra, at pp. 255-256.) The judge is “‘entrusted with the grave task of determining where
justice lies under the law and the facts between the parties who have sought the
protection of our courts. Within reasonable limits, it is not only the right but the duty of a
trial judge to clearly bring out the facts so that the important functions of his office may



                                               6
be fairly and justly performed. [Citations.]’ [Citation.]” (Conservatorship of Pamela J.
(2005) 133 Cal.App.4th 807, 827.) It is a judge’s duty to “assure that ambiguities and
conflicts in the evidence are resolved insofar as possible.” (People v. Carlucci, supra, at
p. 255.)
       Father contends the dependency court acted as an advocate rather than a neutral
arbiter by questioning mother about the TRO application filed on September 6, 2012.
The Department responds that the court’s questions were merely to clarify whether
mother had prepared the TRO application and to resolve conflicting evidence about
father’s actions towards mother.
       The TRO application introduced into evidence by father was signed by mother and
included statements regarding father’s past abusive conduct. The Department’s detention
report also stated that mother had given the CSW a copy of the TRO, stating she had filed
it. Under questioning by father’s counsel, mother testified father never hit her, and she
had lied to police about the alleged abuse. She testified she had signed the TRO
application without understanding its contents. Both father and mother testified that
mother’s sister prepared the TRO application because mother’s parents and sister were
against their marriage. In response to questions from the dependency court about
whether mother had written the TRO application, father responded. “She was not the
author of those papers.” The court then explained that it needed further clarification from
mother: “--so all of these papers, and I am going to call the mother back on the stand
because that is an interesting question. These are all under penalty of perjury and I need
to know if somebody else filled out this paperwork rather than the mother. So I am going
to excuse the father and call the mother back to the stand.”
       Father argues that because the dependency court described the TRO application as
being signed “under penalty of perjury,” it was acting as an advocate and even exposing
mother to liability for perjury. We disagree. The court was fulfilling its duty to resolve
conflicting evidence and arrive at the truth. The evidence highlighted a stark
inconsistency between mother’s testimony at the jurisdiction hearing, on the one hand,
and her report to police in 2011, the contents of the September 5, 2012 TRO application,


                                             7
and statements to the CSW on September 12, 2012, on the other hand. Judging from the
nature of the court’s questions to mother, mother was recalled to clarify her explanation
of why she made statements under penalty of perjury that were in conflict with her sworn
testimony. In finding jurisdiction under section 300, subdivisions (a) and (b), the court
discredited the parents’ testimony, specifically commenting on mother’s lack of
credibility: “mother was either lying at the outset of this case or she’s lying now, under
oath both times, both times subject to perjury.”
       We reject father’s contention that the dependency court infringed his due process
rights by acting as an advocate when questioning mother.


                                     DISPOSITION


       The dependency court’s order sustaining the petition and finding jurisdiction is
affirmed.



              KRIEGLER, J.


We concur:



              MOSK, Acting P. J.



              KUMAR, J.*




*     Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                             8
