Filed 4/18/16 In re Seth C. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re SETH C., a Person Coming Under the
Juvenile Court Law.
                                                                 D069245
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J519239A)
         Plaintiff and Respondent,

         v.

JONATHAN C.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Jean

Pfeiffer Leonard, Judge. (Retired Judge of the Riverside Sup. Ct. assigned by the Chief

Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.



         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.
          Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.

          Jonathan C. appeals the jurisdiction and disposition orders1 declaring his minor

son Seth C. a dependent of the juvenile court under Welfare and Institutions Code

section 300, subdivision (b)(1).2 Jonathan contends that there was insufficient evidence

to support the court's findings. Jonathan also argues that the court erred in proceeding

under section 300, subdivision (b)(1), rather than section 300, subdivision (g). We

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

          On August 7, 2015, the San Diego County Health and Human Services Agency

(the Agency) received a report that Seth's father was currently incarcerated and that Seth

was staying with his adult sister, Ashley C., a drug user with an outstanding warrant for

her arrest. The reporting party said that there was no food in the house and that Seth had

been missing school due to lack of transportation. On August 13, 2015, the social worker

made an unannounced home visit to Seth's reported location with San Diego County

Sheriff's Department deputies. Ashley and Seth were present and the deputies detained




1      In a dependency case, the disposition order is the first appealable order and
constitutes the judgment in the case. (In re S.B. (2009) 46 Cal.4th 529, 532; In re Melvin
A. (2000) 82 Cal.App.4th 1243, 1250.)

2       Unless otherwise indicated, further statutory references are to the Welfare and
Institutions Code.
                                               2
Ashley on outstanding warrants. The Agency detained Seth and placed him in a foster

home. At the time of his detention, Seth was 16 years old.

       The social worker spoke with Jonathan at the institution where he was incarcerated

on August 14, 2015. Jonathan had been arrested on July 8, 2015, and charged with five

counts of arson on forest land (Pen. Code, § 451(c)). Jonathan admitted that he had not

designated anyone to care for Seth at the time of his arrest, but claimed that he had given

Seth his EBT (Electronic Benefits Transfer) card. Jonathan stated that Ashley was

"hooked on meth" and "has a bad drug problem," and further noted that Ashley had

"learned how to shoot up from her mother." Jonathan said that he would approve

placement of Seth with Jonathan's ex-girlfriend or her mother. The ex-girlfriend was not

a viable placement because she had been arrested 40 times between 2003 and 2015

(including for stabbing Jonathan) and had a current warrant out for her arrest. The social

worker was unable to locate the ex-girlfriend's mother. During a later interview,

Jonathan claimed that he left Seth with Robin C. and Cara C. (Jonathan's sisters), and that

Seth left them to go back home to Ashley because he was upset that Robin and Cara

would not bail Jonathan out. Jonathan admitted that even when Seth lived with him, he

had problems getting Seth to go to school. Jonathan suggested that Seth be placed in the

home of Seth's best friend.

       The social worker contacted several family members and was unable to

immediately identify an appropriate caregiver for Seth. Following Jonathan's arrest in

July 2015, he would not agree to allow Cara and Robin to care for Seth, and refused to

sign paperwork allowing Cara to act as temporary guardian. Cara reported receiving text

                                             3
messages from Seth and Ashley stating that they had no food, and said that she had

provided food to them several times since Jonathan's arrest. Cara was concerned about

Seth "being subjected to illegal drugs and a lack of food," and noted that Seth had

previously used illegal drugs at a nearby skate park. Jonathan's father told the social

worker that the lease on the home where Seth and Ashley were living would terminate on

August 15, 2015, and he did not believe that Ashley had made any arrangements for a

place to live after that date. Jonathan's father also stated that his relationship with Seth

was strained because Seth was angry with the family for refusing to bail Jonathan out.

Seth's mother initially could not be located.3

       The social worker interviewed Seth. Seth said that he was in the vehicle with his

father when his father was arrested and that the law enforcement officers took him home.

Seth acknowledged that his father did not communicate with law enforcement regarding

who would care for Seth. Seth stated that there was "always" food in the home and

denied any knowledge of his sister's drug use. Seth admitted to using marijuana at the

skate park, but later said that this had occurred on only one occasion, three years ago. In

addition, the social worker spoke with Seth's school counselor, who reported that Seth's

family had lacked stability even before Jonathan was arrested and that Seth had missed a

lot of school, with 54 unexcused period absences since school began on July 16, 2015.




3      Seth's mother was eventually located, but was not a viable caregiver. The court
made a finding of detriment as to her "because of her long standing drug and alcohol
issues" and "her severe mental health issues."
                                               4
       On August 17, 2015, the Agency filed a juvenile dependency petition on behalf of

Seth. The petition alleged under section 300, subdivision (b)(1) that Jonathan left Seth

inadequately supervised and without adequate provisions for support. Specifically, the

petition alleged that Jonathan left Seth in the care of an adult sibling with a substance

abuse problem, who was later arrested, and the whereabouts of Seth's mother were

unknown, resulting in a substantial risk that Seth will suffer serious physical harm or

illness. The petition further alleged, under section 300, subdivision (g), that Seth's father

was incarcerated and unable to arrange appropriate and adequate care and the

whereabouts of his mother were not known.

       A detention hearing was held on August 18, 2015, and the court declared Jonathan

to be the presumed father of Seth, pursuant to Family Code section 7540. The court

found that a prima facie case existed for Seth's continued detention under section 300,

subdivisions (b) and (g).

       The jurisdictional hearing was held on October 1, 2015. The parties agreed to

proceed by way of a document trial. The Agency moved to dismiss the section 300

subdivision (g) count, and Jonathan's counsel indicated that they had no objection to the

dismissal. Seth's mother had been located prior to the hearing and was represented by

counsel, but did not contest jurisdiction. Jonathan's counsel opposed the section 300

subdivision (b) allegations, arguing that Jonathan had not left Seth inadequately

supervised, based on Jonathan's contention that he had left Seth in the care of Jonathan's

sisters and never intended to leave Seth in Ashley's care. The court noted that regardless

of Jonathan's intentions, "there's been no plausible explanation offered as to how [Seth]

                                              5
ended up at his sister's house." The court sustained the petition and made a true finding

on the count under section 300, subdivision (b) by clear and convincing evidence as to

the following allegations:

            "On or about July 8, 2015 to the present the child's parent left the
            child inadequately attended and inadequately supervised in that
            when the father was arrested. He left the child without adequate
            provisions for support and in the care of an adult sibling that has a
            substance abuse problem. The sibling was arrested on 8-13-2015
            and the whereabouts of mother were unknown and there is a
            substantial risk the child will suffer serious physical harm or illness."
            (§ 300, subd. (b).)


       The dispositional hearing was held on November 16, 2015. The court declared

Seth a dependent of the court and removed him from Jonathan's custody. The court

placed Seth with an approved family member and ordered reunification services for

Jonathan.

                                        DISCUSSION

         A. There is Substantial Evidence to Support the Jurisdictional Finding

       Jonathan contends that there is no substantial evidence to support the jurisdictional

finding under section 300, subdivision (b).

1. Governing law and standard of review

       "At the jurisdictional hearing, the court determines whether the minor falls within

any of the categories specified in section 300." (In re Veronica G. (2007)

157 Cal.App.4th 179, 185.) The juvenile court assumed jurisdiction under

subdivision (b)(1) of section 300. Under section 300, subdivision (b)(1), in relevant part,

a minor comes within the jurisdiction of the court if:

                                               6
             "[t]he child has suffered, or there is a substantial risk that the child
             will suffer, serious physical harm or illness, as a result of the failure
             or inability of his or her parent . . . to adequately supervise or protect
             the child, . . . or by the willful or negligent failure of the parent . . . to
             provide the child with adequate food, clothing, shelter, or medical
             treatment. . . ." (§ 300, subd. (b)(1).)

"The Agency has the burden of establishing that the basis for jurisdiction exists at the

time of the adjudication hearing." (In re K.S. (2016) 244 Cal.App.4th 327, 337.)

However, "a child need not have been harmed before removal is appropriate because the

focus of the statute is on averting harm to the child." (In re F.S. (2016) 243 Cal.App.4th

799, 813.)

       "A substantial evidence standard of review applies. [Citation.] We review the

entire record to determine whether substantial evidence supports the court's finding. We

resolve all conflicts, and draw all reasonable inferences in support of the findings.

[Citation.] 'We do not reweigh the evidence, evaluate the credibility of witnesses or

resolve evidentiary conflicts. The appellant has the burden to demonstrate there is no

evidence of a sufficiently substantial nature to support the findings or orders.' " (In re

Lana S. (2012) 207 Cal.App.4th 94, 103.)

2. Application

       Jonathan seeks reversal of the court's jurisdictional finding, arguing that the

availability of viable care options for Seth by the time of the jurisdictional hearing

eliminated any need for juvenile court jurisdiction. We disagree. As a threshold matter,

any improvement in Seth's circumstances was a direct result of Agency intervention. The

Agency located an appropriate placement for Seth. There is no reason to believe that


                                                   7
Seth would no longer have been at substantial risk of harm by the time of the

jurisdictional hearing if he had been left under Jonathan's control. In contrast, there is

substantial evidence in the record that Jonathan's conduct placed Seth at substantial risk

of serious harm. (§ 300, subd. (b)(1)).

       When Jonathan was arrested, he made no provisions for Seth's care. This resulted

in Seth remaining in the home he shared with Jonathan and his adult sister Ashley, in

Ashley's care. At home, Seth lacked food and transportation to school, resulting in more

than 50 missed periods. Moreover, when Seth was taken into Agency custody he was

only days away from termination of the lease for the home and thus, potential

homelessness. In addition, Seth had previously experimented with drugs, was distraught

as a result of his father's arrest, and his adult caregiver was someone who (by Jonathan's

own admission) was "hooked on meth" and had "a bad drug problem," placing Seth in

danger of succumbing to drug use himself. (See In re Rocco M. (1991) 1 Cal.App.4th

814, 825 ["trial court is entitled to infer that [an older child] is subjected to a substantial

risk of serious physical harm when he or she is placed in an environment allowing access

to drugs, with nothing to prevent him from succumbing to the temptation to ingest

them."].) Jonathan had the opportunity to remedy the situation, since his sisters had

volunteered to care for Seth, but he refused to sign guardianship papers. Instead,

Jonathan suggested his former girlfriend as a caretaker, a person with an extensive

criminal record, a history of violence, and an outstanding warrant for her arrest.

       Jonathan claims that he did not intend for Seth to end up living with Ashley and

that he had placed Seth with Seth's aunts from the beginning, but the record contradicts

                                                8
his assertions. Moreover, Jonathan's conduct does not reflect a simple one time mistake

at the time of his arrest, but rather, a continuing course of poor decisions in which he

disregarded Seth's safety and placed him at risk. Jonathan failed to designate a caregiver,

leaving Seth in a known harmful environment with an expiring lease, and then refused to

accept help from his family, at Seth's expense. Jonathan's failure to place his son's safety

and care above his own interests or emotions raises ongoing concerns about Seth's safety

in his custody. Jonathan's circumstances have not changed,4 nor has the risk that he

and/or Seth may again act out and turn away from familial help, leaving Seth homeless

and in danger. Contrary to Jonathan's assertions, the court could have reasonably

concluded the jurisdiction of the juvenile court is essential to ensure that Seth remains in

a safe and stable home.

       The various cases that Jonathan relies upon do not require a different result. In

each of those cases, the appellate courts reversed the trial court's jurisdictional findings

because either: (1) the parent's circumstances had dramatically changed by the time of

the hearing; (2) the allegations stemmed from a single isolated incident with no

continuing course of conduct; or (3) there was lack of substantial evidence that the minor

had ever been placed at risk of harm and the allegations were stale. For example, in In re

Christopher M. (2014) 228 Cal.App.4th 1310, 1319, the appellate court found that no

substantial evidence supported the jurisdictional findings under section 300, subdivisions

(b) and (g) when, at the time of the jurisdictional hearing, the previously incarcerated



4      Jonathan's release date is unknown.
                                              9
father was out of prison, employed, living with the paternal grandmother, consistently

visiting the minor, participating in an anger management program and individual

counseling and willing to pay for conjoint counseling with minor. In another case, the

appellate court found that there was insufficient evidence to state a basis for jurisdiction

under section 300, subdivision (b) when the petition alleged only one isolated incident of

the mother striking the minor, with nothing to suggest a likelihood of reoccurrence.

(In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1135; see In re Savannah M. (2005)

131 Cal.App.4th 1387, 1397 [leaving child in care of sexual abuser insufficient to

establish ongoing risk of harm when parents called the police and removed the abuser

immediately upon discovering the abuse].) In In re David M. (2005) 134 Cal.App.4th

822, 829-831, the appellate court found that the Agency failed to establish a substantial

risk of serious harm to the child when evidence of the mother's drug abuse and mental

health was from several years earlier and there was no evidence that those problems had

ever put the children at substantial risk of serious harm. (See In re Rocco M., supra,

1 Cal.App.4th at p. 825 [in dicta, appellate court "seriously question[ed]" whether failure

to supervise an 11-year-old child, one instance of abuse by a former babysitter, and

neglect in infancy were sufficient to establish present substantial risk of serious harm].)

       This case is distinguishable. As described above, Jonathan's circumstances have

not significantly changed; the allegations against Jonathan were not based on a single

incidence, but represented a course of conduct; and there was evidence that Jonathan's

conduct had placed Seth at substantial risk of serious harm. We see no basis to reverse

the court's jurisdictional finding under section 300, subdivision (b).

                                             10
             B. Jonathan Forfeited His Argument Regarding Section 300 (g)

       Jonathan asserts that the juvenile court erred in applying section 300,

subdivision (b) for its jurisdictional findings, rather than section 300, subdivision (g). We

disagree. As a threshold matter, the issue was forfeited during the dependency

proceeding by Jonathan's failure to object. "A party forfeits the right to claim error as

grounds for reversal on appeal when he or she fails to raise the objection in the trial court.

[Citations.] Forfeiture, also referred to as 'waiver,' applies in juvenile dependency

litigation and is intended to prevent a party from standing by silently until the conclusion

of the proceedings." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) At the

jurisdictional hearing, Jonathan's counsel was specifically asked whether there was any

objection to the Agency dismissing its section 300, subdivision (g) allegation and replied

that there was no objection.

       In any case, even if the issue had not been forfeited, it would not require reversal

on appeal. The burden is on the appellant to establish prejudicial error. (In re Bailey J.

(2010) 189 Cal.App.4th 1308, 1322-1323.) Jonathan has not met this burden. Jonathan

argues that the Agency should have brought allegations of Jonathan's failure to protect,

and the court should have analyzed the issue, exclusively under section 300,

subdivision (g), as the "more applicable" code section, since it deals with allegations of

inadequate provision of support by an incarcerated parent. In making this argument,

Jonathan appears to contend that the only issue in this case was whether Jonathan could

arrange for care for Seth during Jonathan's incarceration.



                                             11
       Jonathan relies on In re S.D. (2002) 99 Cal.App.4th 1068 and In re Aaron S.

(1991) 228 Cal.App.3d 202 for the proposition that the court should not assert

jurisdiction over the child of an incarcerated parent if the parent can arrange for the

child's care. In both cases, the section 300, subdivision (g) allegation was the only

jurisdictional ground that the juvenile court sustained. (In re S.D., at p. 1074; In re Aaron

S., at p. 207.) The holdings in In re Aaron S. and In re S.D. do not extend to incarcerated

parents who have been the subject of a true finding on any jurisdictional ground other

than section 300, subdivision (g). (In re A.A. (2012) 203 Cal.App.4th 597, 607.)

       The jurisdictional finding in this case was based on the section 300 subdivision (b)

allegation, the subdivision (g) allegation having been dismissed, and, as discussed, there

was substantial evidence to support the court's finding of dependency jurisdiction over

Seth based on Jonathan's conduct under section 300, subdivision (b)(1). Specifically,

there was substantial evidence to support the court's finding that there was "a substantial

risk that the child will suffer, serious physical harm or illness, as a result of the failure or

inability of his or her parent . . . to adequately supervise or protect the child, . . . or by the

willful or negligent failure of the parent . . . to provide the child with adequate food,

clothing, shelter, or medical treatment. . . ." Whether jurisdiction also could have been

sustained under section (g) is thus irrelevant.




                                                12
                                  DISPOSITION

      The judgment is affirmed.

                                                AARON, J.

WE CONCUR:



BENKE, Acting P.J.



MCDONALD, J.




                                      13
