Filed 4/14/16 In re J.R. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

In re J.R., a Person Coming Under the Juvenile
Court Law.

FRESNO COUNTY DEPARTMENT OF                                                                F072225
SOCIAL SERVICES,
                                                                           (Super. Ct. No. 15CEJ300118-1)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
CHRISTOPHER R.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza,
Judge.
         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
         Christopher R. appeals from the juvenile court’s dispositional order. He
challenges the sufficiency of the evidence upon which the juvenile court ordered his son,
J.R., removed from his physical custody. (Welf. & Inst. Code, § 361.)1 Christopher
contends the dispositional order must be reversed because there was no evidence J. was at
risk in his care and there were less restrictive alternatives to removal. He also contends
the juvenile court failed to recognize him as J.’s presumed father. We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
        In April 2015,2 Christopher was living in an apartment with his wife of about three
years, Tiffany R., their three-year-old son, J., and Tiffany’s girlfriend, Corina. Just eight
months earlier, in August 2014, the family’s voluntary family maintenance (VFM) case
was closed. That case began in October 2013, when Tiffany agreed to receive VFM
services after she tested positive for methamphetamines and the Department substantiated
allegations of general neglect and physical abuse. Christopher was aware of Tiffany’s
drug use. Both parents denied excessive corporal punishment and there were no signs of
physical abuse on J.
        In the early morning hours of April 19, the Fresno County Department of Social
Services (Department) received a referral that J.’s parents had engaged in a domestic
violence incident in which Christopher burned J. with a cigarette when he tried to grab J.
from Tiffany. The police responded and placed a section 300 hold on J. Tiffany, who
was on probation following a conviction for identity theft, was arrested for being under
the influence, while Christopher had reportedly fled the scene. A social worker who
responded to the home of J.’s maternal grandmother, Lucy G., where J. was located,
noticed a “very small red, blistery-like mark” on J. that was consistent with some type of
burn.
        On April 20, social workers interviewed Tiffany at the jail. According to Tiffany,
the day before she and Christopher had gotten into an argument at their apartment


        1   Undesignated statutory references are to the Welfare and Institutions Code.
        2   References to dates are to the year 2015, unless otherwise stated.


                                                2.
because he did not want her to go out. While Christopher was trying to get J., his
cigarette touched J. on the head. After that, Tiffany asked Corina to take J. away; Corina
took J. to Lucy, although “[s]he wasn’t supposed to.” Tiffany denied that Christopher hit
her or was physically aggressive toward her, and said there were no other incidents of
arguments or fighting. Tiffany claimed that Corina was trying to break them up. Tiffany
did not have any concerns about Christopher and was fine with Christopher having J. in
his care.
       Tiffany admitted to the social workers that she “snorted two lines” of “Meth” after
Corina took J., but she denied using drugs around J. Tiffany acknowledged that she had
completed a treatment program and classes during her VFM case. When asked when she
started using drugs again after the VFM case closed in August 2014, Tiffany responded
that she only used when she was “going through something,” but claimed that the night of
the incident was the first time she had used again.
       The social workers also interviewed Christopher and J.’s paternal grandmother,
Katherine R., at Katherine’s home. When Christopher was told that J. was in foster care,
Christopher stated he was glad that J. was not with Tiffany. Christopher told the social
workers he filed that morning for a divorce and custody of J., and for restraining orders
against Tiffany and Corina. Christopher did not have a criminal history in Fresno County
or a record of convictions in the state.
       Christopher told his version of what happened the night of the incident. At
midnight, Tiffany was drunk and high on marijuana. When she and Corina came into the
living room to go out for the seventh night in a row, Christopher told Tiffany he was tired
of being home alone at night and she was not “contributing to being a parent.” Tiffany
and Corina then tried to take “my son.” While holding a cigarette in his hand, he got into
a dispute with Tiffany. As he tried to grab J., “they pushed his [] head and it touched my
cigarette.” Tiffany and Corina took J. and left in Christopher’s car. When Christopher



                                             3.
ran out after them, “there was a guy there to kick my ass[,]” who was Corina’s friend.
Instead of doing that, the man gave him a ride to Katherine’s home.
       Christopher stated he was advised in the VFM case that he should seek custody or
a divorce if he began to notice Tiffany behaving like she did when the prior case began.
After the incident, Christopher went to work for 11 hours. When he got “home,” he
planned with Katherine what to do next, and they decided he would file for custody.
Christopher had not spoken with Tiffany since the incident, but he had been receiving
text messages from Corina, who he believed instigated the situation. According to
Christopher, since the VFM case closed, things had been fine until Corina “moved in
with her stuff.” Christopher did not know how long Tiffany had been using drugs. When
asked if he knew what she looked like when she was using, Christopher responded that he
didn’t “even know anymore.” He had not caught Tiffany using drugs, but two weeks
before he found paraphernalia in Tiffany’s purse, which he threw away, as he did not
want “that stuff around my son.” Tiffany had recently been behaving like “when she was
a heavy user.”
       Christopher denied that he and Tiffany engaged in a physical fight. When asked
about prior incidents of domestic violence, Christopher stated there was one incident
during the VFM case where Tiffany was the aggressor and she had to participate in
“anger management.” When asked if he participated in any services, Christopher
responded, “I’m perfect, I was doing nothing wrong[,]” and the military gave him
extensive training. Christopher confirmed that he and Tiffany had been living together,
but he said that Tiffany was out when he was home. Christopher was in the army
reserves, worked full time in construction, and went to school on the GI bill studying for
a bachelor’s degree in psychology. When asked about discipline, Christopher stated “[i]t
depends” and that he would threaten J. with a belt, but knew he could not hit him.
Instead, he would put J. in the room or a corner for five minutes. Christopher had been
staying at Katherine’s home since he did not have a key to his car or apartment.

                                            4.
       Lucy called the social worker and explained that on the night of the incident, she
received a call from Corina, who was helping care for J.; Corina said “they got into a
really ugly fight,” and Corina was bringing J. to Lucy. Corina told Lucy that Christopher
was throwing things in the apartment and “went crazy.” Christopher and Tiffany were
arguing about Tiffany going with Corina to a casino; he did not want Tiffany to leave.
Christopher went crazy, got a cigarette, and burned J. on the back of the neck. After
Corina brought J. over, she left to look for Tiffany. The paramedics came after Lucy
called 911, but they could not take J. without a parent’s consent.
       On April 21, a team decision meeting was held at the Department on J.’s behalf,
which Christopher, Katherine, Lucy, Tiffany, and a maternal aunt attended, along with
the social workers. Christopher admitted there was a history of domestic violence, which
originally was against him, but ultimately he was not charged; instead, Tiffany was
arrested. Tiffany claimed Christopher hit her on the head with a jewelry box, but she was
too afraid to tell police because she was afraid of Christopher. Christopher denied hitting
Tiffany, stating “No injury no evidence.” Both Lucy and Katherine pointed out Tiffany’s
drug use and Christopher’s enabling.
       Lucy reported that J.’s parents would bring J. to her home and she would watch
him for hours to days out of the week. Tiffany shared she had been concerned about J.
for the last six months and that she did not trust Christopher around him. Tiffany
reported that she and Christopher were not together anymore. Christopher was concerned
because Tiffany was a drug addict and did not want to be a family. Christopher said he
told Tiffany he would divorce her and take their son, and “then the squabble happened
and they took J[].” Christopher stated they did not have problems until Tiffany brought
Corina around. Christopher admitted there was a domestic violence incident during the
VFM case, but “we repaired after that.” Christopher wanted to be a family.
       The social workers were concerned that the family did not take any action to
protect J. prior to the Department’s involvement, despite having been provided services

                                             5.
in the VFM case and being fully aware of the Department’s expectations. A social
worker recommended filing a petition on J.’s behalf and offering court-ordered services
to the parents as neither parent was able to make a safe plan of care for J., and they were
making accusations and allegations against each other. It was determined that VFM
services were inappropriate at that time due to the family’s prior participation in such
services. During the VFM case, services were extended for Tiffany because she
struggled with them. While Christopher did not receive services directly, he was part of
the household and safety net for the family during the course of that case.
       The Department filed a dependency petition alleging that J. came within the
provisions of section 300, subdivision (b), based on: (1) Tiffany’s substance abuse
problems, as evidenced by her being under the influence on April 19 and her admission
that she snorted two lines of methamphetamine; (2) Christopher’s failure to protect J.
from Tiffany’s substance abuse, as he either knew, or reasonably should have known,
Tiffany was abusing controlled substances, since they lived together and Christopher
admitted she was behaving like she was using drugs, yet he failed to take appropriate
action to protect J.; and (3) domestic violence between mother and father based on the
April 19 incident. The Department considered Christopher to be J.’s presumed father.
While no father was listed on J.’s birth certificate, Christopher held himself out to be J.’s
father, had taken J. into his home, and had provided for J.’s care and support.
       At the April 22 detention hearing, the juvenile court ordered that J. be removed
from his parents’ home and detained. The juvenile court appointed attorneys for each
parent, and ordered the Department to provide services to the parents, which included
parenting, and mental health and domestic violence assessments, as well as a substance
abuse evaluation and random drug testing for Tiffany.
       In a report prepared for the jurisdictional hearing, the Department reported that J.
was still in foster care pending the location of a suitable relative or mentor home.
Applications for placement from Lucy and the maternal aunt were being evaluated, and

                                              6.
while Katherine had expressed an interest in placement, her application was not
submitted to the home approval unit because Christopher was residing in her home.
       The Department’s service coordinator met with Tiffany on April 22 to review her
individualized service plan letter, which listed the various services the Department
offered. Although Tiffany initially declined to participate in parenting, substance abuse
and domestic violence evaluations, and random drug testing, she completed the substance
abuse evaluation and enrolled for random drug testing on April 27. The evaluator
recommended Tiffany participate in a dual-diagnosis intensive outpatient substance abuse
treatment program, as well as random drug testing, a domestic violence inventory (DVI),
and a mental health assessment. Tiffany was referred to an outpatient treatment program,
but she failed to attend the first intake appointment on May 4, or to drug test on that date;
her intake appointment was rescheduled to May 27.
       The coordinator also met with Christopher on April 22 and provided him with a
list of referrals; Christopher indicated his willingness to participate in all of the offered
services. He was on the waiting list for the parenting program, and was scheduled to
complete a DVI on May 14.
       Tiffany was scheduled for a supervised visit with J. on April 27, but the visit was
cancelled because Tiffany was under the influence of alcohol and controlled substances.
Christopher had supervised visits with J. on April 24 and 27. The visits went well, with
Christopher and J. talking, joking and playing with one another.
       At the May 13 jurisdictional hearing, the parents executed waivers of rights and
agreed to submit based on the social worker’s reports and other information in the file.
Christopher’s attorney informed the juvenile court that Katherine still was interested in
placement of J. and Christopher had moved out in the hope J. would be placed there,
although he was still receiving his mail at Katherine’s home. Tiffany’s attorney asked
the Department to reassess Tiffany’s treatment program; while she was referred to an



                                               7.
outpatient program, she was very interested in a residential one. The juvenile court found
the petition’s allegations true and set the dispositional hearing for July 1.
       In the report prepared for the July 1 dispositional hearing, the social worker
reported that J. remained in foster care. The Department recommended that J. be
adjudged a dependent and remain in out-of-home care, and that the juvenile court order
reunification services for Tiffany and Christopher. Both Lucy’s and the maternal aunt’s
applications for placement were pending approval, and Katherine’s application was
approved as of June 15. Given the approval of three relatives, the social worker had
scheduled a meeting for July 6 to determine with the family which relative could best
meet J.’s needs.
       Shortly after J.’s removal, his parents were given an eviction notice due to
apparent heavy traffic in and out of their apartment at all hours of the night. Moreover,
several complaints were received of possible unlawful activity taking place at the
apartment, as well as additional people living there who were not listed on the parents’
lease or Section 8 voucher. According to the social worker, as a result, Christopher was
living at Katherine’s home, but he was willing to relocate to a friend’s residence should
the Department decide to place J. with Katherine. Although Christopher had filed for a
restraining order against Tiffany, he failed to appear at the May 7 hearing. He withdrew
his petition for divorce, as he and Tiffany decided to remain an intact couple as long as it
was in J.’s best interest.
       Both parents expressed a willingness to engage in services. Tiffany acknowledged
she needed help with her use of controlled substances. The Department referred Tiffany
to a residential substance abuse treatment program and she was participating in treatment.
Since Tiffany was now willing to participate in a parenting program and the DVI, the
Department was referring her to a parenting program and an appointment for the DVI
was pending. Christopher was on a waiting list for the Department’s parenting program
and completed his DVI on May 14, but the Department had not received the report. The

                                              8.
Department resubmitted the request for referral for a mental health assessment for both
parents, as the initial referral had not been processed.
       The parents had separate twice-weekly supervised visits with J., with Tiffany
visiting on Mondays and Thursdays, and Christopher on Mondays and Wednesdays. The
parents were consistently attending the visits and their time with J. appeared to be going
well. On one occasion, Christopher was seen giving Tiffany and “her buddy” a ride from
the visitation center to her treatment program. The social worker informed him of the
rules Tiffany had to follow while in residential substance abuse treatment and advised
him not to transport her again. The social worker also told Christopher not to show up at
the visitation center on Thursdays, when he did not have a scheduled visit, just to see
Tiffany.
       The Department believed there was a substantial danger to J.’s welfare if he were
returned home, and there were no reasonable means to protect J.’s health without
removing him from his parents’ physical custody. In support, the Department cited
Tiffany’s substance abuse problem; Christopher’s failure to take appropriate action to
protect J. from Tiffany’s substance abuse even though he recognized she was behaving as
if she were using controlled substances, as well as his failure to follow through with any
of the legal actions he had initiated; and J.’s exposure to domestic violence. The
Department was concerned that these things would place J. at substantial risk of serious
physical harm or neglect if he were returned to his parents.
       Christopher requested a contested hearing on the issue of whether he could receive
family maintenance services while living with Katherine. Accordingly, the dispositional
hearing was continued from July 1, and ultimately held on August 21. At the August 21
hearing, the Department submitted on its report. Christopher testified that he was
requesting that J. be placed in his care under a plan of family maintenance. About two
weeks before the hearing, J. was placed with Katherine. Christopher’s plan, should J. be
placed in his care, was for the two of them to reside at Katherine’s home under her

                                              9.
supervision, with J. going to the day care he was currently attending. Katherine was
agreeable to that plan.
       Christopher began the parenting class on August 5, and had completed three out of
14 classes. He completed the DVI on May 14, but had not heard about the results. He
was told the referral for the mental health evaluation had been submitted, but he had not
heard anything further. Christopher was willing to obey all court orders if J. were placed
with him, including the court’s visitation orders, and said he would be strong enough to
prevent Tiffany from having unauthorized contact with J., which was “why we have that
specific child care plan in effect[,]” which was for J. to attend daycare across the street
from Katherine’s work, so she could take him and pick him up.
       This was the fourth year Christopher and Tiffany had been married; their
anniversary was on January 22. Christopher had considered filing for divorce because
the sheriff’s office told him he had to do that to get custody of J. “before this whole
matter.” He was interested in getting custody of J. at that time because he was worried
about him and the things Tiffany had done with her girlfriend, including being under the
influence.
       Christopher did not intend to move forward with the divorce. He thought it would
benefit J. for he and Tiffany to be together, as Tiffany was receiving treatment. If
Tiffany was not able to establish or maintain her sobriety, they had “multiple different
action plans[,]” including: (1) have Lucy and Katherine file for guardianship so J. would
have a safe place to stay; (2) have Tiffany remove herself from the situation until she
could maintain her sobriety; and (3) keep J. in daycare so he would be out of that unsafe
environment. Although at one time Christopher had a restraining order against Tiffany,
he did not think he needed one now because Tiffany was “under care,” they were trying
to be an intact couple and “make it work” for their son, and they were putting their son
first. Christopher recalled the VFM case. While “they” talked about offering him
services, Christopher claimed he “did not really need any” at that time.

                                             10.
       In December 2013, Tiffany had been arrested for attacking Christopher. When she
attacked him, he “detained her in the room” and sent her friend, with whom she was
arguing, home. Christopher claimed he only got a couple of scratches because “he got in
the middle of it.” Other than that incident, there had not been “any real serious physical
altercations” between them. That incident was the worst things had gotten. Christopher
gave Tiffany a ride to her treatment program because he felt badly since he had made her
miss a “concurrent planning class.” He waited outside the visitation center for her
because he wanted to give her the information so she could be prepared for the upcoming
court hearing. He claimed this was the only time he waited outside the visitation center
for Tiffany; he did not do it again after the social worker told him not to do so. He was
not aware that this was not permissible, although he had his suspicions.
       Social worker supervisor Donecia Wright testified that another social worker
provided Christopher with a parenting packet and advised him to participate in a
parenting class, as well as to find alternative methods of discipline. To her knowledge,
Christopher had not done these things.
       County counsel argued it was not safe to place J. with Christopher due to incidents
of domestic violence in April 2015 and December 2013, the foot traffic in the parents’
apartment, and father having waited outside the visitation center. J.’s counsel agreed
with the Department’s recommendation for family reunification, especially since there
had not been any progress in domestic violence services. Christopher’s attorney argued
there was no danger of domestic violence between the parents because the parents were
not living together. While Christopher acknowledged the April incident was serious, he
believed he had come up with a plan that would allow J. to safely return to him while he
completed his services. Christopher’s attorney asserted that having the parents live apart,
and J. placed in Christopher’s care in Katherine’s home, were reasonable means to
protect J.’s physical health without removing him from Christopher’s physical custody.



                                            11.
       The juvenile court found the Department made reasonable efforts to prevent
removal and that J. was a person described under section 300, subdivision (b), and made
him a dependent. The juvenile court further found, by clear and convincing evidence,
that J. could not be safely left in his parents’ physical custody. The juvenile court agreed
with the arguments of County counsel and J.’s attorney, explaining that Christopher had
yet to address the issue of domestic violence – the evidence was clear that there had been
two incidents of domestic violence, but there was no evidence that either parent had
addressed those issues. Accordingly, the juvenile court removed J. from his parents’
custody and placed him with Katherine.
       The juvenile court ordered supervised visits between J. and Christopher, and
unsupervised reasonable visits between J. and Tiffany while she was in the inpatient
program. When Tiffany was released to a sober living program, she would receive
reasonable supervised visitation. The juvenile court gave the Department discretion to
move to unsupervised, up to extended, visits with both parents. The juvenile court
ordered reunification services for both parents, consisting of parenting, and domestic
violence and mental health evaluations, and any recommended treatment, for both
parents. Tiffany was ordered to complete substance abuse evaluation, and recommended
treatment, and participate in random drug testing.
                                      DISCUSSION
       The Removal Order
       Christopher contends the juvenile court erred in ordering J. removed from his
custody because he demonstrated he was committed to providing J. a safe home and there
was an alternative to removal. Specifically, he argues that this is not an extreme case of
abuse or neglect that justifies removal as the only reasonable means to protect J., and
because he was cooperative with the Department and willing to participate in services,
the record does not establish a substantial danger to J.’s physical health and emotional
well-being should he be permitted to be placed with Christopher and Katherine.

                                            12.
       “At the dispositional hearing, . . . there is a statutory presumption that the child
will be returned to parental custody.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) In
order to remove a child from parental custody, the juvenile court must find by clear and
convincing evidence that removal is the only way to protect the physical or emotional
well-being of the child. (§ 361, subd. (c)(1).) The juvenile court must also determine if
reasonable efforts were made to prevent or eliminate the need for the child's removal.
(§ 361, subd. (d).)
       Section 361, subdivision (c), the governing statute, provides in relevant part:
“A dependent child shall not be taken from the physical custody of his or her parents . . .
with whom the child resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence . . . :[¶] (1) [t]here is or would be a substantial
danger to the physical health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no reasonable means by which
the minor’s physical health can be protected without removing the minor from the
minor’s parent’s . . . physical custody.”
       In determining whether to order a child removed from parental custody, the
juvenile court only has to have some reason to believe that circumstances which place the
child at a substantial risk of harm would continue in the future. (In re Rocco M. (1991)
1 Cal.App.4th 814, 824.) Thus, the purpose of the removal statute is to avert harm to the
child. (In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
       “In reviewing the sufficiency of the evidence on appeal, we look to the entire
record to determine whether there is substantial evidence to support the findings of the
juvenile court. We do not pass judgment on the credibility of witnesses, attempt to
resolve conflicts in the evidence, or determine where the weight of the evidence lies.
Rather, we draw all reasonable inferences in support of the findings, view the record in
the light most favorable to the juvenile court’s order, and affirm the order even if there is
other evidence that would support a contrary finding. [Citation.] When the [juvenile]

                                             13.
court makes findings by the elevated standard of clear and convincing evidence, the
substantial evidence test remains the standard of review on appeal. [Citation.] The
appellant has the burden of showing that there is no evidence of a sufficiently substantial
nature to support the order.” (In re Cole C. (2009) 174 Cal.App.4th 900, 915–916.) In
our view, Christopher failed to meet his burden.
       Substantial evidence supports the juvenile court’s finding that there would be a
substantial danger to J.’s physical health, safety, protection, or physical or emotional
well-being if he were returned to Christopher’s custody, as Christopher had yet to address
the reasons that led to J.’s dependency, namely his inability to protect J. from Tiffany’s
substance abuse and his involvement in domestic violence. This was not the first time
these issues had come to the Department’s attention. In the VFM case, Christopher did
not take advantage of services that were offered to him, asserting that he was “perfect”
and was “doing nothing wrong[,]” thereby demonstrating that he was less than willing to
protect J. and did not recognize his part in the problems that led to the VFM case.
       Christopher also demonstrated a propensity for violence and, in the most recent
incident, showed a lack of regard for J.’s well-being by trying to take him from Tiffany in
the midst of an argument while holding a cigarette. In the process, he injured J. While
the injury was not severe, it could have been worse if, for example, the cigarette hit J. in
the eye.3 This incident shows that Christopher loses control and perspective with respect
to J., all of which creates a risk of harm. Without treatment, it is not safe for J. to remain
with him, even under Katherine’s supervision.


       3Citing In re James T. (1987) 190 Cal.App.3d 58, Christopher argues that this was
not such an extreme case of abuse or neglect that removing J. from his custody was the
only reasonable means to protect him. This case, however, is distinguishable, as there,
the appellate court held alternatives to removal should have been considered where the
mother’s poverty presented her from providing the basic necessities for her 16-year-old
son. (Id. at pp. 62, 65.) The case did not involve a domestic violence incident which
harmed a three-year-old child.


                                             14.
       Christopher asserts that his cooperation with the Department, as evidenced by his
willingness to receive services and to separate himself from Tiffany, shows that there is
no risk of harm. While at the time of the dispositional hearing Christopher had done
everything that was asked of him, he had just begun the parenting program and had yet to
address the issue of domestic violence. And although Christopher claims that he
separated from Tiffany, their separation was caused by the loss of their apartment and
Tiffany’s entry into residential substance abuse treatment. As Christopher testified, he
and Tiffany were an intact couple who wanted to remain a family. Given their continued
relationship, the juvenile court reasonably could find that Christopher needed to address
his part in the issues that led to dependency before J. could be returned to him.
       We further conclude substantial evidence supports a finding that there was no
reasonable alternative to removal. Family maintenance services were not an option
because Christopher and Tiffany had already received such services, yet failed to prevent
the problems that led to this dependency. Until Christopher establishes that he can
benefit from the provision of additional services, there is ample evidence that J.’s safety
and well-being in the home would be in serious jeopardy were he returned to
Christopher’s custody.
       We conclude substantial evidence supports the juvenile court’s order removing J.
from Christopher’s custody.
       Presumed Father Status
       In dependency proceedings, a man may be a de facto father, an alleged father, a
natural father, or a presumed father. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801
(Jerry P.).) Of all these categories, only a presumed father is entitled to reunification
services and custody of his child. (Ibid.)
       Here, the Department considered Christopher to be J.’s presumed father – it
alleged he was a presumed father in the petition and explained in its reports that while no
father was listed on J.’s birth certificate, Christopher held himself out to be J.’s father,

                                              15.
had taken J. into his home, and had provided for J.’s care and support. (See Jerry P.,
supra, 95 Cal.App.4th at p. 802 [a man can establish presumed father status by receiving
the child into his home and openly holding the child out as his natural child]; Fam. Code,
§ 7611, subd. (d).) The juvenile court treated Christopher as J.’s presumed father by
ordering reunification services for him. Nevertheless, Christopher contends the juvenile
court erred because none of the court’s minute orders recognize him as J.’s presumed
father. He asks us to correct the juvenile court’s error and confirm he is J.’s presumed
father.
          There is nothing in the record to show that Christopher raised this issue before the
juvenile court, or that he asked the juvenile court to make an express finding that he is
J.’s presumed father. “As a general rule, a party is precluded from urging on appeal any
point not raised in the trial court.” (In re Riva M. (1991) 235 Cal.App.3d 403, 411–412
(Riva M.); In re Elijah V. (2005) 127 Cal.App.4th 576, 582 [“A parent’s failure to raise
an issue in the juvenile court prevents him or her from presenting the issue to the
appellate court.”].) “[N]onjurisdictional issues must be the subject of objection or
appropriate motions in the juvenile court; otherwise those arguments have been waived
and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43
Cal.App.4th 551, 558.) “Any other rule would ‘ “ ‘permit a party to play fast and loose
with the administration of justice by deliberately standing by without making an
objection of which he is aware and thereby permitting the proceedings to go to a
conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’ ” ’ ”
(Riva M., at p. 412.)
          “[A]pplication of the forfeiture rule is not automatic. [Citations.] But the
appellate court’s discretion to excuse forfeiture should be exercised rarely and only in
cases presenting an important legal issue. [Citations.] Although an appellate court’s
discretion to consider forfeited claims extends to dependency cases [citations], the
discretion must be exercised with special care in such matters.” (In re S.B. (2004)

                                               16.
32 Cal.4th 1287, 1293, superseded in part by statute on other grounds as discussed in
In re S.J. (2008) 167 Cal.App.4th 953, 962.)
       Here, by failing to request that the juvenile court expressly find him to be the
presumed father, Christopher has forfeited his appellate arguments regarding the court’s
purported failure to do so. Christopher, however, argues we should not apply forfeiture
here because “it is not necessary for a father to have specifically requested presumed
father status where his actions and the requests he did make, if granted, would necessarily
have resulted in him being found a presumed father[,]” citing In re Baby Boy V. (2006)
140 Cal.App.4th 1108, 1116 (Baby Boy V.). He asserts the record shows he sufficiently
raised the issue since he asked for placement of J. and for family maintenance services,
and the Department recognized him as J.’s presumed father.
       Christopher’s reliance on Baby Boy V. is misplaced. There, eight months after a
baby born to a drug addicted mother and an “ ‘identity unknown’ ” father became a
dependent and was placed into foster care, the “alleged” father learned of the baby’s
existence, went to see a social worker, appeared in court, asked for a paternity test, and
stated his desire to support and care for the child. (Baby Boy V., supra, 140 Cal.App.4th
1108, 1110.) The juvenile court denied the request for a paternity test and terminated
parental rights as to the “ ‘identity unknown’ ” father as well as the man who appeared in
court. (Ibid.)
       In reversing the father’s denial of the request for a paternity test and the
termination of parental rights, the Court of Appeal rejected the social service agency’s
contention that he waived his right to request presumed father status because he did not
expressly request it below. (Baby Boy V., supra, 140 Cal.App.4th at p. 1116.) The
appellate court explained that the father had done everything he could do, including:
(1) going to the agency’s office as soon as he learned of the child’s birth and being told to
appear at the next scheduled court hearing rather than the agency arranging for an
immediate court appearance; (2) requesting a paternity test at that hearing, only to be told

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by the court that confirmation of his status would be irrelevant because reunification
services would not be granted and his parental rights would be terminated in any event;
and (3) appearing at the next hearing and telling the court that he wanted to provide for
and have a relationship with the child, but having his parental rights nevertheless
terminated. (Ibid.) While the appellate court recognized that father did not expressly
request presumed father status, it determined that a formal request would have been
futile, and therefore his omission could not be treated as a waiver of his right to challenge
the order denying his request for reunification services. (Ibid.)
       Here, there is nothing to suggest that it would have been futile for Christopher to
ask the juvenile court to make an express finding of presumed father status on the record.
The Department considered him to be the presumed father and the juvenile court, rather
than denying Christopher the rights of a presumed father, granted those rights to him.
Accordingly, we conclude that Christopher has forfeited his appellate argument regarding
his presumed father status.
                                      DISPOSITION
       We affirm the juvenile court’s dispositional order removing J. from Christopher’s
custody.




                                                                    _____________________
                                                                                GOMES, J.
WE CONCUR:


 _____________________
LEVY, Acting P.J.


 _____________________
DETJEN, J.


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