Filed 7/31/14 In re Eli B. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re ELI B., a Person Coming Under the Juvenile Court Law. B250429

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Appellant,

v.
DAVID B.,
Defendant and Appellant. (Los Angeles County Super. Ct. No. CK83432)

APPEAL from orders of the Superior Court of Los Angeles County, Debra Losnick, Juvenile Co urt Referee. Affirmed. John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Appellant. Christopher R. Booth, un der appointment by the Court of Appeal, for Defendant and Appellant.

_________________________2 INTRODUCTION David B. appeals from the disposition order of the juvenile court that removed his infant son Eli B. from his custody (Welf. & Inst. Code, § 361, subd. (c)). 1 The Department of Children and Family Services (the Department) appeals challenging the court’s order denying the Depa rtment permission to file a first amended petition that named father (§ 300). We affirm the orders.
FACTUAL AND PROCEDUR AL BACKGROUND
1. The detention report and last minute info rmation for the court dated March 13,
2013 Eli was born in late February 2013, with permanent pulmonary hypertension. The hospital placed a hold on the baby because of the failure of his mother, Nora B., to reunify with her older two chil dren and possibly because of the inability of both of Eli’s parents to properly or safely care for the baby. Father had no permanent address and ne ver knew where he would sleep from one night to the next. To care for the baby, father planned to move in with his mother in her one bedroom apartment in Calabasas. The paternal grandmother welcomed Eli, but
without mother or father. The Department filed a petiti on alleging that mother has a history of being beaten by the father of Eli’s siblings in the presence of the children, and of allowing that father to have access to the older children, and that mo ther failed to reunify with Eli’s siblings. (§ 300, subd. (j).) The petition contains no allegations concerning Eli’s father. At the detention hearing, the juvenile cour t declared David B. to be Eli’s presumed
father. The court then detained Eli and rel eased him to father “ on condition that father resides in the home of paternal grandmother .” (Italics added.)
2. The detention report dated April 3, 2013 The Department received an emergency referral alleging emotional and physical abuse of Eli by mother and general neglect of Eli by father. The detention report

1 All further statutory references ar e to the Welfare and Institutions Code.3 contained the following: A Glendale Police officer reported that father had called the police on March 28, 2013 requ esting that law enforcement pick him and Eli up because he had been drinking a nd did not feel safe having the child with him. Arriving at a designated parking lot at midnight, the officer sm elled alcohol on fathe r’s breath. Father explained that he and mother had argued while riding the bus from Hollywood. Father
had asked mother to hand the child to him an d suggested he was recording mother on his cell phone. Mother reportedly took father’s phone and slammed it on the ground.
Mother refused to return Eli to father because father had been drinking. Father had stayed in a “seedy motel with the child the night before.” The police arrested mother based on outstanding warrants for theft and a m unicipal code violation and detained Eli. Father gave a similar report of the events. Meanwhile, the paternal grandmother had left for vacation on March 27, 2013, and
did not know where father was. Asked whethe r father was living with her as ordered by the juvenile court, the paternal grandmother replied that father wo rked in Hollywood and stayed with family friends an d others to avoid the long commute west with the baby. The maternal grandmother confirmed that father was not living with the paternal grandmother as father worked in Hollywood. She believe d father was an alcoholic because he is “always drunk on the streets with the child.” Sh e reported that father does not appear well, and heard from mother that fath er uses “rock” and marijuana. Father has dropped the child off w ith the maternal grandmother “num erous times.” Days later, the maternal grandmother called the Department to report that the ch ild was staying with
father’s friend.
Father told the so cial worker he did not know he had to stay in his mother’s house every night . He leaves the baby with his sister when he has to work , and sometimes Eli stayed there overnight. Father also admitted staying at a motel with the baby the prior week. He has a medical mariju ana card but denied using other illicit drugs. He admitted to having been arrested for do mestic violence against mother.
As father was intoxicated while Eli was in his care, failed to comply with the court’s order to reside with his mother, and admitted to current mari juana use, the social4 worker categorized the baby as being at “ver y high” risk of future neglect, caretaker absence, and incapacity. The Department re commended that the child be placed with the paternal aunt.
3. The April 3, 2013 ex parte application, the last minute information for the court dated April 14, 2013, and the requ est to file a first amended petition On April 3, 2013, three w eeks before the scheduled adjudication hearing, the Department filed a motion to modify (§ 385) the existing order releasing Eli to father. The Department explained that father had violated that cour t order because he and Eli had been staying with relatives and friends and not with the paternal grandmother who had
been on vacation since March 27 , 2013. The juvenile cour t granted the Department’s section 385 motion, re-detained Eli, and plac ed him in the custody of the Department. The Department placed Eli in a foster home. The Department indicated it planned to file an amende d petition to name father. On April 10, 2013, th e juvenile court granted the Department permission to file the amended petition “FORTHWITH, PRIOR TO 4/24/13.” (Capita lization in original.)
In its last minute information for the co urt, the Department listed its safety concerns about father: he was increasingl y argumentative at the hospital and “out of control.” Security was called but father left the hospital instead. Father has no stability in his life, and no stable reside nce, and has not demonstrated an ability to care for Eli. Eli attends a high-risk medical clinic and father had not demonstrated he would be stable enough to arrange for the baby’s attendance, let alone provide for the baby’s general needs. Father argues with mo ther. The paternal grandmothe r reports that father is her
eldest child and has never been stable. He was frequently in trouble in school, was arrested as a youth for drug use, and has yet to care for himself.
4. The jurisdiction report and first am ended petition dated April 24, 2013 The Department’s jurisdiction report repeated all of the information in the April 3, 2013 detention report, and contained account s of interviews with father and mother.5 On April 24, 2013, th e Department attempted to file its first ame nded petition to add allegations concerning father. The amended petition alleged domestic violence between mother and father (§ 300, subds. (a) & (b)), father’s alcohol and marijuana use in the child’s presence, his failure to provide the child with stable housing, and failure to comply with the court order to reside at the paternal gra ndmother’s house (§ 300, subd. (b)). The juvenile court refused to allow th e filing of the amended petition because it was tardy. The court did not believe the social worker was “misinform[ed]” about the due date. However, the court stated it had read the reports and found that all the information provided in the first amended petition was alre ady contained in thos e reports. The court
also reviewed the section 385 motion attach ed to the April 3rd report, the detention reports of April 3 and March 13, 2013, an d the addendum report of March 13, 2013. Proceeding on the original petition, the ju venile court sustained it under section 300, subdivision (j) based on mother’s conduc t only. The court requested the Department obtain a copy of the Glendale police report for the disposition hearing.
5. The last minute information and di sposition report dated June 6, 2013 The Department complied with the court’ s request to assess Eli’s placement and provide a copy of the Glendale police report. On June 6, 2013, the parties convened for the contested disposition hearing. The juvenile court stated it had read and considered the jurisdiction and disposition report and a ttachments dated April 24, the ex parte application, order, detention report of April 3, and the last minute information of June 6, 2013. There was no objection to these documents. Father’s a ttorney declined the court’s invitation to present witnesse s or documents. The Departme nt requested that the court
order reunification services for father. Reco gnizing father appeared to be nonoffending because the first amended petition was not filed, the Department argue d that the court had broad discretion to make orders that are appr opriate to address the risks, and recited the
evidence in the record about father’s conduct. Through his attorney, father requested the
child be returned to his custody because he was nonoffend ing and disputed specific facts the Department raised concerning father.6 At the close of the hearing, the court fo und by clear and conv incing evidence that Eli should be removed from his parents’ custody and control and placed with the Department. The court ordered reunification services for fathe r. Father’s appeal and the Department’s appeal followed.
CONTENTION Father contends that the juvenile court unconstitutionally removed Eli from his custody. The Department contends the court erred in refusing to allow the filing of the first amended petition.
DISCUSSION
I. Father’s Appeal Father believes his due process rights were violated by the juvenile court’s order removing Eli from his custody (§ 361, subd. (c)) at the Ju ne 6, 2013 disp osition hearing because he was a nonoffending, presumed fath er who had not received the safeguards of a jurisdiction hearing. Father does not ch allenge the sufficiency of the evidence to support the juvenile court’s removal order. Instead, he argues this case “present[s] a purely legal question whether a juvenile court may rem ove custody at disposition from a presumed and custodial father ” when that parent is non offending. (Italics added.) “The fundamental right to the care and cu stody of one’s child is protected by [the]
Constitution and st atute[s].” ( In re Henry V . (2004) 119 Cal.App.4th 522, 525, citing § 361, subd. (c).) “ ‘ Santosky [ v. Kramer (1982) 455 U.S. 745] establishes minimal due process requirements in the context of stat e dependency proceedings. “Before a State may sever completely and irrevocably the righ ts of parents in their natural child, due process requires that the State support its a llegations by at least clear and convincing evidence.” ’ ( Id . at pp. 747-748.)” ( In re P.A . (2007) 155 Cal.Ap p.4th 1197, 1211.) “California’s dependency system comports with Santosky ’s requirements . . . .” ( In re Gladys L. (2006) 141 Cal.App.4th 8 45, 848.) For example, to protect the parents’ constitutional interest in assuming physical cu stody of their children, the juvenile court may not remove children from the parents “in the absence of clear and convincing evidence that the parent’s choices will be ‘d etrimental to the safety, protection, or7 physical or emotional well-being of the child.’ ” ( In re Isayah C . (2004) 118 Cal.App.4th 684, 697.) This standard of proof applies to both offending and nonoffending parents. A child may be constitutionally removed from a nonoffending parent -- a parent who has not been the subject of any allegations in the se ction 300 petition -- in order to protect the child’s physical safety and em otional well-being, provided the juvenile court makes the predicate finding of detriment by clear and convincing evidence. (§§ 361, subd. (c) & 361.2, subd. (a); 2 In re P.A ., supra , 155 Cal.App.4th at p. 1212; see In re Isayah C
., supra , 118 Cal.App.4th at p. 697; accord, In re Z.K ., supra , 201 Cal.App.4th at p. 70.) Once it declares a child a dependent, the ju venile court must follow section 361, subdivision (c) to remove th at child from offending and nonoffending parents. That statute reads: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evid ence of any of the following circumstances listed in paragraphs (1) to (5), inclusive . . . : [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the mi nor were returned home, and there are no reasonable means by which the minor’s phys ical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361, subd. (c) & (c)(1).) “The high standard of proof by which this finding must be made is an essential aspect of the presumptive, cons titutional right of parents to care for their children” ( In re Henry V ., supra , 119 Cal.App.4th at p. 529 .) “Due process requires the

2 Section 361.2 governs th e procedures the juvenile court must follow to place dependent children after removing them from a parent under section 361. ( In re Z.K

. (2011) 201 Cal.App.4th 51, 70.) Subdivision (a) 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 th e child was not residing at the time that the events or conditions arose that brought the child wi thin 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 pl acement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”8 findings underlying the initial removal orde r to be based on clear and convincing evidence. [Citations.]” ( Id . at p. 530.) Here, the juvenile court made the ne cessary finding by cl ear and convincing
evidence. Father does not challenge the factual basis for that finding. Instead, father contends that the dispositi onal order was “structural” error because he was denied the right to “defend against the new allegations, in cluding conferring with his lawyer, contacting witnesses, obtaining documents, preparing for examination and cross-examination . . . to address the specific allegations he faces.” Father is wrong. At the June 6, 2013 dispos ition hearing, the juvenile co urt stated it had read and considered the April 24, 2013 jurisdiction report, the April 3, 2013 ex parte application and detention report, and the June 6, 2013 la st minute information for the court with the Glendale Police Department report attached. Asked whether he had any objections, father through his appointed a ttorney, responded “No.” Fathe r’s attorney also declined
the court’s invitation to call witnesses or present evidence, a nd then rebutted the Department’s facts of detriment during argument. 3 Therefore, father was given ample opportunity to defend his positi on at the disposition hearing.
Father also contends that he was denied due process because “disposition hearings, unlike jurisdiction hearings, allow [the] whol esale admission of hearsay.” Actually, hearsay evidence is admissible at both the jurisdiction and disposition hearings (§ 355, subd. (b) [“A social study prepared by th e petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence up on which a finding of jurisdiction pursuant to Secti on 300 may be based . . .”]; In re Madison T . (2013) 213 Cal.App.4th 1506, 1509 [any ev idence including hearsay is admissible at disposition phase]). Father’s due process rights were protected at the disposition hearing, irrespective of the admissibility of hearsay, because the juvenile co urt could not remove

3 Father makes no claim that the Department ’s status review reports were not made available to him in a timely fashion, and so his reliance on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (failure to provide parent with st atus report at least 10 days before § 366.21 hearing is st ructural error) is unavailing.9 Eli without first finding detriment by clear an d convincing evidence if the child were to remain in father’s custody. ( In re Henry V ., supra , 119 Cal.App.4th at pp. 525 & 529; § 361, subd. (c).) There was no error.
II. The Department’s Appeal The Department contends that the juvenile court erred in denying it permission to file the first amended petition. As the Department acknowledges, the court was “frustrated” by the Department’s failure to comply with its specifi c order to file the amended petition “PRIOR TO” April 24, 2013. “The judge of the juvenile court shall control all pro ceedings during the hearings . . . .” (§ 350, subd. (a)(1), italics a dded.) The court here was understandably frustrated by the Department’s tardiness. Had the court allowed the late filing of the first amended petition, which was the first documen t to contain allegations naming father, father would have been justified in moving to continue the jurisdic tion hearing to enable him to prepare a response, further delaying th e disposition of the short dependency of an infant. (§ 361.5, subd. (a)(1 )(B) [six months of court-orde red services for children who are younger than three years old at initial removal].) Me anwhile, as the court observed, the Department already had all of the facts that formed the basis for the allegations in the amended petition and so there was no justification for dela ying the filing of the new petition for two weeks. The court specifically disbelieved the Department’s excuse that it
was misinformed. The Department emphasizes the juvenile co urt’s obligation to “maxim[ize] safety and protection for children” (§ 300.2), an d the goal of “exped itious and effective ascertainment of the jurisdictional facts and the ascertainment of a ll information relative to the present condition and future welfare of the person upon whose behalf the petition is brought.” (§ 350, subd. (a)(1).) While we ag ree wholeheartedly w ith the objective of these statutes, the juvenile court’s order fell s quarely within their am bit. When rejecting the first amended petition, the court noted that all of the facts underpinning the allegations against father were contained in the documents already in the record, namely the March 13 and April 3 detention reports, th e April 3 ex parte application, and the10 April 14 last minute information, and the April 24, jurisdiction report. There was no
error here.
DISPOSITION
The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.