Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK66891, D. Zeke Zeidler, Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Amir Pichavi for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Roberto S. appeals from an order denying his petition to be determined to be the presumed father of the minor Shannon H. and denying him reunification services. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Susana H. (Mother) was married to Jesse R. and two children were born in the marriage. Mother separated from Jesse and began cohabiting with Roberto S. After she became pregnant with Shannon H., Roberto took Mother to his home in Mexico. Shannon was born in Mexico. Roberto signed Mexican governmental documents as her father and he is named as her father on her Mexican birth certificate. Roberto is Shannon’s biological father. He cared for and supported Shannon until she was three months old. At that time, Mother returned to California to live with Jesse and took Shannon with her. Roberto remained in Mexico. At the time of the instant proceedings, Roberto lived in a three-bedroom home with his mother, was employed and appeared to be financially stable.
There have been no visits between Roberto and Shannon from the time she was three months old through the time of these proceedings, when she was seven years old. Roberto was undocumented and, for that reason, could not come from Mexico to visit Shannon. Shannon could not go to visit him, because she would not be able to return to the United States, in that she was born in Mexico and also undocumented. Mother was also born in Mexico and, likewise, was an illegal immigrant. Mother did not give Roberto her California address or telephone information. A few times since leaving Mexico, however, Mother telephoned Roberto and allowed Shannon to speak with him. Roberto’s last telephone contact with Shannon was in early 2006.
From the time Shannon was three months old and throughout the remainder of her seven years of life, Shannon lived with Jesse in his home with her two half-siblings and Mother. Jesse knew he was not Shannon’s biological father. Nevertheless he cared for, supported and provided for Shannon, acting as her father in all aspects of her life.
This appeal pertains solely to Shannon. All three children, however, are subjects of the underlying dependency case.
Mother had a long history of substance abuse, primarily with methamphetamine, and had not been able to complete a rehabilitation program and remain drug free for an extended period. She tested positive for methamphetamine just prior to the jurisdiction/disposition hearing. She had a prior history of gang involvement.
The juvenile court denied even temporary placement with Mother, raising a question as to whether Mother would be able to resume living with Jesse and the children if the children were returned to Jesse’s home.
Mother and Jesse had a history of domestic violence involving, but not limited to mutual striking and/or pushing, which occurred at times when Shannon and her half-siblings were present. Jesse was arrested for alleged domestic violence once in 2002, again in 2005, and during the dependency proceedings in 2006. He was convicted of domestic violence in Nevada in 2005 and completed a domestic violence program. Mother reported to the police that on January 3, 2007, Jesse punched her in the nose, struck her, and shoved her. At the time of the Department of Children and Family Services (DCFS) jurisdiction/disposition report dated March 7, 2007, misdemeanor charges for battery on Mother were pending against Jesse, and Mother and Jesse were living apart. Mother was living with the paternal great grandmother. Jesse was living alone in a two-bedroom apartment. Mother and Jesse independently indicated that they wanted to reunite with each other and the children.
DCFS’s supplemental report dated June 12, 2007, stated that, in May, Mother had indicated she wanted the criminal case dropped.
Relatives reported seeing incidents in which Mother struck and pushed Jesse during arguments. Mother exposed her children to a violent altercation between herself and the paternal grandmother of Shannon’s half-siblings.
In November 2006, DCFS received an anonymous referral that Mother had physically attacked the paternal grandmother and Mother was using methamphetamine. DCFS investigated and tried to assist Mother and Jesse with services in order to avoid detention of the children. However, Mother dropped out of the substance abuse programs in which she had enrolled, and Jesse enrolled, and did not attend a domestic violence program. DCFS then decided to detain Shannon and her half-siblings.
DCFS took Shannon and her half-siblings into protective custody and, on February 8, 2007, filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b) (dependency petition), seeking to declare the children juvenile dependents. The petition alleged that Mother was a user of illicit drugs and had a history of substance abuse; that Mother and Jesse had a history of domestic violence; and that Mother had engaged in a violent altercation with the paternal grandmother, including throwing grandmother on the bed and choking her. There were no allegations concerning Roberto.
On February 8, 2007, the juvenile court conducted the detention hearing for the three children. Shannon, Mother, Jesse and their respective appointed counsels were present. Roberto was in Mexico, but his appointed counsel was present. Earlier, Roberto had contacted the court and expressed his interest in caring for Shannon and being represented in the proceedings.
Roberto’s appointed counsel informed the court that Roberto requested that he be declared Shannon’s presumed father pursuant to Family Code section 7611 and she be placed with him. Jesse also wished to be declared her presumed father. When the juvenile court judge pointed to Jesse and asked Shannon who he was, she replied, “Dad.”
After the hearing, the juvenile court issued a minute order stating that the court determined that Roberto was the biological father of Shannon and Jesse was the presumed father of Shannon. The juvenile court subsequently issued a judgment declaring Jesse to be Shannon’s presumed father.
On April 19, 2007, Roberto filed a petition under Welfare and Institutions Code section 388 (petition) requesting the court to set aside its previous order of presumed father status for Jesse and declare Roberto to be Shannon’s presumed father and thus entitled to family reunification services and placement of Shannon with him. On June 12, 2007, the juvenile court conducted a hearing on the petition. At the conclusion, the court stated that Roberto met some of the criteria to be a presumed father, but weighing factors applicable to Roberto against factors applicable to Jesse, the court affirmed that it found Roberto to be Shannon’s biological father and Jesse to be her presumed father. The court’s order stated: “The court reiterates its findings on 2-08-07 stating that Roberto S[.] is the biological father of Shannon. [¶] The court affirms its findings made on 2-08-07 stating that Jesse R[.] is the presumed father of Shannon due to the following: Jesse R[.] was married to the mother when the child was born [and] . . . held himself out as the father of Shannon even though he [knew] the child was not his biological child.” The court denied the petition on the ground that Shannon’s best interest “would not be promoted by [the] proposed change of order.”
Welfare and Institutions Code section 388 provides a mechanism for a parent to petition the juvenile court for a hearing to change, modify, or set aside any order of the court previously made upon the grounds of changed circumstances. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
At the June 12 hearing, after the juvenile court ruled on Roberto’s petition, it held the jurisdictional portion of the hearing. Mother and Jesse pleaded no contest to the allegations in the dependency petition. The juvenile court declared Shannon and her half-siblings to be dependent children pursuant to Welfare and Institutions Code section 300, subdivision (b). The court ordered, among other things, that Jesse complete a domestic violence or anger management program, and acknowledged Jesse’s representation that he already had almost completed the program.
DISCUSSION
1. Request for Dismissal as Moot
DCFS contends that this appeal must be dismissed as moot due to actions taken by the juvenile court after this appeal was filed. We disagree.
In support of its contention, DCFS proffered to us the juvenile court’s minute order of November 15, 2007, approving a permanent plan for Shannon and her half-siblings to return to the home of their presumed father, Jesse, and ordering implementation of the plan, with a review hearing set for April 2008. The court expressly deferred a decision on terminating jurisdiction as to each child to a later time. DCFS asserts that “[t]his new development has strongly undermined the basis for the appeal, and in fact has rendered it moot. The relief requested by appellant—to be provided reunification services so that the Juvenile Court can determine which father should be found to be the minor’s presumed father—is no longer pertinent and applicable as the minor has now been returned to her presumed father with whom she has been living since she was approximately six months old.”
DCFS filed a motion to take additional evidence pursuant to Code of Civil Procedure section 909 and California Rules of Court, rule 8.404(c). The motion was unopposed. We granted the motion.
In a dependency matter, mootness should be decided on a case-by-case basis. (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.) When a purported error infects the outcome of subsequent proceedings, the issue is not moot. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) If determination of an issue raised on appeal may likely affect the future rights of the parties, then subsequent orders issued based upon the challenged action should not be deemed to render the appeal moot. (See In re Michael D. (1996) 51 Cal.App.4th 1074, 1081, fn. 2.) The instant appeal could result in a change in the identification of Shannon’s presumed father, and therefore, a change in the future rights of Roberto and Jesse with respect to Shannon. The juvenile court has retained jurisdiction over the final disposition for Shannon. Under the circumstances presented, we conclude that this appeal is not moot and, therefore, we decline to dismiss it. (Dylan T., supra, at p. 769.)
2. Presumed Father Determination
Roberto contends that the juvenile court erred in denying him presumed father status and affirming its prior determination that Jesse was Shannon’s presumed father. For reasons we explain below, we disagree with Roberto’s contentions and affirm the juvenile court’s determination.
Family Code section 7611 sets forth the criteria for qualification for presumed father status. Three of the section 7611 criteria are relevant to the instant case: “(a) He and the child’s natural mother are or have been married to each other and the child is born during the marriage . . . . [¶] . . . [¶] (d) He receives the child into his home and openly holds out the child as his natural child,” or he complies with section 7500 et seq. requirements for making a valid voluntary declaration of paternity.
All further statutory references are to the Family Code unless otherwise identified.
Section 7611 provides: “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: [¶] (a) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [¶] (b) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [¶] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [¶] (c) After the child’s birth, he and the child’s natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [¶] (1) With his consent, he is named as the child’s father on the child’s birth certificate. [¶] (2) He is obligated to support the child under a written voluntary promise or by court order. [¶] (d) He receives the child into his home and openly holds out the child as his natural child. [¶] . . . [¶] (f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.
We apply the substantial evidence standard of review to the findings upon which the juvenile court determines satisfaction of a criterion for presumed father status. “If there is any substantial evidence to support the findings of the juvenile court, a reviewing court must uphold the [juvenile] court’s findings. All reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]” (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) The facts are undisputed that, as the juvenile court found, both Jesse and Roberto qualify under section 7611, subdivision (d). Hence, we conclude that these findings are supported by substantial evidence. (Jeannette S., supra, at p. 58.)
The juvenile court made a qualified finding that Roberto also meets another presumption criterion, in that he made a voluntary declaration of paternity in Mexico. In its reply brief on appeal, DCFS argues that the finding is in error. However, such a finding is not essential to the resolution of this appeal, and we decline to address the issue.
Roberto contends that he signed Shannon’s birth certificate which was registered under the laws of Mexico, and thereby, he made a voluntary declaration of paternity sufficient to qualify as a presumed father under sections 7571 and 7573. It is established that “a voluntary declaration of paternity that is in compliance with all the requirements of section 7570 et seq., and was signed and filed on or after January 1, 1997, entitles the father to presumed father status in dependency proceedings.” (In re Liam L. (2000) 84 Cal.App.4th 739, 747.) However, the voluntary declaration creates a presumption equivalent to, not superior to, a presumption that arises under any of the subdivisions of section 7611. (Liam L., supra, at p. 746.) Pursuant to section 7612, subdivision (b), it must be weighed against any presumption arising in favor of another man. In the instant case, whether or not Shannon’s birth certificate constitutes a valid voluntary declaration of paternity, it is undisputed that a presumption arises as to Roberto under section 7611, subdivision (d), in that he held himself out as Shannon’s father and received her into his home as his child.
Although more than one man may qualify under one or more of the section 7611 criteria, only one man can be declared the presumed father. (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1115; Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1223.) Section 7612, subdivision (b), provides a mechanism for determining which one of competing qualifying men is to be declared the presumed father: “If two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” This balancing test has been recognized as the proper decision making process, for example, where each one of two men meets a criterion in one subdivision of section 7611 (see Brian C., supra, at p. 1223) and where one of the presumptions is based on completion of statutory requirements for an effective voluntary declaration of paternity (In re Liam L., supra, 84 Cal.App.4th at pp. 742-743).
In weighing considerations under section 7612, subdivision (b), courts have given preference to preserving and protecting an existing father-child social and emotional relationship rather than a paternal biological relationship. (Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 51; Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116.) Consistent with the constitutionally valid objective of applicable paternity law, such a father-child relationship between a child and a man has been held to be more important to the child’s social and emotional strength, stability and overall well-being than a biological relationship of actual paternity. (Craig L., supra, at p. 51; Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435, 1443.)
In In re Jerry P. (2002) 95 Cal.App.4th 793, Division 7 of this court explained: “In dependency proceedings, . . . the purpose of section 7611 is . . . to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers—the rights to reunification services and custody of the child. . . . [¶] . . . ‘[I]t is possible for a man to achieve presumed father status, with its attendant rights and duties, without being the biological father.’ [Fn. omitted.]” (Id. at p. 804.) Roberto concedes that presumed father status is not driven by biological paternity, but by the “state’s interest in the welfare of the child and the integrity of the family.” (In re T. R. (2005) 132 Cal.App.4th 1202, 1209.)
We review a juvenile court’s action under section 7612, subdivision (b), to weigh competing presumptions of paternity, for abuse of discretion. (Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 864.) A juvenile court abuses its discretion when it exceeds the bounds of reason by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) If two or more inferences can reasonably be drawn from the facts, we must defer to the juvenile court’s decision. (Id. at p. 319.)
Roberto contends the juvenile court focused on the length of time Shannon had been with Jesse as compared with Roberto and failed to consider all the other relevant factors in reaching its presumed father decision. (In re Jesusa V. (2004) 32 Cal.4th 588, 608.) He asserts that the juvenile court failed to consider that (1) Mother, not Roberto, controlled the length of time Shannon was with him, and that when given the opportunity at the dependency proceedings, he promptly came forward and sought to discharge his responsibilities as Shannon’s father; (2) Roberto had shown he was fit, stable and financially able to provide Shannon with a safe home and a stable, secure childhood; (3) Jesse’s history of domestic violence indicated that the home he could provide would not be as safe and secure; (4) Jesse lacked financial stability to support Shannon as shown by evidence of Jesse and his family sleeping on a relative’s floor; and (5) Jesse had criminal charges pending against him arising from Mother’s complaint of recent domestic violence.
This contention appears to be a misstatement. The record indicates that on one occasion, after the children had been placed with the relatives, Jesse, Mother and the children slept on the floor. The record also indicates, however, that during the dependency proceedings, Jesse was living alone in a two-bedroom apartment.
Roberto’s reliance on the weight given to similar factors by the California Supreme Court in In re Jesusa V., supra, 32 Cal.4th 588 is unavailing. The facts in the instant case are clearly distinguishable, and as a result, the weight the related factors merit differs from that accorded to them in the Jesusa case. There, the Court affirmed the juvenile court’s determination that the mother’s husband was the statutorily presumed father, rather than the child’s biological father with whom the mother had been cohabiting prior to and after the child’s birth. Among the factors weighed were the length of time the child had spent with each man, the stability and fitness of each man to serve as the presumed father, and the biological father’s history of domestic violence against the mother. The Court concluded that the juvenile court properly weighed relevant factors in reaching its conclusions that, although the husband had spent considerably less time with the child than the biological father, the husband had spent sufficient time and provided sufficient shelter and support to the child to form a fatherly bond with her; he also appeared stable, secure and fit to be the child’s father; and the biological father’s extreme violence toward the child’s mother with the child present indicated he was not a fit father. (Jesusa V., supra, at pp. 606-607, 610.)
There are significant factual differences between Jesusa and the instant case. In Jesusa, during the time the child was living with her biological father, her mother took her almost every weekend to visit with the mother’s husband. The husband also provided shelter to the mother and the child during periods of conflict between the mother and the biological father. (In re Jesusa V., supra, 32 Cal.4th at p. 607.) As a result, the husband had established a fatherly bond with the child.
By contrast, Roberto had established no such bond with Shannon. He only lived with Shannon for the first three months of her seven years of life and had not otherwise been involved in her life. While Roberto may have desired to have such a bond with Shannon, the fact was that Shannon did not know Roberto. For almost seven years, she had lived with Jesse, considered him to be her “Dad,” and during the dependency proceedings, had expressed a desire to stay with him. Jesse formed a bond with her by assuming the responsibilities of a father toward her for almost seven years, supporting her, providing for her needs, and caring for her as his child, even though he knew he was not her biological father.
As to domestic violence, Jesse and Mother had a history of altercations involving pushing and/or striking each other. By the time of the hearing on Roberto’s petition, however, Jesse had almost completed a domestic violence prevention program. The circumstances are markedly different from domestic violence factors in Jesusa. There, the dependency proceedings were initiated when the child’s pregnant mother was hospitalized with injuries after the child’s biological father raped and beat the mother while the child was also present in the house. (In re Jesusa V., supra, 32 Cal.4th at p. 595.) There was no showing that the biological father participated in any domestic violence prevention program during the proceedings.
In sum, a primary factor the Court affirmed in Jesusa as outweighing the others was that the husband, although not the biological father, had developed a bond with the child. (In re Jesusa V., supra, 32 Cal.4th at pp. 609-610.) That is essentially the same factor to which the juvenile court gave the greatest weight in its determination that Jesse, rather than Roberto, should be declared Shannon’s presumed father.
At the close of the hearing on Roberto’s petition, the juvenile court focused its conclusions on the factors relevant to the weightier policies and logic regarding the existing father-child relationship between Jesse and Shannon as compared with the absence of any such relationship between Roberto and Shannon. (Susan H. v. Jack S., supra, 30 Cal.App.4th at p. 1443.) The juvenile court stated: “My understanding of case law is that you look at the policy reason behind this code section [7611], the policy has to do with intact family structures and the point of marriage and family in our society and that the concept is that it’s in the best interest of the child to support the family structure and the marriage structure . . . . [T]he mother and father are still together, it is still an intact marriage . . . . [T]he court believes that [Jesse] is a presumed father because of his being married to the mother at the time of the conception and birth, and while not physically cohabiting with her [at that time], there was period of separation that still falls within the requirement of that code section. [¶] [I]n addition, [Jesse] has held himself out as the father and openly accepted the child in his home, knowing that he was not the biological father, . . . because the child was a part of that marriage and family structure. Clearly, that outweighs the benefit of the relationship with [Roberto] . . . [. T]he evidence today, albeit somewhat a level of hearsay, is that [Roberto] has completed the equivalent of the [voluntary declaration of paternity] form, but only lived with the child for three months, has not had a relationship in the child’s life.”
In expressing the basis for its decision, the juvenile court did not specifically address each matter which Roberto identified as relevant. The record shows that there was no abuse of discretion with regard to the factors considered, in that the court received and admitted evidence concerning each of them in the course of weighing considerations to reach its decision. (In re Jesusa V., supra, 32 Cal.4th at p. 608.) The factual findings as to each factor the juvenile court cited in support of its decision arose from facts which were largely undisputed. The relationship of the factors to the policies underlying the law applicable to presumed father status is apparent and reasonable. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) We conclude that the juvenile court did not abuse its discretion, but rather, properly declared Jesse to be Shannon’s presumed father. (Gabriel P. v. Suedi D., supra, 141 Cal.App.4th at p. 864.)
3. Providing Reunification Services Prior to Presumed Father Determination
Roberto contends that the juvenile court erred by failing to provide him with reunification services so that he could reestablish his paternal relationship with Shannon prior to the court making a final determination of presumed father status. We disagree.
The juvenile court was not, and could not be, required to offer reunification services to Roberto prior to making a presumed father determination. By statute, a juvenile court is required to provide reunification services to one man only and that is the man whom the court has determined to be the child’s statutorily presumed father. (Welf. & Inst. Code, § 361.5, subd. (a); In re T. R., supra, 132 Cal.App.4th at p. 1209.) A juvenile court has discretion, however, to order reunification services for a biological father, if the services will benefit the child. (Welf. & Inst. Code, § 361.5, subd. (a).) Hence, we review the juvenile court’s failure to offer Roberto reunification services prior to determination of Shannon’s presumed father under the abuse of discretion standard. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Welfare and Institutions Code section 361.5, subdivision (a), provides, subject to exceptions not applicable to the instant case: “[W]henever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.”
The evidence before the juvenile court indicated that, even if Roberto were offered reunification services, it was highly unlikely that he would participate in them. From the beginning of the dependency proceedings through the time of the hearing on Roberto’s petition, the same immigration-related legal barriers existed to prevent Roberto from coming to California to be more involved in Shannon’s life or Shannon from going to visit Roberto in Mexico. Further, at his petition hearing, Roberto made no showing as to whether or how he would be able to come to California from Mexico in order to participate in reunification services. Counsel for all the parties acknowledged and commented on this to the juvenile court.
Thus, we conclude that there was a reasonable basis for declining to offer Roberto reunification services prior to the presumed father determination or at any time thereafter. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) In view of the evidentiary basis for the juvenile court’s decision, the court would not have reached a different decision than it did in affirming Jesse as Shannon’s presumed father. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.) We conclude that the juvenile court did not abuse its discretion in declining to order reunification services for Roberto. (Ibid.)
4. Time for Making Presumed Father Determination
Roberto contends that, under the unique facts of this case, the trial court erred by prematurely making a final presumed father determination and denying his petition prior to affording Roberto any family reunification services and prior to adjudication. We disagree that the trial court erred with respect to the time of its determination.
In In re Jesusa V., supra, 32 Cal.4th 588, the California Supreme Court held that a juvenile court has the discretion to make a presumed father determination at any time during the pendency of the proceedings. (Id. at pp. 620-621.) In the instant case, although the initial presumed father determination was early in the dependency proceedings, Roberto exercised his right to file a petition and was afforded ample opportunity to present his case prior to any decision on a permanent plan for Shannon. We conclude the juvenile court did not abuse its discretion with respect to the timing of its decisions on presumed father status. (In re Jesusa V., supra, 32 Cal.4th at pp. 620-621.) Having determined that the juvenile court did not abuse its discretion with respect to any of the issues raised by Roberto, we conclude that the juvenile court properly denied Roberto’s petition. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
DISPOSITION
The order is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.