Opinion
B309601
09-20-2021
In the Matter of Jose O., A Person Coming Under Juvenile Court Law. v. LUIS O., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Vincent Uberti, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 20CCJP01557B Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
Vincent Uberti, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
In November 2020, the juvenile court found jurisdiction over minor Jose O. (born February 2017) on three grounds pled in a petition brought by the Los Angeles County Department of Children and Family Services (DCFS) under Welfare and Institutions Code section 300, subdivision (b)(1) (Section 300(b)(1)). Specifically, the court found that Jose was at substantial risk of harm because: (1) appellant-father Luis O. and non-party mother Lorena R. had a history of domestic violence, and Mother permitted Father to be around Jose; (2) Father was a substance abuser who had cared for Jose while under the influence, and Mother permitted Father to be around Jose; and (3) Mother was involved in drug trafficking. The court then removed Jose from Father's custody and released him to Mother.
Undesignated code references are to the Welfare and Institutions Code.
On appeal, Father contends the court erred in: (a) finding jurisdiction under Section 300(b)(1); (b) removing Jose from his custody; (c) failing to state the facts on which its decision to remove Jose from his custody was based; and (d) failing to follow the requirements of the Indian Child Welfare Act (ICWA). We conclude that the court did not err in finding jurisdiction, and that Father has forfeited his other arguments. We therefore affirm. We also grant DCFS's motion to augment the record with a copy of the ICWA-020 form Father filed with the court, as well as his court-ordered case plan.
STATEMENT OF RELEVANT FACTS
A. The Family
The petition was filed on behalf of ten-year-old Celeste H. (born July 2009) and three-year-old Jose. While Mother is the parent of both children, Father is the parent only of Jose. This appeal concerns only Jose.
Though this appears to be Father's first involvement with DCFS, Father has an extensive criminal history. As relevant to this case, in January 2020 he pled nolo contendere to inflicting injury on a former or current spouse, cohabitant, romantic partner, or co-parent and was sentenced to five years of probation and a short jail term. On February 20, 2020, Father admitted to violating probation, had his probation revoked and terminated, and was sentenced to six years in prison.
According to an inquiry DCFS made on the California Department of Corrections and Rehabilitation's website on March 13, 2020, Father would not be eligible for parole until December 2024.
B. DCFS Investigates Two Referrals
On February 10, 2020, DCFS received a referral that Father had committed two separate acts of domestic violence that day. During the first incident, Father grabbed Mother by the arm to prevent her from leaving, and left a bruise. During the second incident, Father was intoxicated and after arguing with Mother, hit her on the side of her head several times. Mother's adult son Mario intervened, and Father left. The referral also stated there had been at least 20 unreported domestic violence incidents between Father and Mother.
On March 12, 2020, DCFS received a referral that the DEA was investigating Mother for drug trafficking around the children's home, and had found 11.5 kilograms (25.3 pounds) of cocaine and 5.1 kilograms (11.22 pounds) of methamphetamine in Mother's storage unit. A DEA agent confirmed these facts with a children's social worker (CSW), and also reported that a small bag of methamphetamine had been found in Mother's car. The agent expressed concern for the children's safety as any drug trafficking around the home would place the children at risk of physical harm.
The CSW interviewed Mother in her home, which was “extremely dirty and messy....” Mother explained that someone would drop narcotics off at her home, she would bring them inside to verify what they were, and then she would store them in her storage unit until someone else picked them up. Mother reported this last occurred two days prior, and that the children were in the living room when she brought the drugs in. She also admitted she transported the drugs to the storage unit using the same car she used to run errands with the children. Mother later stated she feared for her and her children's lives after the DEA seized the drugs from her storage unit.
Celeste confirmed she had visited the storage unit with Mother, though she did not know what Mother stored there.
Regarding the methamphetamine found in the car, she opined it belonged to Father who, before being arrested, had been storing his belongings and sleeping in the car. Mother claimed Father had been using methamphetamine for years and might have cared for the children while under the influence. Mother also said Father abused alcohol and drank daily, but claimed she never left Father alone with the children.
Mother admitted to a past substance abuse problem but denied currently using any drugs. She agreed to drug test that day, but called the CSW in the evening to report she was unable to test because she forgot to bring her identification card; she tested negative the next day.
Mother also reluctantly discussed one of the domestic violence incidents that had occurred on February 10, 2020. Father was “‘really drunk and probably high on meth'” when he entered the home asking for money to buy alcohol. They argued, and Father began trying to hit her on the head. After she covered her head with her hands and moved back, her adult son Mario intervened and punched Father, causing him to fall to the floor. Mario then pinned Father to the ground while Mother kicked him, before instructing Mario to let him up. As Father was leaving the apartment, she followed to ensure the door was closed, but Father kicked the door, breaking the frame and causing Mother to fall to the floor. Father then grabbed a vacuum cleaner and smashed it into the floor, into a table, and into the television set. The children were in the house, but Mother claimed she had told Celeste to take Jose into the bedroom and close the door. Mario mostly confirmed Mother's story, though he thought Jose had been in the living room and Celeste had been outside playing with the neighbors. Both Mario and Mother's other adult son Moises confirmed Father had a drinking problem. Mario also suspected Father used drugs. This incident resulted in father's arrest.
The police report from the incident contains a statement from Father admitting he was intoxicated.
The police report from the incident contains a statement from Celeste stating she was in Mother's bedroom.
Father was charged with inflicting corporal injury on a former or current spouse, cohabitant, romantic partner, or co-parent, but at the request of the prosecution, the charge was dropped after Father was sentenced to six years for violating probation.
Mother agreed to a voluntary safety plan requiring her to move out of her home and into her father's house, and to refrain from drug trafficking, from driving the children in the car that had been used to transport narcotics, and from keeping any drugs or drug paraphernalia in the house. However, four days later, DCFS received a call from Mother stating she intended to move back to her home, because she believed that “the only concern for the home was that the home was dirty.” When the CSW explained that the children would be at risk because her criminal associates were aware of her home address, Mother stated she was no longer involved in drug trafficking, and accused DCFS of trying to take away her children.
C. DCFS Files a Petition and Continues Investigating
On March 20, 2020, DCFS filed a petition under section 300, subdivisions (a) and (b)(1). Counts a-1 and b-1 identically alleged that Mother and Father had a history of engaging in violent altercations, and described the second February 10 incident. Count b-2 alleged that Father had a history of substance abuse, was a current abuser of methamphetamine and alcohol, and had been under the influence of those substances when caring for the children. Count b-3 alleged that Mother was involved in drug trafficking, brought drugs into the home while the children were present, stored drugs in the car in which the children were transported, and kept drugs in a storage unit that she and Celeste frequented. Mother submitted an ICWA-020 form indicating no Indian ancestry. At the detention hearing, the court found a prima facie case that Jose was a person described by section 300, but determined there were reasonable services to prevent detention and released him to Mother on the conditions that she continue living with the maternal grandfather, that she cooperate with DCFS and permit DCFS visits, that she continue to drug test clean, and that she not engage in any drug trafficking or permit any drugs in the home. The court also detained Jose from Father, but permitted telephonic visits.
In the subsequent investigation, both Mother and Celeste were extremely reticent. Mother claimed that what she had previously told the CSW was what had happened, and she had no further comment. Mother also saw no danger in living with the children in her home, or in receiving and storing drugs for others, because “‘the first time I spoke to this person [presumably the person for whom she was storing drugs], they value family. They told me I don't have to worry.'”
DCFS was unable to speak with Father. The prison in which he was incarcerated permitted him only one visitor a month, and requested that DCFS send a list of questions for Father to answer. DCFS sent these questions in April 2020, but had received no responses by the time it drafted its September 2020 status report. However, Mother reported that Father was calling Jose and her once a week to chat with Jose and receive updates on his well-being.
In a November 2020 last minute information, DCFS noted that Mother had several “[n]o [s]how[s]” for her drug tests between August and November 2020. Specifically, Mother failed to test on six out of nine testing days -- once because she was feeling unwell, twice because she claimed she did not know she was required to continue testing after the September status hearing, once because she did not realize her testing referral had been updated after it expired, and twice because she had no valid identification card. However, Mother appeared to be progressing in other areas (she was enrolled in parenting and domestic violence classes and individual counseling).
On November 30, 2020, the court arraigned Father, who denied the allegations. Father filed an ICWA-020 form claiming no Indian ancestry, and the court found ICWA inapplicable. Continuing to adjudication, Mother's counsel asked the court to dismiss her from the petition, and to terminate jurisdiction with a voluntary plan or a family law order. Her counsel argued that the children were not present during the February 2020 domestic violence incident, that domestic violence was unlikely to reoccur because Father was serving a six-year prison sentence, that Mother was doing well in her programs, that there was no evidence the children were exposed to drugs, and that aside from some confusion that resulted in Mother not testing for a period of time, she had otherwise consistently tested negative for drugs. Father's counsel asked the court to dismiss the petition, arguing there was no evidence that Jose was endangered by any of Father's and Mother's actions. Jose's counsel agreed that count a-1 should be dismissed, but argued the court should sustain counts b-1, b-2, and b-3, because the evidence showed Mother had been unable to protect Jose from Father when he became violent while under the influence, and Mother had admitted to trafficking in drugs. However, counsel acknowledged the progress Mother had made and requested the court terminate jurisdiction with a voluntary plan. Celeste's counsel agreed with Jose's counsel, except that she indicated she would agree with DCFS's recommendation to keep the case open because Mother was still in the “beginning part of her progress.” DCFS's counsel submitted count a-1 to the court, but argued counts b-1, b-2, and b-3 should be sustained. Given Mother's recent missed drug tests, DCFS's counsel also argued against a voluntary plan.
The court dismissed count a-1, but sustained counts b-1, b-2, and b-3. The court then ordered Jose removed from Father and released to Mother, granting Father monitored visitation, but refusing him family reunification services because of the length of his prison sentence. Father timely appealed.
DISCUSSION
“On appeal, the ‘substantial evidence' test is the appropriate standard of review for both the jurisdictional and dispositional findings.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under a substantial evidence review, “‘we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders. Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment.'” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) “Evidence from a single witness, even a party, can be sufficient to support the trial court's findings.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
A. The Court Did Not Err in Finding Jurisdiction
“When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E., supra, 171 Cal.App.4th at 451.) Here, Father contends the court erred in sustaining counts b-1, b-2, and b-3. Because we conclude the court properly assumed jurisdiction under count b-3, we need not consider the court's findings under the other counts.
A child is a person described by Section 300(b)(1) if “there is a substantial risk that the child will suffer serious physical harm... as a result of the failure or inability of his or her parent or guardian to adequately... protect the child....” (§ 300, subd. (b)(1).) “A section 300, subdivision (b) jurisdictional finding may not be based on a single episode of endangering conduct in the absence of evidence that such conduct is likely to reoccur.” (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 (Yolanda L.).) “To establish a defined risk of harm at the time of the [adjudication] hearing, there ‘must be some reason beyond mere speculation to believe the alleged conduct will recur.'” (Ibid.) In other words, by assuming jurisdiction under count b-3, the juvenile court necessarily found that Jose was at risk because Mother's drug trafficking was likely to reoccur.
Father does not dispute that Mother trafficked in drugs or that doing so endangered the children; instead he argues the court erred in finding Jose was at risk because Jose had suffered no harm since the detention hearing, because Mother had received good feedback from her program administrators, and because Mother had negative drug tests. But Father ignores the evidence before the court that Mother had no qualms about either bringing drugs into the home while the children were present or transporting the children in the same vehicle she used to transport drugs, and failed to recognize these actions endangered the children. Additionally, Mother missed six of nine drug tests in the three months before the adjudication hearing, and though she previously admitted to fearing for her and her children's lives due to the DEA's seizure of drugs from her storage unit, she later dismissed any such concerns, claiming her children would be safe because her drug trafficking associates had told her “they value family” and she did not have to worry. In fact, just four days after agreeing to move to her father's house, she informed DCFS she intended to return to her home with her children, believing the only issue was the home's cleanliness, and not the fact that disgruntled drug traffickers knew where she lived, and that she was being investigated by the DEA. When DCFS expressly explained the danger to her, Mother's only response was to proclaim she no longer trafficked in drugs, and that DCFS was trying to take her children.
On this issue we find Yolanda L. instructive. There, three pounds of crystal methamphetamine were found in the father's truck and he admitted this was the second time he had picked up a box containing illegal narcotics in exchange for money. (Yolanda L., supra, 7 Cal.App.5th at 989-990.) The appellate court affirmed jurisdiction under Section 300(b)(1), finding the following evidence supported the conclusion that drug trafficking was likely to reoccur: “[the father] was the subject of a drug trafficking investigation by a multi-agency task force, a large amount of narcotics was found in his possession on September 29th, he admitted he had engaged in similar conduct at least once before, his loaded gun was stored in a hall closet in the family home, and a police dog ‘alerted' to a couch in the living room.” (Id. at 994.) The appellate court additionally noted that “it was reasonable for the juvenile court to infer that father's use of the truck to engage in large-scale drug trafficking exposed the children to a risk of harm because they were sometimes in the truck, ” and “from the evidence that father stored a loaded gun in an easily accessible location in the family home, and a police dog ‘alerted' to a couch in the living room, the juvenile court could reasonably conclude that father's drug trafficking activities did not occur only in the truck, but sometimes in the family home.” (Ibid.)
Here, the facts are more egregious. Mother was also the subject of a drug trafficking investigation, but was found to have more than twelve times the amount of drugs the Yolanda L. father had (25.3 pounds of cocaine and 11.22 pounds of methamphetamine, plus an additional bag of methamphetamine in Mother's car). The court here had no need to “infer” the children were transported in the same vehicle as the drugs or that drug trafficking occurred in the home -- Mother readily admitted both facts. Combined with Mother's missing the majority of her drug tests in the three months before the adjudication hearing, and her inability or unwillingness to understand the danger drug trafficking posed to her children, we find ample evidence supported the court's finding that Mother's drug trafficking was likely to reoccur and endanger Jose.
B. Father Has Forfeited His Other Arguments
Father argues the court erred in: (1) removing Jose from his custody; (2) failing to state the facts on which this decision was based; and (3) failing to meet the requirements of ICWA. We conclude Father has forfeited these arguments.
1. Removing Jose from Father's Custody
Father argues that substantial evidence does not support the court's removal order. Specifically, citing section 361, subdivision (c) (Section 361(c)), he argues that the court could only have removed Jose if “there ‘is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home.'”
But Section 361(c) is inapplicable here. That section applies only when a child is to be removed from a parent “with whom the child resides at the time the petition was initiated.” (§ 361, subd. (c).) Here, it is undisputed that by the time the petition was filed in March 2020, Father had been found to be in violation of probation, and sentenced to six years in prison. Thus, the relevant statute is section 361, subdivision (d) (Section 361(d)), which provides that “A dependent child shall not be taken from the physical custody of his or her parents... with whom the child did not reside at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent... to live with the child or otherwise exercise the parent's... right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's... physical custody.” (§ 361, subd. (d).)
Father does not contend the court erred in removing Jose under Section 361(d). Even after DCFS cited to the correct standard in its appellate brief, Father still failed to address Section 361(d) in his reply brief, instead insisting that the court could not remove Jose unless it had made a finding under Section 361(c). We thus find Father has forfeited any contention that the court erred in removing Jose under Section 361(d). (See, e.g., WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record”]; ibid. [“we may disregard conclusory arguments that are not supported by pertinent legal authority”]; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“We are not required to examine undeveloped claims or to supply arguments for the litigants”].)
2. Failure to State Facts on Which Removal Was Based
Father additionally contends the court erred by not stating the facts on which the decision to remove Jose was based, as required by section 361, subdivision (e). We agree with DCFS's contention that Father forfeited this argument because “Father's counsel made no objection [to] the juvenile court's removal findings or order, and so did not raise any objection that the court failed to [satisfy] the requirements of section 361, subdivision (e).” (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected”].) Had Father raised this issue in the proceedings below, the juvenile court could have stated the facts upon which it based its ruling.
(§ 361, subd. (e) [“The court shall state the facts on which the decision to remove the minor is based”].)
Father failed to address this argument in his reply brief.
3. ICWA
Finally, Father argues conclusorily that “the juvenile court did not comply with the Indian Child Welfare Act” and “urges this Court to find that requirements under the Indian Child Welfare Act were not met and to remand the case for further proceedings in that regard.” Father does not explain how the court failed to comply with ICWA, and the argument is therefore forfeited. (See WFG National Title Ins. Co. v. Wells Fargo Bank, N.A., supra, 51 Cal.App.5th at 894; Allen v. City of Sacramento, supra, 234 Cal.App.4th at 52.) In any case, because both parents submitted ICWA-020 forms claiming no Indian ancestry, we discern no error in the court's finding ICWA inapplicable.
DISPOSITION
The court's orders are affirmed.
We concur: WILLHITE, J. COLLINS, J.