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In re Fred M.

Court of Appeals of California, Second District, Division Five.
Nov 3, 2003
B165780 (Cal. Ct. App. Nov. 3, 2003)

Opinion

B165780.

11-3-2003

In re FRED M., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. FRED M., Defendant and Appellant.

Craig E. Arthur, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance on behalf of Petitioner and Respondent.


Appellant Fred M. appeals from the juvenile courts order pursuant to Welfare and Institutions Code section 366.26 terminating his parental rights with respect to Freddie M. and Kimberly M. We affirm.

In January 2001, the Los Angeles County Department of Children and Family Services ("DCFS") filed a petition alleging juvenile court jurisdiction over two-year-old Freddie and one-year-old Kimberly, the children of Fred and Karen M. Jurisdiction was alleged to exist pursuant to section 300, subdivisions (a) (serious physical harm); (b) (failure to protect from serious physical harm); (e) (severe physical abuse); (i) (cruelty); and (j) (abuse of sibling).

In September 2001, Fred was convicted and sentenced to six years in prison for violating Penal Code section 273a, subdivision (a)—child abuse or endangerment—based on physical injuries inflicted upon Freddie. At the contested jurisdictional hearing in December 2001 at which Fred appeared, the juvenile court modified and sustained the allegations of the petition and ruled that the children were within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (a), (b), (e), and (j).

The trial court declined to offer family reunification services to either parent and set a section 366.26 permanency planning hearing. Fred petitioned for extraordinary relief from the order setting a permanency planning hearing on the sole basis that he had been denied reunification services. We denied Freds petition for relief, holding that substantial evidence supported the trial courts denial of reunification services and that the denial of such services was appropriate under section 361.5, subdivisions (e), (b)(5), (b)(6), and (b)(12). (Fred M. v. Superior Court (Mar. 12, 2002, B155350) [nonpub. opn.].)

A hearing regarding the termination of Fred and Karens parental rights was conducted on March 3, 2003. Karen consented to the termination of her parental rights. Contesting the termination of his rights, Fred appeared and testified at the hearing. The juvenile court found that it would be detrimental for Freddie and Kimberly to be returned to their parents; that Fred had not established that he had maintained regular visitation and contact with the children and that the children would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(A)); and that there was clear and convincing evidence that it was likely that the children would be adopted. The court terminated Fred and Karens parental rights and freed Freddie and Kimberly for adoption.

Fred appealed from the order terminating his parental rights. We appointed counsel to represent him in this appeal. After examining the record, counsel filed a letter pursuant to In re Sade C. (1996) 13 Cal.4th 952, in which he indicated that he was unable to file an opening brief on the merits on Freds behalf. We advised Fred that he had 30 days in which to personally submit any contentions or arguments he wished us to consider.

Fred filed a letter in which he asserted that he did not injure Freddie or knowingly place him in danger; that the witnesses at his criminal trial committed perjury; that the juvenile court relied on the outcome of the criminal trial and did not afford him an opportunity to prove his innocence; that the juvenile court denied him information about, pictures of, and the opportunity to see his children; that the juvenile court justified its denial of reunification services to Karen on the ground that her whereabouts were unknown but that DCFS and the court knew where she was; that the denial of reunification services to Karen caused Freds parental rights to be terminated; and that he loved his children.

Few of Freds complaints concern matters cognizable on appeal at this stage of the dependency proceedings because they follow the denial on the merits of his challenge to the setting of a termination hearing by petition for an extraordinary writ on the basis of the denial of reunification services, and the termination of his parental rights. (Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 156; In re Zeth S. (2003) 31 Cal.4th 396, 413; In re Rashad B. (1999) 76 Cal.App.4th 442, 446-448; § 366.26, subd. (l).) To the extent that Fred intended by his letter to appeal the jurisdictional ruling on the basis that he neither injured Freddie nor knowingly placed him in danger of harm, such a challenge, even if properly raised, would nonetheless fail because the jurisdictional ruling was supported by substantial evidence. Fred had been seen shaking Freddie, dragging him approximately 25 feet by the arm, "hurling" him into a bedroom, and leaving him there unattended. In the days before his hospitalization, Freddie was observed by witnesses to be acting strangely, sleeping more than usual, and vomiting at night. Fred disregarded repeated suggestions that he take Freddie to a doctor for treatment. Fred admitted that he had noticed changes in Freddies behavior but did not seek medical help. Freddie was airlifted to a hospital, unconscious, with a severe laceration near his mouth, multiple bruises of differing ages on his chest, ribs, abdomen and head, and evidence of current and previous subdural bleeding. Freddie also had rib fractures, liver lacerations, fluid in the lungs and pelvis, scratches on his back and an old scar on his ankle, and evidence of bleeding and edema in his head—indications that he had been severely beaten, stepped on or squeezed drastically within the previous few days.

This evidence was sufficient to support the trial courts jurisdictional findings. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820 [jurisdictional ruling reviewed for substantial evidence].) Even if we were to accept Freds assertions that he did not injure his son or knowingly expose him to such injuries and that the witnesses who stated that they had seen Fred abuse Freddie were lying, the evidence of ongoing and unremedied physical abuse would nonetheless be sufficient to establish jurisdiction. (§ 300, subds. (b) ["The child has suffered . . . serious physical harm . . . as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child"]; (e) ["The child is under the age of five and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child"]; (j) ["The childs sibling has been abused . . . as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused"]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876. [when jurisdiction is found under multiple subdivisions, if sufficient evidence exists to support a finding of jurisdiction under any one subdivision, the ruling must be affirmed].) As this court has previously ruled, this evidence and Freds six-year sentence for child abuse or endangerment provided substantial evidence supporting the trial courts decision to refuse reunification services to him. (Fred M. v. Superior Court, supra, B155350.)

The order terminating parental rights is presumed to be correct. (In re Sade C. , supra, 13 Cal.4th at p. 994.) Reversal is required only if the parent raises claims of reversible error supported by argument and authority on each point. (Ibid .) Fred has failed to do so in this case. Fred has not challenged the courts findings that the children were adoptable and that he did not establish an exception to the termination of parental rights as set forth in section 366.26, subdivision (c)(1)(A).

Instead, Fred has alleged that reunification services were denied to Karen because her location was unknown even though DCFS and the court actually knew where she was. Fred appears to argue for reinstatement of his parental rights on this basis, stating, "if the childrens mother has done all her programs within the time allotted, or ha[s] a legal exception, then my parental rights also would not be terminated." Although in some circumstances courts reinstate one parents properly-terminated rights when the other parents rights are reinstated, this principle is inapposite when the court has not reinstated either parents rights. (In re Vincent S. (2001) 92 Cal.App.4th 1090, 1094, fn. 3.) Moreover, it does not confer standing on one parent to assert a non-appealing parents rights when, as in this case, the parents interests diverge. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193-1194; see also In re Joshua M. (1997) 56 Cal.App.4th 801, 807-808 [one parent cannot assert ineffective assistance of other parents counsel when the other parent has not appealed].) Here, Karen consented to the termination of her parental rights and to the adoption of her children, and has not appealed. Therefore, any error with respect to the denial of reunification services to her is not properly raised by Fred here and would not result in a reinstatement of Freds parental rights.

The other issues raised by Fred in his letter to this court similarly fail to present any legal argument or factual basis which would permit this court to reverse the juvenile courts order terminating his parental rights. We have examined the entire record and are satisfied that Freds appellate attorney has fully complied with his responsibilities and that no arguable issues exist. (In re Sade C.,supra, 13 Cal.4th at p. 959.)

DISPOSITION

The judgment is affirmed.

We concur: TURNER, P.J. and ARMSTRONG, J. --------------- Notes: All further references are to the Welfare and Institutions Code unless otherwise indicated.


Summaries of

In re Fred M.

Court of Appeals of California, Second District, Division Five.
Nov 3, 2003
B165780 (Cal. Ct. App. Nov. 3, 2003)
Case details for

In re Fred M.

Case Details

Full title:In re FRED M., et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:Court of Appeals of California, Second District, Division Five.

Date published: Nov 3, 2003

Citations

B165780 (Cal. Ct. App. Nov. 3, 2003)