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In re Salvador G.

California Court of Appeals, Second District, Seventh Division
Feb 23, 2011
B222729, B223094 (Cal. Ct. App. Feb. 23, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No. CK78878. Marguerite Downing, Judge.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant Salvador M.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant Oscar E.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.


ZELON, J.

Two fathers, Salvador M. and Oscar E., appeal the jurisdictional and dispositional orders of the juvenile court with respect to their children by B.G. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Marcos E., Elisa E., and Salvador G. (known as Jorge) are the children of B.G. Salvador M. is the father of Jorge; Oscar is the father of Marcos and Elisa.

The children came to the attention of the Department of Children and Family Services (DCFS) on August 31, 2009, when 6-year-old Elisa was taken to a clinic due to vaginal pain. She was later determined to have a sexually transmitted disease. Elisa told clinic workers that Salvador M. had fondled her vagina on multiple occasions.

Elisa told DCFS that Salvador M. had touched her and indicated that the touch was in her pelvic area. Using the word “thing” to describe both male and female genitalia, Elisa said that Salvador M. put his fingers inside her underwear and inside her “thing”; that he placed his “thing” inside her “thing”; and that he placed his “thing” inside her buttocks. Insertion of his penis hurt more than the use of his fingers, and it had happened many times.

Elisa, Marcos, and newborn Jorge were detained and Salvador M. was arrested. Salvador M. admitted digitally penetrating Elisa but denied penetrating her with his penis.

DCFS filed a dependency petition alleging that the three children were subject to the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b), (d), and (j), and that Marcos and Elisa also fell under the court’s jurisdiction under subdivision (g). The subdivision (b) allegations pertained to Salvador M.’s sexual abuse of Elisa and to B.G.’s failure to protect the children (allegation (b)(1)); to Salvador M.’s drug use (allegation (b)(2)); and to Oscar E.’s failure to provide Marcos and Elisa with the necessities of life (allegation (b)(3)). The subdivision (d) allegation also pertained to Salvador M.’s sexual abuse of Elisa and B.G.’s failure to protect the children. DCFS alleged under subdivision (g) that Oscar E. had failed to provide Marcos and Elisa with the necessities of life, and under subdivision (j) that the sexual abuse of Elisa and the mother’s failure to protect the children (allegation (j)(1)), and Salvador M.’s drug use (allegation (j)(2)) presented a substantial risk that all three children would be abused or neglected.

As part of a mediated agreement in which neither Oscar E. nor Salvador M. participated, B.G. submitted to jurisdiction on counts (b)(1), (d)(1), and (j)(1) of the petition, and the court found true those allegations with respect to B.G. The allegations with respect to the fathers were held in abeyance. At the later adjudication hearing, the court found the children to be subject to the jurisdiction of the juvenile court under section 300, subdivisions (b), (d), and (g). Specifically, the court found true counts (b)(1), (b)(2), (d)(1), and (g)(1) and dismissed the counts under subdivision (j).

Although Oscar E. stated that he would like custody of Marcos and Elisa until they could be reunified with their mother, the juvenile court denied his request. The court gave as reasons for its decision not to place Marcos and Elisa with their father that neither child wanted to live with him but instead wanted to live with their mother; that if Marcos and Elisa were sent to Tulare County, where Oscar E. lives, it would effectively preclude reunification with their mother; that the children’s therapist had indicated that it would be detrimental to place the children with Oscar E.; and that Oscar E. did not cooperate with Court Appointed Special Advocate (CASA) attempts to perform a courtesy visit to his home to assess it for placement. The court ordered family reunification services, and specifically for Oscar E., ordered parent education, drug testing, and conjoint counseling with his children as deemed appropriate by their therapist. Counsel for Oscar E. objected to the drug testing requirement, and the court changed its order. Oscar E. did not object to the parent education or conjoint counseling orders.

Oscar E. and Salvador M. appeal.

DISCUSSION

I. Sufficiency of the Evidence to Support Findings under Section 300

Salvador M. and Oscar E. each challenge the sufficiency of the evidence to support some of the bases for jurisdiction on which the juvenile court relied. Salvador M. contends on appeal that the evidence was insufficient to sustain the allegations under section 300, subdivisions (b) and (d) with respect to Jorge. Specifically, Salvador M. contends that the evidence that he sexually abused Elisa did not establish that there was any risk of serious physical to newborn boy Jorge. Oscar E. argues that there was no evidence to support the allegations under section 300, subdivision (g) with respect to Marcos and Elisa. Because the juvenile court’s other uncontested findings offer an independent basis for affirming the exercise of jurisdiction over the children, DCFS argues, and we agree, that the fathers’ challenges to the sufficiency of evidence are moot. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [single basis for jurisdiction is sufficient to uphold juvenile court’s order]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 [where one jurisdictional finding is supported by substantial evidence, appellate court need not consider sufficiency of evidence to support other findings].)

II. Oscar E.’s Remaining Jurisdictional Arguments

Oscar E. contends that the application of section 300, subdivision (g) in this case deprives him of equal protection under the law, comparing himself to an incarcerated parent who has nonetheless made provisions for his children’s care. He further contends that in sustaining the petition’s allegations under subdivision (g), the juvenile court exceeded its jurisdiction. Much like the arguments about the sufficiency of the evidence, this argument is moot because Elisa and Marcos would remain dependents of the court even if the findings under section 300, subdivision (g) were vacated. Because the juvenile court’s other uncontested findings offer an independent basis for affirming the exercise of jurisdiction over the children, Oscar E.’s other arguments with respect to this basis for jurisdiction are moot. (In re Dirk S., supra, 14 Cal.App.4th at p. 1045 [single basis for jurisdiction is sufficient to uphold juvenile court’s order]; In re Jonathan B., supra, 5 Cal.App.4th at p. 875 [declining to reach asserted constitutional issue with regard to one basis for jurisdiction when another basis was supported by sufficient evidence].)

III. Oscar E.’s Appeal of Dispositional Orders

Oscar E. argues on appeal that at disposition Marcos and Elisa should have been placed with him, and he further contends that the court erred in ordering him to attend a parenting program and to undergo conjoint counseling with Elisa.

In his reply brief, Oscar E. alerted this court that his appeal of the failure to place Marcos and Elisa with him had been impacted by further developments in the juvenile court. We have taken judicial notice of the minute orders concerning subsequent proceedings in this matter, and we understand from those orders that in proceedings the children were returned to their mother’s custody on September 15, 2010. Accordingly, Oscar E.’s challenge to the placement of the children at disposition is now moot.

With respect to Oscar E.’s complaints about being ordered to complete parenting education and conjoint counseling with Elisa, we observe, and he concedes, that he did not object to these orders at the disposition hearing. By failing to object in the juvenile court, Oscar E. forfeited the issue on appeal. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.)

Oscar E. seeks relief from his forfeiture because an objection to the dispositional orders would have been futile: “In this case, the children were not placed with Oscar due to a misapplication of the law, and the sustaining of a provision for support which was unwarranted, as argued herein and in the trial court. Under such circumstances, the orders made for disposition, based upon the incorrect legal premises, would have been futile to be challenged yet again for dispositional orders.”

Oscar E., however, has not demonstrated that challenges to these orders would have been futile. He does not explain, nor are we able to identify, any connection between the allegedly erroneous sustaining of the dependency petition allegation concerning Oscar E. and the failure to object to the subsequent orders for parenting education and conjoint counseling. He appeals the order that he attend parenting education on the basis that there was no substantial evidence that he lacked parenting skills-as Oscar E. puts it, “unless the classes were specialized to increase his earning abilities, ” they did not have a tendency to correct the conditions that had led to the dependency. With respect to the counseling with Elisa, Oscar E. argues that the record did not show any need for him to undergo counseling with her. Neither of these arguments is subsumed by the jurisdictional finding or the placement order at disposition in such a manner that objecting to these specific orders would have been futile. Moreover, Oscar E.’s counsel did object to the drug counseling that the court initially ordered, and the court, after argument, eliminated that order with respect to Oscar E. Oscar has not shown that an objection to these orders would have been futile, and he has therefore forfeited them on appeal. (In re Anthony P., supra, 39 Cal.App.4th at p. 641.)

IV. Oscar E.’s Motion to Strike Portions of the Respondent’s Brief

We have reviewed Oscar E.’s motion to strike portions of the respondent’s brief and find it to be without merit. The challenged statements in the respondent’s brief are appropriately supported both by references to the record on appeal and by the record itself, and the motion to strike is denied.

DISPOSITION

The judgment is affirmed.

We concur: PERLUSS, P. J., JACKSON, J.


Summaries of

In re Salvador G.

California Court of Appeals, Second District, Seventh Division
Feb 23, 2011
B222729, B223094 (Cal. Ct. App. Feb. 23, 2011)
Case details for

In re Salvador G.

Case Details

Full title:In re SALVADOR G., a Person Coming Under the Juvenile Court Law, v…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Feb 23, 2011

Citations

B222729, B223094 (Cal. Ct. App. Feb. 23, 2011)