Opinion
B327143
11-30-2023
In re R.T., et al., Persons Coming Under the Juvenile Court Law. v. A.T., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Los Angeles County, No. 22PSJP00111, Stacy Wiese, Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, P. J.
A.T. (Father) asks us to reverse the juvenile court's orders (1) exercising dependency jurisdiction over his two daughters pursuant to Welfare and Institutions Code section 300, subdivision (g), (2) removing the children from his custody, and (3) imposing a case plan that requires him to complete a parenting program and restricts him to monitored visits with the children.
All subsequent statutory references are to the Welfare and Institutions Code.
We conclude, however, that substantial evidence supports the juvenile court's jurisdictional and removal orders, and that Father forfeited his challenges to the case plan. We therefore affirm.
FACTUAL AND PROCEDURAL SUMMARY
We limit our summary to the facts and procedural history relevant to our resolution of this appeal.
Father and T.L. (Mother) share two children: R.T. (age 5 years) and E.T. (age 4 years). In July 2021, authorities arrested Father on murder charges. He remained incarcerated throughout the dependency proceedings relevant to this appeal. Following Father's incarceration, the children initially resided with Mother.
In April 2022, Mother-who described herself as "not stable"-left the children in the care of their paternal grandmother, promising to retrieve the children in May 2022. Mother failed to do so, and on July 19, 2022, the paternal grandmother brought the children to the probate court in Pomona, California, to seek legal guardianship. During an interview with court staff, the paternal grandmother disclosed that she was "schizophrenic and ha[d] depression issues." In addition, she was unable to answer questions about the children's medical history, and the court interviewer observed that R.T. appeared to have a skin infection. Court staff reported the incident to the Department of Children and Family Services (DCFS).
The next day, a social worker located the paternal grandmother and the two children at a Residence Inn in Ontario, California. The paternal grandmother explained that she was seeking legal guardianship of the children to obtain financial aid because Mother had provided her with only a few hundred dollars to care for the children. She also confirmed that she had a history of mental health issues and that she had stopped taking her prescribed psychotropic medications. Following this initial interview, the paternal grandmother failed to keep in contact with social workers, and DCFS concluded she had absconded with the children in an attempt to retain physical custody.
On August 26, 2022, DCFS filed a section 300 petition on behalf of the two children, alleging, inter alia, that Mother placed the children at risk of serious harm by leaving them in the care of their paternal grandmother, who had "unresolved mental health issues, including a history of depression, schizophrenia, bipolar disorder, and multiple personality disorder." (Capitalization omitted.) The petition alleged further that Father's criminal history endangered the children.
At the time of the initial hearing on the petition, DCFS had been unable to locate the paternal grandmother or the children. The court therefore issued an arrest warrant for the paternal grandmother and protective custody warrants for the two children. Although Father did not appear at the hearing, counsel appeared on his behalf and relayed his request that DCFS assess Tani B., whom Father had identified as a paternal aunt, as a possible placement for the children.
At the initial hearing, Father's counsel appears to have mistakenly referred to Tani B. as "Dani T."
Approximately one month later, on September 26, 2022, police located the paternal grandmother and the children in a park, where they had been sleeping at night. Officers observed the paternal grandmother slapping R.T. in the face, shoulder, and neck several times. The officers then arrested the paternal grandmother, and DCFS placed the children with a nonrelative foster caregiver.
At the subsequent September 29 and October 6, 2022 hearings, Father again proposed Tani B. as a potential placement for the children. Mother, however, opposed placement with Tani B., explaining to a social worker that she did not want the children placed with any of Father's family or friends because" '[t]hey all work together and they all knew where the girls were the whole time [the children were missing with the paternal grandmother]. [Tani B.] knew everything....She is [Father's] best friend; she's not even family. She knew where [the] [children] were this whole time and now she wants to have them because she knows I don't want her to see them.... [Father] knew too and he told me I was never going to see my kids.' "
When DCFS interviewed Tani B., she stated-contrary to Father's representation that she was a paternal aunt-that "she was unsure if she [was] biologically related to the children." In addition, although she denied having any adult criminal history, DCFS's investigation revealed that she had served more than six years in prison for second degree robbery. Based on its investigation, DCFS recommended against placing the children with Tani B., and on October 24, 2022, the juvenile court found that she was not a suitable placement.
After the court rejected Tani B. as a potential caregiver, Daniel G. (Mr. G.)-who identified himself as the children's paternal great uncle-reached out to DCFS to request custody of the children. Mr. G. represented that he was an approved foster parent, and that he and his wife, Mrs. G., had four foster children in their care.
At the next hearing, Father requested that the juvenile court release the children to him so that he could place the children with Mr. G. Mother opposed Father's request, urging that she believed paternal grandmother had arranged Mr. G.'s request for placement. The court ordered DCFS to assess Mr. G. as a possible caretaker in advance of the next hearing, which was set for February 15, 2023.
DCFS concluded through its investigation that Mr. G. was not, in fact, related to Father. Although Mr. G. represented to the interviewing social worker that his brother, Desmond P., was Father's father, this representation conflicted with Father's statement to social workers in an unrelated 2010 investigation that a man named Ricky H. was his father. Mr. G. indicated further that Desmond P. had suffered a traumatic brain injury and thus presumably could not confirm his relationship with Father. In contrast, both Father's wife and Ricky H. himself confirmed that Ricky H. was Father's father. In addition, Ricky H. stated that he was unfamiliar with Mr. G.
Based on this investigation-as well as a social worker's observation that the children did not appear to know Mr. G. during a January 19, 2023 in-person visit-DCFS recommended against placing the children with Mr. and Mrs. G. DCFS then filed an amended petition on behalf of the children, adding an allegation pursuant to section 300, subdivision (g) that Father had failed to provide for the children or to make an appropriate plan for their care during his incarceration.
On February 15, 2023, the juvenile court conducted a combined adjudication and disposition hearing on the amended petition. Although Mother failed to appear, both Father and Mr. G. appeared at the hearing. The court dismissed the amended petition's allegations that Father's criminal history endangered the children and struck the allegations that Father was aware of the paternal grandmother's unresolved mental health issues.
Along with its respondent's brief, DCFS filed a motion to augment the appellate record with (1) a copy of the amended petition as interlineated by the juvenile court, and (2) an August 14, 2023 status review report submitted to the court. Father does not oppose adding the interlineated amended petition to the appellate record, and we grant that portion of DCFS's motion. Father, however, opposes the portion of DCFS's motion seeking to augment the appellate record with the status review report, arguing that we should not consider postjudgment evidence in evaluating the challenged jurisdictional and dispositional orders. He requests further that we strike from DCFS's respondent's brief all references to information derived from the report. Because we do not rely on the report or the information it contains in resolving this appeal, we deny DCFS's request to add the report to the appellate record, as well as Father's motion to strike.
The court sustained the petition's remaining allegations, exercising jurisdiction over the children under (1) section 300, subdivision (b)(1), based on Mother's decision to leave the children with the paternal grandmother, and (2) section 300, subdivision (g), based on Father's inability "to provide the children with the basic necessities of life" and both parents' failure to make an appropriate plan for the children's care.
The juvenile court then found by clear and convincing evidence pursuant to section 361, subdivisions (a)(1), (c), and (d), and section 362, subdivision (a), that, absent removal from Mother and Father, the children would face "substantial danger" due to both parents' failure to make a suitable caretaking plan. To deny custody to a noncustodial parent-which Father was-section 361.2 requires "detriment" to the child. Although the court did not mention section 361.2, it did find "that it would be detrimental to the safety, protection, or physical or emotional well-being, and special needs . . . of the child[ren] to be returned to or placed in the home or the care, custody, and control of . . . [the] parent(s)."
Subdivision (a)(1) of section 361 authorizes the juvenile court to "limit the control to be exercised over [a] dependent child by any parent." (§ 361, subd. (a)(1).) Subdivision (c) of section 361 provides that "[a] dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence" of certain enumerated circumstances, including that there "would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent[s'] . . . physical custody." (§ 361, subd. (c)(1).) Similarly, subdivision (d) of section 361 authorizes the juvenile court to remove a child from the physical custody of a parent with whom the child does not presently reside only upon a finding by "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).) Finally, section 362, subdivision (a) provides, "[i]f a child is adjudged a dependent child of the court on the ground that the child is a person described by [s]ection 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court." (§ 362, subd. (a).)
Section 361.2, subdivision (a), provides in full: "If a court orders removal of a child pursuant to [s]ection 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of [s]ection 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 placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent shall not be, for that reason alone, prima facie evidence that placement with that parent would be detrimental." (§ 361.2, subd. (a).)
In making its findings with respect to Father, the juvenile court explained: "Previously [Father] had an alleged paternal aunt who wanted the children placed with her. Then it came out she wasn't really the aunt. I'm very concerned about everybody's involvement in this case and about who is really involved in this case and who is really not. I'm hearing one thing obviously from Mom's side, and one thing from Father's side. I have concerns especially after the extensive investigation that [DCFS] did with respect to Mr. [G.] I'm not going to release the children to Father with a plan to release to Mr. [G.] Mr. [G.] is a foster parent who does have four children. I will ask [DCFS]-they can assess his home. He's going to have to go through the full [resource family approval] process."
The court then ordered that the children remain placed with their nonrelative foster caregiver. Father timely appealed the court's February 15, 2023 jurisdictional and dispositional orders.
DISCUSSION
A. Father's Jurisdictional Challenge Fails
Father first contends the juvenile court erred by exercising jurisdiction over the children based on DCFS's section 300, subdivision (g) allegations against him. We disagree.
As an initial matter, we note that we need not address Father's jurisdictional argument on its merits because the juvenile court's unchallenged findings concerning Mother create an independent basis for jurisdiction. (See In re J.N. (2021) 62 Cal.App.5th 767, 774 (J.N.) [" '[w]hen 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' "].)
Moreover, even considered on its merits, Father's jurisdictional challenge fails. (See J.N., supra, 62 Cal.App.5th at p. 774 [appellate court has discretion to consider the merits of a jurisdictional challenge when the juvenile court's jurisdictional finding serves as the basis for a dispositional order also challenged on appeal].)
"[J]urisdictional findings [are reviewed] for substantial evidence and will [be] affirm[ed] if 'there is reasonable, credible evidence of solid value to support them. [Citations.]'" (In re Jonathan B. (2015) 235 Cal.App.4th 115, 119.)" 'We review the evidence in the light most favorable to the dependency court's findings and draw all reasonable inferences in support of those findings. [Citations.] Thus, we do not consider whether there is evidence from which the dependency court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw.' [Citation.]" (J.N., supra, 62 Cal.App.5th at p. 774.)
Subdivision (g) of section 300 authorizes the juvenile court to exercise jurisdiction over children when, among other circumstances, they "ha[ve] been left without any provision for support" or when their "parent has been incarcerated . . . and cannot arrange for [their] care." (§ 300, subd. (g); see In re Andrew S. (2016) 2 Cal.App.5th 536, 543 (Andrew S.) [section 300, subdivision (g) jurisdiction is appropriate" 'when, at the time of the [jurisdictional] hearing, a parent has been incarcerated and does not know how to make, or is physically or mentally incapable of making, preparations or plans for the care of his or her child' "].) DCFS bears the burden of proving its jurisdictional allegations. (See In re S.D. (2002) 99 Cal.App.4th 1068, 1077 (S.D.).)
Father urges that DCFS failed to meet its burden here because he arranged for Tani B. or Mr. and Mrs. G. to provide for and serve as caretakers for the children. Relying on S.D., supra, he contends this demonstrated his ability to make plans for the children's care, notwithstanding the juvenile court's determinations that neither proposed placement was suitable. (See S.D., supra, 99 Cal.App.4th at p. 1079 ["[n]othing in section 300, subdivision (g) . . . requires an incarcerated parent . . . to prove affirmatively the suitability of [the] caretaking arrangements. It requires only that [the parent] be able to make the arrangements"].)
Father ignores, however, that DCFS presented affirmative evidence that he could not arrange for the children's care- namely, (1) evidence that Father had misrepresented the nature of his relationship with at least one of the proposed caregivers, and (2) evidence that the proposed caregivers themselves made misrepresentations to DCFS and the juvenile court in their quest for physical custody of the children. Specifically, DCFS introduced evidence that Father had misrepresented that Tani B. was an extended family member. In addition, DCFS offered evidence that Tani B. had a prior conviction for second degree robbery, notwithstanding her representation that she had no adult criminal history. Finally, DCFS presented evidence that Mr. G. had misrepresented that he was related to Father.
Accordingly, we conclude that substantial evidence supports the court's exercise of jurisdiction over the children on the basis of the section 300, subdivision (g) allegations against Father.
The juvenile court's subsequent decision in May 2023 to place the children with Mr. and Mrs. G. does not alter our conclusion because we review the challenged orders based on the record as it stood at the time of the February 15, 2023 adjudication and disposition hearing. (See In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
B. Substantial Evidence Supports the Juvenile Court's Dispositional Order Removing the Children from Father's Custody
Father next challenges the court's dispositional order, arguing (1) the court incorrectly applied subdivision (c) of section 361 in making its removal determination, and (2) the record does not contain substantial evidence to support the findings necessary for removal under section 361.2 or subdivision (d) of section 361, which he contends are the applicable statutory provisions. (See J.N., supra, 62 Cal.App.5th at p. 777 [substantial evidence review of removal findings].) Again, we disagree.
Father is correct that subdivision (c) of section 361 is inapplicable to him. (See Andrew S., supra, 2 Cal.App.5th at p. 544 [in removing children from a parent incarcerated at the time DCFS filed its petition, the juvenile court "improperly relied upon section 361, subdivision (c), which governs the removal of children from the physical custody of a parent or guardian 'with whom the child resides at the time the petition was initiated' "].)
Whether section 361.2 or section 361, subdivision (d) governs here presents a more difficult question because both sections address a child's removal from a parent with whom the child does not reside. (See, e.g., 1 Seiser &Kumli, Cal. Juvenile Courts Practice and Procedure (2023) § 2.126 ["There are questions regarding the interplay between [the two sections] .... Under [section 361, subdivision d], the standard for removal is higher-requiring substantial danger and no reasonable means of protection without a removal finding-as opposed to the [section] 361.2 standard that placement would be detrimental to the child's 'safety, protection, physical or emotional wellbeing.' It may be that [section] 361.2 still applies to a noncustodial parent who 'requests custody' when a child is removed from a custodial parent and [section] 361[, subdivision] (d) applies when the noncustodial parent does not request custody"].)
We need not resolve this question, however, because the record contains substantial evidence under the standards set forth in both statutory provisions. (See, e.g., Andrew S., supra, 2 Cal.App.5th at p. 545, fn. 5 ["The substantial danger finding required to remove a child under section 361, subdivision (c) [or subdivision (d)], and the detriment finding required to deny custody to a noncustodial parent under section 361.2, subdivision (a), are fundamentally the same-and in each case must be founded upon clear and convincing evidence. Accordingly, in most cases the error in applying the wrong statute will be harmless"].)
Father requested at the dispositional hearing that the juvenile court release the children to him so that he could place them with Mr. G., the children's alleged paternal great uncle. But as discussed, ante, DCFS presented evidence that Mr. G. had misrepresented the nature of his relationship with Father. Given the uncertainty as to Mr. G.'s true identity at the time of the hearing-and Father's express statement that he intended to place the children with Mr. G.-we conclude that substantial evidence supports the dispositional order removing the children from Father.
C. Father Forfeited His Challenges to His Court-Ordered Case Plan
Finally, Father asks us to reverse the portions of his court-ordered case plan requiring him to complete a parenting program and restricting him to monitored visits with his children.
The record reflects, however, that Father-represented by counsel-"submit[ted]" on DCFS's recommendation for a parenting course. And although Father contends "the term 'submit' is confusing and often misused in dependency proceedings," he concedes that when a parent "submits" on DCFS's recommended case plan without objection, use of the term "submit" constitutes agreement with the recommendation. (See In re Richard K. (1994) 25 Cal.App.4th 580, 589 ["the mother's 'submitting on [DCFS's] recommendation' constituted acquiescence in or yielding to the social worker's recommended findings and orders"].) Nor did Father object after the court announced the order.
Father also failed to object to the portion of the juvenile court's order restricting him to monitored visits. We therefore conclude that Father has forfeited his challenges to his court-ordered case plan on appeal. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [the forfeiture doctrine "applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings"].)
DISPOSITION
The orders Father challenges on appeal are affirmed.
We concur: BENDIX, J. CHANEY, J.