Opinion
B320027
09-21-2023
In re Ar.H. et al., Persons Coming Under the Juvenile Court Law. v. J.H., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Nancy R. Brucker, by appointment of the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 19LJJP00201C-D, Donald A. Buddle, Judge.
Nancy R. Brucker, by appointment of the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Avedis Koutoujian, Deputy County Counsel, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
Father appeals from the juvenile court's jurisdictional findings and dispositional orders removing his children from his custody and denying him reunification services. We conclude substantial evidence supports the court's orders and affirm.
The parties are familiar with the facts and procedural history of the case, so we do not restate those details in full here. Below, we discuss only the facts and procedural history germane to the issues on appeal.
DISCUSSION
A. Jurisdictional Findings
1. Justiciability
As a threshold matter, the Los Angeles County Department of Children and Family Services (DCFS) contends that J.H.'s (father) challenge to the jurisdictional findings against him should be dismissed as non-justiciable. DCFS asserts the court sustained the allegations against both father and K.S. (mother) in the dependency petition filed on behalf of mother and father's children. Because father does not challenge the jurisdictional findings against mother, DCFS argues the trial court would have jurisdiction over the children regardless of the outcome of father's appeal. We are not persuaded by this argument.
Mother is not a party to this appeal.
"An important requirement for justiciability is the availability of 'effective' relief-that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.) Courts have consistently held "when a juvenile court's finding forms the basis for an order that continues to impact a parent's rights-for instance, by restricting visitation or custody-that jurisdictional finding remains subject to challenge." (In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).) Our Supreme Court recently clarified in D.P., supra, 14 Cal.5th at page 283, "[w]here a jurisdictional finding 'serves as the basis for dispositional orders that are also challenged on appeal' [citation], the appeal is not moot" and is thus justiciable. Because that is the case here, we conclude the issues raised on appeal are justiciable and will address the merits.
2. Governing Principles
Dependency jurisdiction may be asserted under subdivision (b) of Welfare and Institutions Code section 300 if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . [¶] . . . [t]he failure or inability of [his or her] parent . . . to adequately supervise or protect the child," or the "willful or negligent failure" of the parent to protect the child from the conduct of a custodian with whom the child has been left. (§ 300, subds. (b)(1)(A) &(B).)
All unspecified statutory references are to the Welfare and Institutions Code.
"Although section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation]. The court may consider past events in deciding whether a child currently needs the court's protection. [Citation.] A parent's "'[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.'" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384; see In re T.V. (2013) 217 Cal.App.4th 126, 133 ["[t]he focus of section 300 is on averting harm to the child"].)
3. Count b-2
Father, who is incarcerated, contends there was insufficient evidence to sustain the allegations in count b-2 of the dependency petition. We disagree.
DCFS filed a dependency petition on behalf of father's young children, Ar. H. (born Jan. 2019) and Ab. H. (born Dec. 2019). Count b-2 alleged father "left the children in the care of mother . . . who failed to reunify with the children through Juvenile Court. On multiple occasions, the children were found wandering outside of the children's home without the appropriate adult supervision. Such failure to make an appropriate plan for the children's care and supervision by the father, endanger [ sic ] the children's physical health and safety and places the children at risk of serious physical harm and damage."
Substantial evidence supports the court's jurisdictional finding as to count b-2. The evidence demonstrates father left the children in mother's care after he pled guilty to a drug charge and was sentenced to nearly six years in prison. Father did so despite knowledge of court orders granting father sole custody over the children and ordering only monitored visitation for mother due to mother's unresolved substance abuse.
Father's lack of an appropriate childcare plan led to extended, unsupervised time with mother, putting the children at risk. Mother and father executed a lease for a new apartment in the days leading up to his incarceration. Mother stated the children resided with her in the new apartment.
Personnel, tenants and visitors at mother's apartment complex observed the toddler-age children "wandering around the apartment complex every other day without supervision." Some of these incidents involved the children walking with unleashed dogs near the parking lot, in an active construction site, and on a different complex floor from mother's unit. When other tenants returned the children to mother's unit on one occasion, mother appeared to be "under the influence" and was shaken for a few minutes before she awoke. On another occasion, a babysitter who appeared to be smoking marijuana answered the door. During an inspection of mother's home, all smoke alarms in mother's apartment were missing, and there were multiple trash bags piled up in the unit.
Father resists the court's conclusion by arguing he did not leave the children with mother, but rather with the maternal and paternal grandmothers with "instructions" children were not to have unsupervised contact with mother. Substantial evidence demonstrates father left the children with mother. Father helped mother obtain a new apartment before he started his prison sentence, and mother reported the children lived there with her. Third parties also regularly observed the children wandering around the apartment complex without their grandmothers. Mother also told DCFS she fell asleep when the children were under her supervision because she had "no help from no one" with childcare.
Even if we accept father's contention that he left the children with their grandmothers, that plan still put the children at risk. The evidence shows father did not provide the grandmothers with "instructions" prohibiting them from leaving the children with mother. The grandmothers also reported leaving the children with mother. Paternal grandmother stated, "My son didn't tell me anything about not letting them go with [mother]." She also stated, "[father] didn't tell me what to do with the children when he went to jail as I am 63 years old and I knew what to do." Paternal grandmother also reported mother asked to have the children with her for eight days so "it was no problem for me to let them go with [mother]." There is no evidence father told maternal grandmother that mother was not to be with the children unsupervised. Maternal grandmother stated it was mother who told her that information. Yet maternal grandmother explained she still "[left the children] with [mother] sometimes."
Substantial evidence supports count b-2. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734 [juvenile court's jurisdictional findings are reviewed for substantial evidence]; In re L. Y. L. (2002) 101 Cal.App.4th 942, 947 [reviewing court must "draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion"].)
4. Count b-3
Father also asserts there was insufficient evidence to support sustaining the allegations in count b-3. Count b-3 alleged father's "criminal history of a conviction for Conspiracy to Distribute and Possess with Intent to Distribute Methamphetamine Sentence . . . endangers the children's physical health and safety and places the children at risk of physical harm, damage and danger."
The crux of father's argument is that substantial evidence does not support "an actual nexus between father's criminal history and any specifically identified substantial, current risk of serious physical harm to his children." We disagree.
Father's guilty plea and conviction resulted in his incarceration. There is substantial evidence demonstrating that due to his imprisonment, he failed to adequately protect the children from mother's neglect, and the children were therefore at substantial risk of serious physical harm.
Father was awarded sole legal and physical custody of the children before his incarceration. Mother reported father had 30 days to surrender to begin his prison sentence and that "[father] had a lot of things to get done" "so when it came to the kids he left it to the end." There were no reports of neglect until after father was incarcerated. While in prison, father was also unwilling to meaningfully engage with DCFS despite the agency's multiple attempts to speak with him. The one occasion father talked with DCFS, the social worker reported father was "defensive and not willing to provide any information regarding his children nor about [paternal grandmother's] involvement."
At the time of the adjudication hearing, father did not provide a plan as to how he could protect the children from mother while incarcerated, nor did he explain how the risk of physical harm could be prevented going forward. (In re James C. (2002) 104 Cal.App.4th 470, 483 [substantial evidence supported jurisdictional finding against father, recognizing "[b]ecause the father was incarcerated, he was not able to adequately protect the children from the deplorable home conditions. Being incarcerated, the father was unable to supervise the children"].)
Father also argues "the mere fact of a parent's incarceration is not sufficient evidence to provide a basis for a juvenile court's assertion of jurisdiction." Here, count b-3 was not based on the "mere fact" of father's incarceration.
We conclude count b-3 was supported by substantial evidence.
B. Removal
Father contends the removal order was not supported by substantial evidence. Again, we disagree.
1. Forfeiture
DCFS argues father's challenge to the removal order should be dismissed because father failed to argue for custody of the children at the disposition hearing.
Generally, issues not raised in the trial court cannot be raised on appeal. "Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 [collecting cases].) "As some of these courts have noted, any other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (Id. at p. 1339.)
But, "'[t]he contention that a judgment is not supported by substantial evidence . . . is an obvious exception" to the forfeiture rule. (In re Javier G. (2006) 137 Cal.App.4th 453, 464; see also In re R.V. (2012) 208 Cal.App.4th 837, 848 [no forfeiture of claim challenging the court's dispositional order on the ground of insufficient evidence]; In re Brian P. (2002) 99 Cal.App.4th 616, 623 ["When the merits are contested, a parent is not required to object to the social service agency's failure to carry its burden of proof'].) Accordingly, father did not forfeit his right to appeal the removal order.
2. Governing Principles
Section 361, subdivision (c)(1) provides in pertinent part: "A dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence . . . . There is or 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."
A removal order on these grounds "'is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] "The parent need not be dangerous, and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances.'" (In re A.S. (2011) 202 Cal.App.4th 237, 247, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 (O.B.).)
"[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (O.B., supra, 9 Cal.5th at pp. 995-996; see also In re V.L. (2020) 54 Cal.App.5th 147, 154-155.)
3. Removal Order
The facts supporting jurisdiction also support removal of the children from father's custody. As discussed, father failed to make an appropriate plan for the children's care when he was preparing for his prison sentence. Despite father's knowledge that the court orders prohibited mother from unsupervised visits with the children, he permitted them to be put in her care. He also failed to inform the grandmothers, whom he contends were supposed to care for the children, of the court orders prohibiting mother from being with the children unsupervised. He did this despite mother's substance abuse history leading to those orders and her failure to reunify with the children.
Contrary to the evidence, father continued to deny that he allowed the children to be placed in mother's care and failed to engage with DCFS to formulate an alternate plan for his children's care while he was incarcerated. (In re A.F. (2016) 3 Cal.App.5th 283, 293 ["'[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision'"].) On this record, a reasonable fact finder could have found it highly probable that there were no reasonable means to protect the children's physical or emotional health other than by removal from father's custody. (§ 361, subd. (c)(1); O.B., supra, 9 Cal.5th at pp. 995996 .)
C. Reunification Services
1. Governing Principles
"The purpose of providing reunification services is to 'eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible.' [Citation.] It is also the legislative intent, 'that the dependency process proceed with deliberate speed and without undue delay.' [Citation.] 'Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.]'" (In re I.A. (2019) 40 Cal.App.5th 19, 23.)
The juvenile court must order reunification services to an incarcerated parent unless the court finds "by clear and convincing evidence, those services would be detrimental to the child." (§ 361.5, subd. (e)(1).) The statute enumerates the various factors a court must consider when deciding whether services would be detrimental: "the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered . . ., the likelihood of the parent's discharge from incarceration, institutionalization, or detention within the reunification time limitations described in subdivision (a), and any other appropriate factors." (§ 361.5, subd. (e)(1).)
An order denying reunification services is subject to substantial evidence review. (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121; In re I.W. (2009) 180 Cal.App.4th 1517, 1527, disapproved on other grounds by O.B., supra, 9 Cal.5th at p. 1004, fn. 4, and p. 1010, fn. 7 [when reviewing for substantial evidence, "'the appellate court ordinarily looks only at the evidence supporting the successful party and disregards the contrary showing.' [Citation.] All conflicts, therefore, must be resolved in favor of the respondent"'"]; O.B., supra, 9 Cal.5th at pp. 995-996 ["[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true"].)
Statutory sections authorizing denial of reunification services are commonly referred to as "bypass provisions." (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.)
Father contends the court erred in denying him reunification services. The court's bypass order specified it was based on section 361.5, subdivision (e). At the disposition hearing, the court noted three of the enumerated factors as its basis for bypassing father for services: the length of father's six-year prison sentence (release date in May 2026), the maximum reunification period permitted by statute, and the children's ages. We also infer the court considered the degree of parent-child bonding because father's counsel raised that factor at the disposition hearing. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260 [reviewing court "will infer a necessary finding provided the implicit finding is supported by substantial evidence"].)
At the time of the disposition hearing, father had four out of six years left on his prison sentence. The evidence shows father failed to make an appropriate plan for the care of his children, both before his prison sentence started and through the time of the disposition hearing. While incarcerated, father was unable or unwilling to engage with DCFS in connection with this case, despite DCFS' efforts to obtain father's statements.
The court ordered reunification services for father after each hearing. There is no evidence father availed himself of any services. DCFS' Detention Report listed parenting classes and drug abuse treatment classes as measures to reunify father with the children. Father's case manager in prison informed DCFS that father had failed to enroll in substance abuse classes. The case manager also reported father was waiting for drug education classes which would not be available for "a couple of years." In arguing against a bypass order, counsel maintained father had a close bond with the children. There is no evidence in the record to support this claim as father has been incarcerated for most of the children's lives.
Father contends the court erred when it failed to "consider the mandatory detriment question" pursuant to section 361.5, subdivision (e)(1). The court specified in its order it was denying father reunification services based on section 361.5, subdivision (e), which requires a finding of detriment by clear and convincing evidence. At the disposition hearing, the court considered four of the statutory factors: the length of father's sentence, the statutory time limits for reunification, the children's ages, and the degree of bonding between father and the children. (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18 ["Section 361.5 subdivision (e)(1) does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not"].)
We conclude a reasonable fact finder could have found it highly probable that ordering reunification services to father would have been detrimental to the children. (O.B., supra, 9 Cal.5th at pp. 995-996.)
DISPOSITION
The juvenile court's jurisdictional findings and dispositional orders are affirmed.
WE CONCUR: CURREY, P. J., MORI, J.