Opinion
B325779
09-26-2023
In re Y.K. et al., Persons Coming Under the Juvenile Court Law. v. Z.L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 22CCJP03145 Mary E. Kelly, Judge. Affirmed in part, dismissed in part.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
WEINGART, J.
Z.L. (Father) appeals from orders made at an October 3, 2022 hearing, where the juvenile court assumed jurisdiction over his two children, removed them from his care and that of their mother I.N. (Mother), and ordered Father to have supervised visitation. The factual basis for these orders centered in large part on an illegal marijuana farm operating at the family residence, which was discovered when law enforcement executed a search warrant there.
While Father's appeal was pending, on April 3, 2023, the juvenile court held a review hearing. It found Father and Mother had made substantial progress with respect to their case plans, terminated the suitable placement orders, and ordered the children returned to the parents' custody. Approximately two weeks later, authorities discovered another illegal marijuana grow operation in the same vicinity as the prior one, leading to Father's arrest. The juvenile court later sustained a Welfare and Institutions Code section 387 petition on June 12, 2023, and ordered the children removed from parental custody.
All unspecified statutory references are to the Welfare and Institutions Code.
Father argues we should reverse the initial jurisdiction finding and removal order because substantial evidence does not support them and lift the supervised visitation order as an abuse of discretion. The Los Angeles County Department of Children and Family Services (DCFS) responds that we should dismiss Father's appeal as moot given the court's April 3, 2023 order returning the children to Father's custody; it further argues that if we do not dismiss the appeal as moot we should affirm the court's orders.
While we find Father's appeal is moot, we exercise our discretion to reach the merits of his challenges to the jurisdiction finding and removal order given the on-going dependency proceedings. Finding substantial evidence supports both, we affirm them. We decline to address Father's moot challenge to the supervised visitation order.
FACTUAL AND PROCEDURAL HISTORY
A. The Urban Marijuana Growing Operation
Father and Mother have two children, Y.N. (born 2013) and K.N. (born 2016). There is no dispute Mother, Y.N., and K.N. all resided at a residence in Rowland Heights, California. As described below, there was conflicting evidence about whether Father lived there too.
Mother has one child from another relationship who was also involved in the dependency proceeding. That minor is not the subject of this appeal and thus we do not discuss any factual or procedural history as to him.
On August 10, 2022, the Los Angeles County Sheriff's Department (LASD) executed a search warrant at the family home. Deputies discovered a large marijuana growing operation in a second building at the back of the property, and arrested Mother. One deputy observed an unidentified male fleeing as law enforcement arrived. Father fit the description of the person seen fleeing, but so did others and the deputy could not be certain it was Father. Mother denied knowing the fleeing man's name, but acknowledged he was a worker at the grow operation.
The marijuana was of high quality and likely valued at around $50,000. The grow house appeared to have been operating for several years based on the high electricity bill. According to deputies, the grow house was unlocked and the children could access it; it also appeared to pose a fire hazard due to unprofessional electrical work. The children's play area was next to the grow house; children's toys were also observed in the home's backyard between the residence and the grow house building. The smell of marijuana at the residence was palpable. Following the raid, authorities destroyed the marijuana plants.
An investigator from Southern California Edison who conducted a later walkthrough of the grow house stated that he did not perceive a fire hazard.
Mother and the two children lived at the residence. A tenant who lived in a rented room at the residence and Y.N. both said Father resided at the family home. Y.N. told a social worker that Father was always with Mother, and that "My dad should have gotten arrested too because he does the same as my mommy." Y.N. also said Father helped water the plants and "I think my dad taught my mommy." Y.N. refused to say what kind of plants, stating "I can't tell you. My mommy said I can't tell anyone." Y.N. did, however, describe the plants as green and sometimes spiky, and said they were in the backyard. Y.N. said she helped water on one occasion. When interviewed later, Y.N. denied knowing about the marijuana cultivation business before Mother was arrested and said by helping water she was referring to the trees in the front yard. During this later interview, while answering questions Y.N. was texting Mother saying she wanted to check with Mother.
K.N. stated Mother told him not to go into the backyard, but he played hide and seek there. K.N. saw a lot of plants in the back house. K.N. stated that Mother grew plants to earn money, that both she and Father had "working houses," and that Mother and Father both work in Father's working house. K.N. said he once visited Father's working house to get bad plants out, and he helped Father take one plant out. He also said Y.N. helped one time in Mother's working house. During K.N.'s interview, Y.N. came into the room and told K.N. not to say something dumb.
Mother and Father denied Father lived at the residence. Father claimed the children were not aware he lived elsewhere. K.N. refused to answer questions about where Father lived. Another of Mother's children not involved in this appeal denied knowing whether or not Father lived at the residence.
Mother did not think growing marijuana posed any risk to the children because it was a legal substance. Mother said Father's friend helped her set up the cultivation business, but Father did not want to get involved in it. Mother said she was not responsible for the children and did not have time for them; maternal grandmother was in charge of their care. According to Mother, the children never went in the backyard; she was unable to explain the children's toys being there. She claimed the gate to the grow house was locked. Mother denied that Y.N. helped water the marijuana plants.
Maternal grandmother said she knew of Mother's marijuana cultivation, but denied Father helped Mother with it. Maternal grandmother also said the children were not allowed in the backyard, and the grow house was locked.
Father had criminal arrests dating back to 2008 including theft of utility services and cultivation of multiple marijuana plants. Father said Mother had mentioned marijuana cultivation before, but Father did not want to know about it and was not involved in the business. He smelled marijuana when he came to the residence but ignored it because he did not live there, and it was Mother's private business. Father said he never went into the backyard and did not know there was marijuana growing there. Father agreed the back area was a fire hazard. Father stated that he knew the children lived in an unsafe environment with Mother, but he did not want to invade Mother's privacy. Regarding his prior arrest for marijuana cultivation, he claimed he was framed.
B. Court Proceedings Prior to Appeal
We recite only those portions of the procedural history relevant to this appeal.
On August 12, 2022, DCFS filed a petition alleging among other things that Y.N. and K.N. came within section 300, subdivision (b)(1). DCFS alleged that under subdivision (b), Mother and Father created a detrimental and dangerous home environment by operating a large marijuana growing operation at their home. The marijuana was accessible to the minors. In addition, the electrical wiring was deemed a fire hazard.
The petition also alleged the minors were dependents as described in section 300, subdivisions (c) and (j) because Mother and Father neglected Y.N.'s mental health. We do not address any factual, procedural, or legal issues related to Y.N.'s mental health as we find the assertion of jurisdiction and removal proper on other grounds. Where, as here, a section 300 petition alleges multiple grounds for jurisdiction, we can affirm the juvenile court's assertion of jurisdiction if substantial evidence supports any of the alleged grounds for jurisdiction and need not address the other grounds. (In re D.P. (2023) 14 Cal.5th 266, 283, 285.)
At a combined adjudication/disposition hearing on October 3, 2022, the petition was amended by interlineation and the court sustained the section 300, subdivision (b) count. The court explained it sustained this allegation because of the illicit activities and the parents teaching the children to lie about it. The court found that Y.N. and K.N. were coached and there was a detrimental home environment based on the illegal grow operation. The court noted that the children knew what was going on. The court found the parents lacked awareness and responsibility. Based on the scope of the operation, people could have been injured, and there could have been violent altercations.
The court also found there was a substantial danger to the physical health of the minors in the home of the parents and removed them from the parents' custody. The court found there was no reasonable means to protect the minors in the home. Both parents were given family reunification services, ordered to participate in individual counseling, and given monitored visitation.
Father filed a notice of appeal on December 2, 2022.
C. Procedural History After Appeal
We grant the request of DCFS to take judicial notice of these post-notice of appeal proceedings in the dependency court. In doing so, we take notice of the post-appeal proceedings in the juvenile court and not whether the facts adjudicated in those proceedings are true.
On April 3, 2023, the juvenile court held a review hearing and found Father and Mother had made substantial progress with respect to their case plans. The court terminated the suitable placement orders and ordered the children returned to Father's and Mother's custody. The court set a section 364 review hearing for October 2, 2023.
Approximately two weeks later (on April 19, 2023), LASD executed another search warrant at the same Rowland Heights address it searched on August 10, 2022, and found another extensive marijuana growing operation. Father and maternal grandmother were both arrested. DCFS thereafter obtained a removal order for the children on April 25, 2023. On April 27, 2023, DCFS filed a section 387 petition including supplemental allegations against Father and Mother. On June 12, 2023, the juvenile court sustained the section 387 petition in full and ordered the children removed from parental custody. The court granted the parents reunification services and calendared a review hearing for December 11, 2023.
DISCUSSION
A. Mootness
In light of the April 3, 2023 order returning the children to Father's custody, DCFS urges us to dismiss this appeal as moot. Father argues his appeal is not moot because unless the dependency court had jurisdiction it could not entertain the later filed section 387 petition, and because the court's initial removal order can affect the length of reunification services he may receive.
We agree that Father's appeal is in fact moot. With regard to jurisdiction, the findings based on Mother's actions are independently sufficient to create jurisdiction over the children and have not been challenged on appeal. (See In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 ["[t]he reviewing court may affirm . . . if the evidence supports the decision on any one of several grounds"]; see also In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [same].) With regard to orders for removal and supervised visitation, those orders were superseded when the children were subsequently returned to Father. A case is moot when it is"' "impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any effect[ive] relief."' [Citation.] For relief to be 'effective,' . . . the plaintiff must complain of an ongoing harm [that is] . . . redressable or capable of being rectified by the outcome the [appellant] seeks." (In re D.P., supra, 14 Cal.5th at p. 276 .) Although the court later removed the children again based on new information, that does not change the fact that the April 3, 2023 order rendered Father's challenge to the initial removal and visitation orders moot because the April 3, 2023 order rescinded those initial removal and visitation orders.
But mootness is not the end of our inquiry. Where a dependency appeal is moot, "[an appellate] court has discretion to decide the merits" of that moot appeal within certain limits. (In re D.P., supra, 14 Cal.5th at p. 283.) In D.P., our Supreme Court laid out a nonexhaustive list of factors for assessing "whether a court should exercise discretionary review of a moot appeal." (Id. at p. 286.) Specifically, the court noted that courts may consider (1) "whether the challenged jurisdictional finding 'could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings,' or' "could have other consequences for [the appellant], beyond jurisdiction"' "; (2) "whether the jurisdictional finding is based on particularly pernicious or stigmatizing conduct"; and (3) "why the appeal became moot." (Id. at pp. 285-286.) Given the on-going nature of the dependency proceeding, including subsequent allegations of Father's continued participation in illegal marijuana cultivation posing substantial risk to the children, the initial jurisdictional finding and removal order could potentially impact the current dependency proceedings (including potentially the length of reunification services). Indeed, the section 387 proceeding references the jurisdiction and removal orders at issue in this appeal. Exercising discretionary review to "ensur[e] the validity of findings on appeal" can be "particularly important" in such circumstances. (In re D.P., supra, 14 Cal.5th at p. 285.) We accordingly exercise our discretion to consider the merits of Father's challenges to the jurisdiction and removal orders. We decline to do so, however, as to Father's challenge to the now superseded monitored visitation order as it does not raise any independent concerns justifying review.
B. Substantial Evidence Supports the Jurisdictional and Removal Orders
1. Standard of Review
We review a juvenile court's jurisdictional and dispositional findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Under this standard," 'we determine if substantial evidence, contradicted or uncontradicted, supports [the findings]. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." '" (Ibid.) We will affirm a judgment if it is supported by substantial evidence "even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "However, '[s]ubstantial evidence is not synonymous with any evidence. [Citation.] To be substantial, the evidence must be of ponderable legal significance and must be reasonable in nature, credible, and of solid value.' [Citations.]" (In re Cole L. (2021) 70 Cal.App.5th 591, 602.)
Given that the dispositional finding must be supported by clear and convincing evidence, "when there is a substantial evidence challenge, the reviewing court must determine whether the record contains substantial evidence from which a reasonable trier of fact could find the existence of that fact to be highly probable." (In re V.L. (2020) 54 Cal.App.5th 147, 149; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996 ["when 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"].)
2. The Juvenile Court's Exercise of Jurisdiction
At the jurisdictional stage, the juvenile court must determine by a preponderance of the evidence if a child is described by section 300. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) As relevant here, subdivision (b)(1) of section 300 authorizes dependency jurisdiction where "[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 any of the following: [¶] (A) The failure or inability of the child's parent . . . to adequately supervise or protect the child. [¶] (B) The willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left." (§ 300, subd. (b)(1)(A), (B).)
Section 300 was amended effective January 1, 2023. (Stats. 2022, ch. 832, § 1.) The amendments are immaterial to the issues presented in this case, and we will refer to the current version of the statute. Current subdivisions (b)(1)(A)-(D) were formerly set forth in subdivision (b)(1) without separate designation.
Father does not dispute that operating a large illegal marijuana grow house on a building adjacent to the family residence posed a substantial risk of serious physical harm or illness to the children. He instead argues there was no substantial evidence the children remained at risk at the time of the jurisdiction hearing because after the police raid, the marijuana plants were destroyed, and the grow operation shut down.
"Although section 300 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. [Citations.] The court may consider past events in deciding whether a child presently needs the court's protection. [Citations.] A parent's' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' [Citations.]" (In re Cole L., supra, 70 Cal.App.5th at pp. 601-602.)
Father's lack of insight and acceptance of responsibility sufficiently supported the juvenile court's finding that substantial risk to the children would persist in the absence of assuming jurisdiction. There is substantial evidence, including statements from K.N. and Y.N., demonstrating Father was personally involved in the marijuana growing operation despite his claims to the contrary. There is also substantial evidence that he and Mother encouraged the children to lie about Father's involvement and falsely deny what was going on. Such false denials increase the risk of harm recurring. (See In re V.L., supra, 54 Cal.App.5th at p. 156; In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) Even if one was to assume Father was not directly involved in the grow house at Mother's residence, there is substantial evidence he knew about it and failed to take any action to protect the children. Indeed, under Father's own view, he actively took steps to stick his head in the sand about Mother's illegal drug business and the children's own involvement in helping it by watering and pulling plants. "One cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) Accordingly, the court did not err in finding the children presently needed juvenile court protection.
3. Substantial Evidence Supports the Removal Order
To remove a child from parental custody, the juvenile court must find by clear and convincing evidence that specified circumstances are present justifying such a disposition. (§ 361, subds. (c)(1) &(d).) The circumstances that can justify removal depend on whether the child was living with the parent at the time the dependency case was initiated. Subdivision (c) of section 361 applies when the child was living with the parent at that time, and it lists five circumstances that justify removal (§ 361, subd. (c)(1)-(5)); subdivision (c)(1) sets forth the only circumstance that potentially applies here: "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 without removing the minor from the minor's parent's . . . physical custody." (Id., subd. (c)(1).)
Subdivision (d) of section 361 applies when the child was not living with the parent at the time the dependency proceeding was filed, and it provides only one circumstance that justifies removal. Specifically, as applicable here, subdivision (d) of section 361 applies when the juvenile court finds "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." (Ibid.)
The court's removal order references both subdivisions (c) and (d) of section 361. The court did not make a factual finding about whether the children were residing with Father, and the evidence on that point was conflicting. However, we need not decide whether our review should focus on subdivision (c)(1) or (d) because the two subdivisions set forth essentially equivalent standards in the context of this case, as both are triggered when there "would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the" child were the child to live with the parent. (§ 361, subds. (c)(1) & (d).)
"Actual harm to a child is not necessary before a child can be removed." (In re V.L., supra, 54 Cal.App.5th at p. 154.) This is because the focus of the statute is on averting harm to the child. (In re D.B. (2018) 26 Cal.App.5th 320, 328; In re T.V. (2012) 217 Cal.App.4th 126, 135-136.) In determining whether a child may be safely maintained in a parent's physical custody, "the [juvenile] court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
Father essentially makes the same argument against removal that he makes in arguing the court lacked jurisdiction. He asserts he was willing to do what the juvenile court required, and that those safeguards were sufficient short of removal because the grow house was no longer in operation after the initial police raid. We reject these arguments for the same reasons explained above. The substantial evidence that supports the juvenile court's assumption of jurisdiction also supports the removal order. Father was not forthcoming about his own involvement; the juvenile court could reasonably have rejected Father's explanation for his prior arrest for marijuana cultivation as not credible, and inferred Father had a history of illegally cultivating marijuana despite police intervention. Such a reasonable inference indicated an ongoing substantial danger if the children remained in Father's care. Even if one assumes Father was not involved in the initial grow operation at the family residence, he turned a blind eye to the dangers facing the children in their home despite knowing of those dangers. Such denials and evasions of responsibility provide the necessary support for the court's determination that there was no reasonable means to protect the children if they remained in Father's custody.
DISPOSITION
The jurisdiction and removal orders are affirmed. We dismiss Father's challenge to the monitored visitation order of October 3, 2022 as moot.
We concur: ROTHSCHILD, P. J., BENDIX, J.