Opinion
B301338
10-20-2020
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. 19CCJP03450 APPEAL from an order of the Superior Court of Los Angeles County, Julie F. Blackshaw, Judge. Affirmed. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
The juvenile court exercised jurisdiction over the three children of R.P. (father) and Y.P. (mother) under Welfare and Institutions Code section 300, subdivisions (b) and (e). The court removed the children from both parents pursuant to section 361, subdivision (c), and ordered mother and father to participate in reunification services.
Mother is not a party to this appeal.
All further undesignated statutory references are to the Welfare and Institutions Code.
On appeal, father contends the jurisdictional findings pertaining to him, which were solely predicated on section 300, subdivision (b), are unsupported by substantial evidence. We disagree and affirm.
BACKGROUND
Father and mother are the parents of three children: S.P., L.P., and N.P. At the time the case was initiated in May 2019, S.P. was five years old, L.P. was three years old, and N.P. was one year old. The children were residing with mother at their maternal aunt's home. Father was homeless; he was living out of his car in Tulare County, California.
The family came to the attention of the Department of Children and Family Services (Department) on May 25, 2019, when it received a referral alleging N.P. had been subjected to physical abuse by an unidentified perpetrator and general neglect by mother. The reporting party stated that on May 25, 2019, N.P. was admitted to the hospital due to swelling in her left leg. X-rays of N.P.'s leg revealed the swelling was due to "'an old fracture of the [t]ibia.'" The reporting party related mother and her boyfriend stated N.P. may have fractured her leg on April 22, 2019, when she fell out of her playpen and hit her head and leg; at the time, mother was not home, and her boyfriend was watching N.P. According to the reporting party, N.P.'s treating physician did not believe her injuries coincided with the account provided by mother and her boyfriend.
While investigating the referral, a Department social worker spoke with a child abuse specialist about the results of an MRI performed on N.P. The specialist stated N.P. had two fractures on her left leg and one fracture on her right leg. With respect to N.P.'s left leg, the specialist reported "there [wa]s an old fracture . . . that did not heal completely before trauma was caused to the same area causing the second fracture." In the specialist's opinion, non-accidental trauma could not be ruled out as a potential cause of N.P.'s fractures.
On May 29, 2019, the Department applied for a warrant authorizing the children's detention, which was granted. That same day, the children were detained and placed in foster care.
Two days later, the Department filed a petition on behalf of all three children, alleging the children fell within the purview of section 300, subdivisions (a), (b)(1), (e), and (j). With respect to mother, the petition alleged the children were at risk of serious physical harm because N.P. suffered "from a detrimental and endangering condition" consisting of fractures to both legs, which would not have occurred but for "deliberate, unreasonable, and neglectful acts by . . . mother who had care, custody and control of the child[ren]" (counts a-1, b-1, e-1, and j-1). With respect to father, the petition alleged the children were at risk of serious physical harm because he is "unable to provide the children with ongoing care and supervision" (count b-2). The petition was amended twice - once July 5, 2019, and again on August 15, 2019 - to clarify the allegations in support of counts a-1, b-1, e-1, and j-1 regarding the specific nature and number of N.P.'s fractures. Count b-2 remained unchanged.
On August 15, 2019, father informed the Department he had moved to Texas.
At a hearing held on August 29, 2019, the juvenile court adjudicated the petition to the extent it pertained to mother. Father was not present. Noting the Department and mother had arrived at a partial settlement of the petition as amended, the juvenile court sustained count e-1 and dismissed counts a-1, b-1, and j-1. At father's counsel's request, the court held count b-2 in abeyance and continued its adjudication to a later date so father could be present. While the court observed it could not proceed to disposition given the petition's incomplete adjudication, it was still able to order reunification services for mother per the settlement agreement between her and the Department.
The court adjudicated count b-2 at a hearing held on September 19, 2019. Father again was not present; his counsel did not know the reason for his absence. At the outset of the hearing, the court rejected a request by father's counsel to continue the hearing so father could be present. The court found good cause did not exist for a continuance, as father's counsel acknowledged father had received proper notice of the hearing. Subsequently, the court sustained count b-2. Proceeding to disposition, the court removed the children from mother and father, and ordered reunification services for both parents. Father timely appealed.
DISCUSSION
I. Whether Father's Jurisdictional Challenge May Be Addressed on the Merits
On appeal, father challenges the juvenile court's jurisdictional findings pertaining to him. The Department, however, argues we need not consider father's contention on the merits for two reasons.
First, the Department argues we lack jurisdiction to review father's jurisdictional challenge because his notice of appeal "evinced a clear intent to solely appeal from the court's dispositional findings and orders[.]" Specifically, the Department emphasizes father's notice of appeal only identified the court's dispositional orders as those to be appealed, and father did not check the box on the notice of appeal's second page to indicate he sought review of the dispositional orders "with review of the court's section 300" jurisdictional findings. We do not agree with the Department's argument.
"'[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.' [Citations.] A notice of appeal 'is sufficient if it identifies the particular judgment or order being appealed.' [Citation.]" (In re Joshua S. (2007) 41 Cal.4th 261, 272; see also Girard v. Monrovia City School District (1953) 121 Cal.App.2d 737, 739-740.)
Here, although the Department correctly observes father did not check the box indicating he sought to appeal the dispositional orders with review of the jurisdictional findings, and father's notice of appeal does not otherwise reference the jurisdictional findings, father did check a box indicating he wanted to appeal "[o]ther orders" entered at the September 19, 2019 hearing. Because jurisdiction and disposition with respect to father were both addressed at that hearing, we conclude it is "particularly appropriate" to liberally construe father's notice of appeal as encompassing both the jurisdictional and dispositional orders. (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017.) Further, the Department does not argue or otherwise suggest it was misled or prejudiced by father's omission of the jurisdictional orders from his notice of appeal. Consequently, we construe father's notice of appeal broadly to include the juvenile court's jurisdictional orders.
Next, the Department contends father's appeal is not justiciable, because whether or not count b-2 is supported by substantial evidence, we can affirm the jurisdictional orders based on the unchallenged jurisdictional findings pertaining to mother. Again, we disagree with the Department.
"When 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. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]" (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nevertheless, "we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding . . . could potentially impact the current or future dependency proceedings [Citations] . . . ." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) Consequently, where, as here, the outcome of the appeal will determine whether the parent is "offending" versus "non-offending," a finding with potentially far-reaching consequences in these and future dependency proceedings, we find it appropriate to exercise our discretion to consider the appeal on the merits. (Id. at p. 763; see also In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)
II. Whether the Juvenile Court's Jurisdictional Findings are Supported by Substantial Evidence
Pursuant to section 300, subdivision (b)(1), the juvenile court may exercise jurisdiction over a child if it finds "[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 the failure or inability of his or her parent or guardian to adequately supervise or protect the child[.]"
We review a juvenile court's jurisdictional orders for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 (Yolanda L.).) Under this standard, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders." (Ibid.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).)
"Substantial evidence must be of ponderable legal significance. It is not synonymous with 'any' evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value. [Citation.]" (Dakota H., supra, 132 Cal.App.4th at p. 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citations.]" (Ibid.) "' . . . "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." [Citation.]' [Citation.]" (Yolanda L., supra, 7 Cal.App.5th at p. 992.)
Father contends the court's jurisdictional findings are unsupported by substantial evidence for two reasons.
First, father argues the court erred in sustaining count b-2 because although mother negligently allowed N.P. to suffer physical abuse resulting in multiple fractures to both legs, the record reflects she ensured the children were properly nourished, clothed, and housed. Thus, father contends, the children were not at risk of harm due to his inability to provide for their care, as mother was able to meet their basic physical needs. In support of his argument, father likens this case to In re Andrew S. (2016) 2 Cal.App.5th 536 (Andrew S.). Andrew S., however, is distinguishable and does not apply here.
In Andrew S., the juvenile court exercised jurisdiction over Andrew S. and Kaley S. due to their: (1) mother's physical abuse; and (2) father's failure to provide the children with the necessities of life, including food, clothing, shelter, and medical treatment, while he was incarcerated. (Andrew S., supra, 2 Cal.App.5th at pp. 539-541.) The Court of Appeal reversed the jurisdictional finding pertaining to the father, which was predicated on section 300, subdivision (b)(1). (Id. at pp. 542, 548.) The court reasoned that while section 300, subdivision (b)(1) "establishes as a basis for dependency jurisdiction 'the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . ,' provided there is a substantial risk the child will suffer serious physical harm or illness as a result of that failure," that portion of the statute does not "justif[y] the juvenile court's assumption of jurisdiction over an otherwise well-cared-for child simply because an absent parent has not provided support. [Citations.]" (Andrew S., supra, 2 Cal.App.5th at p. 542.) Therefore, because there was no evidence demonstrating Andrew and Kailey lacked adequate food, shelter, or medical treatment while father was incarcerated, the Andrew S. court concluded the juvenile court's findings pertaining to father were unsupported by substantial evidence. (Id. at pp. 542-543.)
Here, in contrast with Andrew S., the jurisdictional findings pertaining to father were not predicated on the portion of section 300, subdivision (b)(1) that permits jurisdiction based on a parent's "willful or negligent failure . . . to provide the child with adequate food, clothing, shelter, or medical treatment[.]" (§ 300, subd. (b)(1).) Rather, the Department alleged - and the court found - the children should be adjudicated dependents of the court based on an entirely different part of the statute, which authorizes jurisdiction based on a parent's "failure or inability . . . to adequately supervise . . . the child[.]" (Ibid.) Consequently, the Andrew S. court's analysis is inapplicable in this case, and father's argument predicated on Andrew S. is unavailing.
Next, father contends the court erred in sustaining count b-2 because it exclusively relied on his "homeless status" in doing so, which had "apparently been remedied" as of the petition's adjudication. Father asserts "it is well established that poverty, including homelessness, in and of itself, is not enough to establish a basis for jurisdiction under section [300] subdivision (b)." Thus, father argues that because there is no evidence other than his purported "lack of a home" to support a finding that he is unable to provide the children with adequate care and supervision, the jurisdictional findings are unsupported by substantial evidence.
It is true that "poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction." (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212; see also § 300, subd. (b)(1) ["A child shall not be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family."].) Contrary to father's argument, however, the record does not demonstrate the court relied solely on his homeless status when it sustained count b-2. Rather, the record reflects that while the court briefly acknowledged father lived in his car at some point, it found father was unable to provide the children with adequate supervision and care based primarily on his willful and extensive absence from their lives. The record contains sufficient evidence to support this finding.
As noted above, when the case was initiated, the children did not reside with father; they lived with mother in their maternal aunt's home. When interviewed by the Department in connection with the detention proceedings in May 2019, father related he had not seen the children since January 2019. Upon learning of N.P.'s injuries and hospitalization, father still did not make any efforts to visit the children or provide them with any supervision, support, or care while he was residing in Tulare County, despite owning a car and acknowledging he could drive to Los Angeles to see the children. Following the children's detention and placement in foster care, father refused to participate in the Department's investigation further, even though the social worker expressed willingness to travel to Tulare County to meet with him there, and offered him the alternative of providing a statement over the phone. Moreover, although father spoke with his children on the phone periodically in the months between the detention and the adjudication hearings, father made no efforts to contact the Department, visit the children, or provide them any supervision, support, or care. Indeed, father moved to Texas and did not notify the Department until after the fact. Additionally, father did not appear at the hearing where the court adjudicated count b-2, and did not inform his counsel the reason for his absence.
On this record, the juvenile court could reasonably find father had deliberately chosen not to be involved in his young children's lives, even after learning of their dependency case and detention in foster care. Based on his purposeful absence from his children's lives, the court could appropriately conclude father was unable and unwilling to provide them with adequate supervision and care, and thereby placed them at substantial risk of harm. Accordingly, the jurisdictional findings pertaining to father are supported by substantial evidence.
DISPOSITION
The jurisdictional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: WILLHITE, Acting P.J. COLLINS, J.