Opinion
E068927
10-12-2018
In re A.B. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. A.B., Defendant and Appellant.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel and Michael A. Markel, Principal Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J271914 & 15) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Dismissed. Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel and Michael A. Markel, Principal Assistant County Counsel, for Plaintiff and Respondent.
L.G., the stepdaughter of father A.B., reported being molested by A.B., resulting in the filing of a dependency petition by the San Bernardino County Children and Family Services (CFS). The juvenile court made a declaration of dependency under Welfare and Institutions Code, section 300, subdivisions (b), (d), and (j), as to four children: L.G. and her sister, S.G., from mother's prior marriage, and A.B. and D.B., from mother's relationship with father A.B. As for A.B. and D.B., the juvenile court removed them from father's custody, placed them in the custody of mother, and denied father reunification services. Father appealed.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
On appeal, father argues there is insufficient evidence to support the finding of jurisdiction under section 300, subdivisions (b), (d), and (j), and insufficient evidence to support the removal of the children from his custody, as well as the denial of reunification services. We dismiss the appeal as moot.
BACKGROUND
Father, A.B., has two children with mother, Al.B., and D.B. Mother has two older children from a prior marriage, L.G. and S.G. On May 9, 2017, CFS received a referral and investigated allegations of ongoing sexual abuse of L.G., by her stepfather, A.B., commencing around September 2015. L.G. indicated the sexual abuse occurred while mother was at work and took place in the parents' bedroom. The first incident occurred while A.B. and L.G. were lying on the bed, A.B. put his arm around her, placed his hand on her hip, and began rubbing her vagina with his hand, under her clothes. Then, A.B. removed her pants and underwear, turned her over onto her stomach with her bottom in the air, and had sexual intercourse with her.
A second incident occurred when A.B. called her into the room, asked her for a hug, and then dragged her onto the bed where he began "cuddling" her. Then, A.B. removed her clothes, turned her so that her bottom faced his groin, and again had sexual intercourse with her. The most recent incident occurred in February or March 2017. On May 5, 2017, L.G. disclosed to a friend that she had been raped by her stepfather. The friend told her own father, and the friend's father reported the abuse to the police. Father was arrested.
At the police station, A.B. acknowledged he was left alone in the bedroom with L.G. after the mother went to work but stated that L.G. was the one who cuddled against him with her back and bottom facing him, and that he pushed her away. He also told investigating officers he had an alcohol problem, and that he drinks a lot, to the point where he has had drunken sex with his wife that he did not remember until mother mentioned it to him the next day. A.B. did not believe this could have happened with L.G., but he admitted he sometimes got so drunk he did not know what he did. Father agreed initially to take a polygraph, but he was intoxicated at the time of the interview so it could not be completed.
A dependency petition was filed as to father's biological children on July 18, 2017, alleging the children came within Welfare and Institutions Code section 300, subdivisions (b), (d), and (j). At the detention hearing, the children were maintained in mother's custody on condition father did not reside in the home or have contact with the children outside CFS supervision but detained them from father.
A petition was also filed respecting the children from mother's prior relationship, but they are not part of this appeal and will be mentioned only to provide context.
CFS submitted a report in connection with the jurisdiction hearing, recommending that the two older children from mother's prior relationship be placed with their father with a Family Law custody order. As to Al.B. and D.B., CFS recommended true findings, with custody of the children retained by mother and removal of custody from father. CFS was concerned that mother was in denial of the sexual abuse of the older daughter, which might affect her ability to protect the younger children. CFS believed father had not been completely honest about either the sexual abuse incident involving his stepdaughter, or about his substance abuse problem. CFS recommended that reunification services for father be denied pursuant to section 361.5, subdivision (b)(6).
On August 16, 2017, the parties agreed to a resolution of the petition. The reports, along with an Additional Information to the Court report, regarding father's positive drug test for marijuana, were admitted into evidence without objection. Father, through counsel, objected to the allegations against him and denied alcohol abuse, and denied any sexual abuse. However, father did not testify, object to the reports or present any evidence.
The court declared the children dependents of the court, finding that Al.B. and D.B. came within subdivisions (b) and (j) of section 300. The court dismissed the allegation under section 300, subdivision (d) (sexual abuse of sibling placing minors at risk), and one of the allegations under section 300, subdivision (j) (minor's sibling suffered emotional damage because mother referred to the sexually abused child as a liar), but made true findings as to the remainder of the allegations. The court removed custody from father but maintained the children with mother. The court denied reunification services for father, pursuant to section 361.5, subdivision (b)(6). Father appealed.
DISCUSSION
On appeal, father challenges the sufficiency of the evidence to support the true findings on the petition that were sustained, as well as the dispositional findings and denial of reunification services. In the meantime, we have learned that the dependency has been dismissed with exit orders to Family Court awarding custody to the mother. The appeal is moot.
We grant CFS's request that we take judicial notice of the juvenile court's order of dismissal dated February 16, 2018.
The general rule is that "'"an appeal presenting only abstract or academic questions is subject to dismissal as moot." [Citation.]' [Citation.]" (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547.) However, a judgment dismissing the dependency action "is not moot if the purported error is of such magnitude as to infect the outcome of [subsequent proceedings] or where the alleged defect undermines the juvenile court's initial jurisdictional finding." (In re Kristin B. (1986) 187 Cal.App.3d 596, 605.) We may also decline dismissal where the jurisdictional findings could affect father in the future (In re J.K. (2009) 174 Cal.App.4th 1426, 1432), or where review is necessary because the issue rendered moot by subsequent events is of continuing public importance and is a question capable of repetition, yet evading review. (In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.)
"We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404; In re Kristin B. (1986) 187 Cal.App.3d 596, 605, fn. omitted.)
Here, even if we were to decide the merits of the appeal, there is no relief available to father. His appeal challenges the sufficiency of the evidence, particularly hearsay evidence contained in the reports, to support the true findings as well as the dispositional order denying him reunification services. Unfortunately, he did not object to the admission of the social worker's reports into evidence. Only "'[i]f any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study' may the specific hearsay evidence 'be [in]sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based . . . .' [Citation.]" (In re E.B. (2010) 184 Cal.App.4th 568, 577.)
Once admitted into evidence, a social worker's report constitutes competent evidence on which the juvenile court can base a jurisdictional finding. (In re Lucero L. (2000) 22 Cal.4th 1227, 1237; In re Malinda S. (1990) 51 Cal.3d 368, 382 [now superseded by statute].) Where the hearsay contained in the report is not objected to, the juvenile court's reliance on the report was proper. (In re E.B., supra, 184 Cal.App.4th at p. 577.)
Additionally, the allegations of substance abuse were based on father's own admissions that he abused alcohol and used medical marijuana. The fact he drank to the point of not being able to recall having sex with his wife the next day is more than sufficient to support the juvenile court's true findings under section 300, subdivision (b).
Further, we do not need to reach father's complaints that the court erroneously established jurisdiction based on uncorroborated hearsay statements of L.G. because he did not preserve such a claim for review by making a timely objection. To the contrary, the social worker's reports were admitted without any objection and constituted competent evidence on which to make jurisdictional findings. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968.)
Nor do we need to consider whether the court must find special indicia of reliability before relying on the hearsay statements of L.G. Father's reliance on In re Lucero L. and In re Cindy L. (1997) 17 Cal.4th 15, are misplaced: those cases addressed the admissibility of statements attributed to children who were deemed "truth-incompetent" because of their tender years. L.G.'s statements were not subject to such scrutiny. Because the true findings were supported by substantial evidence, the decision to remove custody from father was justified. (§ 361, subd. (c)(1), (4).)
The last issue raised by father addresses the denial of reunification services. Here, we note that mother was awarded full custody. "Family reunification services shall only be provided when a child has been placed in out-of-home care, or is in the care of a previously noncustodial parent under the supervision of the juvenile court." (In re Pedro Z. (2010) 190 Cal.App.4th 12, 20; § 16507, subd. (b).) "Under section 361.2, '[t]he decision whether to provide services and to which parent is discretionary to the court because the child is not out of the home, but in placement with a parent.' [Citation.]" (In re Pedro Z., supra, at p. 21.)
Section 361.5 did not intend to make the provision of reunification services mandatory under circumstances such as this, where the provision of services is explicitly made discretionary by section 361.2, subdivision (b)(3). (In re Erika W. (1994) 28 Cal.App.4th 470, 475-476.) Thus, when a child is placed with a non-offending parent, the court is not required to order reunification services for the other parent. (In re Jeanette R. (1989) 212 Cal.App.3d 1338, 1341-1342.)
It is of little moment that the court order stated that services were denied based on section 361.5, subdivision (b)(6). "'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion." [Citation.] "It is judicial action and not judicial reasoning which is the subject of review . . . .'" [Citation.]" (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.) So even if the provisions of section 361.5 did not apply, services could be denied on the ground mother was granted custody.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. RAPHAEL
J.