In re Rosemary D. CA2/5 ( 2015 )

Filed 7/14/15 In re Rosemary D. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re Rosemary D., a Person Coming Under B259831
the Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK56302)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
Thomas D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of the County of Los Angeles, Julie F.
Blackshaw, Judge. Dismissed in part and affirmed in part.
Jarrette & Walmsley and Robert R. Walmsley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
_______________________
The dependency court found 13-year-old Rosemary D. to be a minor described by
Welfare and Institutions Code section 300, subdivision (b),1 based on two separate
counts. The first count alleged that Rosemary suffers from emotional problems and
substance abuse, and that her father’s failure to take her to scheduled psychiatric
appointments and drug dependency counseling constituted medical neglect, placing her at
risk of harm. The second count alleged father placed Rosemary at risk of harm by taking
her to relatives’ homes where father knew or should have known the residents possessed,
used, and were under the influence of, marijuana. Father appeals the court’s order
sustaining the second count only. He also challenges the dispositional order removing
Rosemary from parental custody.
Father’s appeal of a single jurisdictional finding is not justiciable, because even if
we conclude the court erred in sustaining the second count, jurisdiction will still exist
based on the remaining count. We affirm the court’s dispositional order, because it is
supported by substantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Rosemary was born in 2001, and the Los Angeles County Department of Children
and Family Services (Department) first became involved with Rosemary’s family in
2004, when the Department filed a petition based on mother’s mental illness and her
inability to care for Rosemary.2 The prior dependency case was resolved in 2006, with
an exit order granting father sole legal and physical custody of Rosemary. Father has an
extensive criminal history, with convictions for misdemeanor and felony offenses such as
1All statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2 Mother did not appear in the current proceedings before the dependency court,
nor is she a party to the current appeal.
2
burglary, possession of narcotics for sale, and firearm possession by a felon, but all
convictions predate Rosemary’s birth.
The Department received a large number of additional referrals expressing
concerns about sexualized behavior by Rosemary, as well as Rosemary being the victim
of physical abuse and neglect, including exposure to drug and alcohol use, by father and a
woman referred to as Rosemary’s stepmother.3 Each referral was closed as inconclusive
or unsubstantiated. The referrals from January, March, and April 2014, express
increasing concern with Rosemary’s behavior and her mental and emotional status,
noting that father had failed to take Rosemary to two scheduled appointments with a
psychiatrist in February and March 2014, as well as continued exposure to drug use.
Rosemary reported she started smoking marijuana when she was seven years old.
Her stepmother threatened to kill her if she did not smoke. Rosemary said she smoked
every night she stayed with her stepmother, and that her friends at school now just give
her marijuana when she asks for it. Rosemary was caught smoking marijuana at school
twice and having it in her possession three times. In February 2014, Rosemary was sent
to the office after a pill fell out of her pocket and she refused to identify it. After several
acts of defiance, she used a pencil to stab a school staff member in the stomach. She was
arrested and charged with three felony counts of assault and battery.
Rosemary has lived off and on with distant maternal cousins who she refers to as
her “grandma” (Lillie J.) and “aunt” (Jan R.). Until March 2014, Rosemary lived with
grandma Lillie and aunt Jan during the week, and stayed with her father on weekends.
Lillie and Jan both complained to the Department that father has been uncooperative with
ensuring Rosemary’s medical needs are met, in part because when they would ask him to
sign medical consent forms, he would not. In March 2014, Rosemary’s behavior became
too much for Lillie and Jan to handle, and she began living with her father. Rosemary
was attending a continuation school, where the principal has said father does not want
3 It appears that the woman is no longer Rosemary’s stepmother, but father now
has a girlfriend.
3
anything to do with Rosemary and does not want to be her father. Father would
sometimes lose patience with Rosemary and refuse to pick her up from school until Lillie
or Jan threatened to call the police or the Department.
The psychiatrist who has seen Rosemary since September 2012 reported that
Rosemary was doing well when she was in Lillie and Jan’s care, but when the
psychiatrist first met father in November 2013, father was unable to provide basic
information about Rosemary, such as who took her to school. Father did not bring
Rosemary to scheduled psychiatric appointments on March 3, 2014, and April 28, 2014,
and told the psychiatrist on March 24, 2014, that Rosemary had been “kicked out” of her
grandmother’s home because of her behavior. He also told the psychiatrist Rosemary
was stealing his pornography and condoms and he wanted to know how to get her into a
group home so she would not be on the streets. The psychiatrist felt that father lacked the
ability to parent, and Rosemary did better while in Lillie and Jan’s care. Rosemary also
missed a few weeks of chemical dependency counseling during the spring of 2014.
Rosemary missed two court dates in April 2014 for the juvenile delinquency case
arising from the school stabbing and felony charges. A bench warrant was issued for her
arrest after she failed to appear on April 21, 2014.
On June 14, 2014, the Department filed a petition seeking to have Rosemary
declared a minor described by section 300, subdivision (b), and the court issued an order
authorizing her detention from father’s home, but granted father limited unmonitored
visitation. Rosemary was initially placed with Lillie, but was later moved to a group
home after Lillie had to call the police on several occasions because of Rosemary’s
aggressive behavior. Rosemary was refusing to take her medications or go to school, and
she was seen playing with fire and trying to smoke coffee and oregano leaves. The
Department noted that it was not possible to place Rosemary in a foster or lower level
group home because she had been charged with three felony counts in connection with
the school stabbing.
At the jurisdictional hearing on October 1, 2014, the court received the
Department’s reports into evidence and heard argument from all attorneys. It then
4
sustained counts b-1 and b-2 against father, finding his inability to provide regular care
and supervision to Rosemary placed her at risk of physical harm and damage.
The parties requested to continue the disposition hearing to conduct a team
decision-making meeting, but the court proceeded with disposition. It found by clear and
convincing evidence under section 361, subdivision (c), there would be a substantial risk
to Rosemary if she were returned to father, removed her from parental custody, and
granted father unmonitored visits and reunification services. Father objected to the case
plan, but made no objection to the removal order. Father filed a timely notice of appeal.
DISCUSSION
Jurisdictional Findings
Father challenges only the jurisdictional finding based on count b-2, which alleged
he took Rosemary to homes where he should have known she would have access to
marijuana. Because father concedes substantial evidence supports the court’s
jurisdictional findings based on count b-1, regarding his failure to take Rosemary to her
psychiatric appointments, we find his appeal of the remaining count to be nonjusticiable
and decline to exercise our discretion to address whether substantial evidence supports
the appealed count.
In order for a controversy to be justiciable, the Court of Appeal must be able to
grant effective relief, in other words an order or remedy that will have a practical,
tangible impact on the legal status of the parties to the appeal. (In re I.A. (2011) 201
Cal.App.4th 1484, 1490.) Father concedes that jurisdiction exists based on count b-1,
thereby relieving this court of any obligation to consider whether the other count is
supported by the evidence, unless he can show what practical tangible impact such
review will have. “‘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
5
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.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.)
In In re Drake M. (2012) 211 Cal.App.4th 754, 762, the court explained that it is
appropriate to reach the merits of an appealed jurisdictional finding when the finding
meets one of several criteria, including whether it “serves as the basis for dispositional
orders that are also challenged on appeal.” Here, father argues that without the findings
based on count b-2, “it does not reasonably follow that removal from [f]ather’s custody
was a sustainable disposition.” Because we find substantial evidence supports the court’s
removal order regardless of whether there was evidence to support the court’s
jurisdictional finding on count b-2, we need not review that single jurisdictional finding.
Removal Order
Father contends there was insufficient evidence to support the dependency court’s
order removing Rosemary from his custody under section 361, subdivision (c)(1). We
conclude there was no error.
As an initial matter, we disagree with the Department’s contention that father’s
failure to object to the court’s removal order forfeited his right to raise the issue on
appeal. A claim that the evidence is insufficient to support a dispositional order is not
forfeited even if not raised in the dependency court. (In re R.V., Jr. (2012) 208
Cal.App.4th 837, 848-849.)
We review a dispositional order removing a child from parental custody for
substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574.) In other words,
“we look to see if substantial evidence, contradicted or uncontradicted, supports [it].
[Citation.] 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 . . . .” (In re Heather A.
6
(1996) 52 Cal.App.4th 183, 193.) Issues of fact and the credibility of witnesses are
questions for the trial court. (In re Carmaleta B. (1978) 21 Cal.3d 482, 495.) “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. [Citations.]” (In re Matthew S.
(1988) 201 Cal.App.3d 315, 321.) Thus, the pertinent inquiry is whether substantial
evidence supports the finding, not whether a contrary finding might have been made. (In
re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Under section 361, subdivision (c)(1), a dependent child may not be removed from
a parent unless the dependency court finds by clear and convincing evidence “[t]here 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.” (§ 361, subd.
(c)(1).) “‘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. [Citation.]” (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
We hold that the record contains substantial evidence that Rosemary could not
safely remain in father’s custody. Multiple sources described father as either incapable or
uncooperative. His communications with Rosemary’s maternal relatives, her school, and
the Department demonstrate either an inability or an unwillingness to take steps to protect
his daughter’s welfare. When the Department was receiving multiple referrals regarding
Rosemary in the spring of 2014, father was uncooperative, stating he did not have time to
talk to the social worker for two and a half weeks, and watching television during a
scheduled meeting with the social worker. Father also called Rosemary a liar and said he
did not want her on medication because it will not change the fact that she lies. While the
record does not make it clear why Rosemary failed to appear in court to answer felony
charges, it would be reasonable for the court to infer that father is neglecting his duties as
7
a parent by permitting such a lapse to occur not once, but twice. Taken together, all of
this information supports the court’s finding that removal was required.
Father points to In re James T. (1987) 190 Cal.App.3d 58 and In re Jeanette S.
(1979) 94 Cal.App.3d 52, 60 to contend the court erred in removing Rosemary without
first considering what services could be provided to avoid the need for removal. Father
argues that if the Department had provided services such as respite care, transportation,
homemaking, family support service, and mental health treatment, it would not have been
necessary to remove Rosemary to protect her from potential harm. While there is no
evidence the Department formally offered such services to father, it is clear that father
was not engaged with the Department in trying to resolve the issues affecting his
daughter, and so we reject father’s argument.
DISPOSITION
The portion of father’s appeal challenging the court’s jurisdictional finding is
dismissed, and the court’s dispositional order is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
8