In re Clyde V. CA2/7 ( 2021 )

Filed 9/20/21 In re Clyde V. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CLYDE V. et al., Persons B310577
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
20LJJP00827A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
CRISTIAN V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Robin R. Kesler, Juvenile Court Referee.
Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
______________
Cristian V., the presumed father of four-year-old Clyde V.
and nine-month-old Bonnie V., appeals the juvenile court’s
jurisdiction finding sustaining an allegation of ongoing substance
abuse and the court’s disposition orders requiring him to
participate in a drug and alcohol treatment program and a
domestic violence program. The children’s mother, Cristian’s
wife Jessica V., who used fentanyl during her pregnancy with
Bonnie, has not appealed the jurisdiction findings and disposition
orders removing the two children from their parents’ custody. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Past Child Welfare Issues
Both Cristian and Jessica have extensive child welfare
histories involving Clyde and children from prior relationships.
As pertinent to this appeal, Cristian’s son Justin V. was declared
a dependent child of the court in 2009 due to Cristian’s substance
abuse and domestic violence between Cristian and Justin’s
mother and paternal grandmother. When jurisdiction terminated
in 2010, Justin’s mother was awarded sole physical custody of the
child; and Cristian was restricted to monitored visitation.
2
In September 2018 Clyde was declared a dependent child of
the court due to Cristian’s and Jessica’s substance abuse.1 The
juvenile court found that Cristian had an eight-year history of
drug abuse and was at that time a current user of heroin and
prescription medication, including Xanax. The referral that
initiated this proceeding reported Cristian had been driving at
high speeds while under the influence of heroin and Xanax with
Clyde and Jessica in the car with him. This proceeding
terminated in September 2019 with a juvenile custody order
awarding Jessica sole physical and legal custody of Clyde.2
Cristian’s contact with Clyde was restricted to monitored
visitation.
2. Clyde’s Criminal History
Clyde’s criminal history includes convictions for inflicting
corporal injury on a spouse or cohabitant and child cruelty, as
well as a variety of drug charges. He was in prison in September
2019 when jurisdiction in Clyde’s prior dependency case
terminated.
1 Jessica’s two daughters (Clyde’s half-sisters) Angelin V.,
and Kimberly V., were also declared dependents of the court in
this dependency proceeding. The juvenile court found Jessica
had a history of illicit drug abuse and was a current user of
cocaine.
2 The juvenile court had terminated its jurisdiction over
Angelin and Kimberly a year earlier with a juvenile custody order
awarding their father sole physical and legal custody and
prohibiting Cristian from having any contact with the children.
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3. Initiation of the Current Dependency Proceedings
In December 2020 the Los Angeles County Department of
Children and Family Services (Department) received a report of
general neglect by Jessica following Bonnie’s birth. The referral
stated Jessica had a history of opioid abuse and had been
hospitalized with opioid withdrawal the prior month. Jessica had
admitted using painkillers that had not been prescribed for her.
The referral also indicated Cristian had to be escorted from the
hospital following an argument with Jessica.
In an interview with a Department social worker, Jessica
explained she had been in a car accident in February 2020 and
injured her back. A friend had given her the pain pills, which
Jessica said she thought were like Tylenol and would not be
harmful to take during the pregnancy.
On December 29, 2020 the Department filed a petition
pursuant to Welfare and Institutions Code section 300,
subdivisions (b) (failure to protect) and (j) (abuse of sibling),3
alleging Clyde and Bonnie were at substantial risk of serious
physical harm because of Jessica’s history of substance abuse and
her current abuse of fentanyl, which had not been prescribed for
her and which she had used during her pregnancy with Bonnie.
The petition further alleged that Clyde was a prior dependent of
the juvenile court due to Jessica’s substance abuse. In separate
counts pursuant to subdivisions (b) and (j) as to both Cristian and
Jessica, the petition alleged Cristian had a history of illicit drug
use including heroin and prescription medication that rendered
him incapable of providing regular care for the children; Clyde
and Justin were prior dependents of the court due to Cristian’s
3 Statutory references are to this code.
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substance abuse; Jessica failed to protect Clyde and Bonnie by
allowing Cristian to have unlimited access to them even though
Jessica knew of Cristian’s substance abuse; and Cristian and
Jessica had violated the juvenile court’s September 2019 custody
orders, which restricted Cristian to monitored visits with Clyde.
In its detention report prepared December 28, 2020, the
Department stated the assigned nurse at the hospital following
Bonnie’s birth indicated both Jessica and Bonnie had tested
negative for drugs following delivery and mother and child
appeared to be bonding well. The facility’s social worker
described the incident during which Cristian was ordered to leave
the hospital as “an altercation.”
In an interview on December 14, 2020 Jessica said Cristian
had been kicked out of the hospital because he had become upset
about her use of fentanyl. She insisted she had a healthy
relationship with Cristian and there was no history of domestic
violence. In an interview on December 22, 2020 Cristian claimed
he was unaware of Jessica’s drug use until recently. Asked about
his criminal history, Cristian acknowledged he had been
incarcerated for “child cruelty and a battering charge” and said
he had completed his sentence. He explained he had separated
from Jessica “because he knows he is the issue.”
In a last minute information for the court filed the day of
the detention hearing, the Department reported Cristian had
contacted the Department, asked for the reasons for the
detention and stated he would like the children released to his
care. The supervising children’s social worker explained the
Department’s concerns about Jessica’s substance abuse and a
report that Cristian was living with Jessica and the children in
the paternal grandmother’s home notwithstanding the court
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order restricting his access to Clyde. Cristian denied living with
the paternal grandmother but claimed not to know the address
where he was staying. In a subsequent conversation with the
social worker Cristian insisted he and Jessica were separated, he
had no plans to reconcile with her, and they do not communicate
with each other. He also stated the paternal grandmother
monitored his visits with Clyde in compliance with the court’s
order.
At the detention hearing on December 31, 2020 the court
found a prima facie case existed that Clyde and Bonnie were
persons described by section 300 and ordered the children
detained, vesting temporary custody with the Department.
Cristian requested a no-time-waiver jurisdiction hearing
pursuant to section 334.
4. The Jurisdiction and Disposition Hearing
In a jurisdiction and disposition report filed January 15,
2021 the Department summarized information contained in its
detention report and indicated neither Cristian nor Jessica had
responded to the Department’s requests for further interviews.
The children’s caregiver reported the children were adjusting
well. However, Cristian called Clyde multiple times every day.
When they spoke, Cristian would cry hysterically, which caused
the four-year-old to cry. Because of the frequency of Cristian’s
calls and his calling as late as 1:30 a.m., the caregiver blocked his
number.
The Department opined that Clyde and Bonnie were at
high risk for future abuse and neglect “[d]ue to both parents[’]
ongoing history of illicit substance use/abuse, ongoing and
unresolved domestic violence often times within the presence of
the minor children, and mother’s decision to continue to remain
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in a relationship with father Cristian.” The Department
recommended the children be declared dependents of the court
and remain in protective custody with family reunification
services ordered for Cristian and Jessica.
Both Jessica and Cristian testified at the combined
jurisdiction and disposition hearing on January 22, 2021. Jessica
testified she and Cristian married in June 2018 and he went to
jail on a domestic violence charge some time thereafter. In
inconsistent and confusing testimony, Jessica stated she had not
had any in-person contact with Cristian in 2020, did not
remember whether she had any in-person contact with him,
attempted to “plea the 5th” in response to questions about her
contact with Cristian in 2020 and admitted Cristian was the
father of Bonnie, which necessarily required some in-person
contact in the months prior to her birth. Jessica testified she
only used fentanyl for one week, contradicting her statement to
the social worker she had used it for approximately two months.
Cristian testified he was released from prison in March
2020 (approximately nine months before Bonnie’s birth) and had
never lived with Jessica. He said he attended a drug
rehabilitation program in Mexico for three months in 2012 or
2013 and had not used drugs since then. He also testified he had
participated in a domestic violence program in 2015 or 2016 and
completed a parenting program while incarcerated. He denied
any domestic violence with Jessica. He described the incident at
the hospital in November 2019 as a discussion and said he left
the facility voluntarily.
Counsel for Jessica and for Cristian asked the court to
dismiss the petition. The Department, joined by minors’ counsel,
asked the court to sustain the petition.
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5. The Court’s Findings and Disposition Order
The juvenile court sustained the petition as pleaded, found
Clyde and Bonnie were persons described by section 300,
declared each of them dependents of the court and ordered them
suitably placed under the supervision of the Department.4 The
court explained the basis for its findings: “Unfortunately, these
folks do have a long history with the dependency court going back
years. [Minors’ counsel] stated it best. Neither Mother nor
Father were candid with the court, and actually just lied to the
court. . . . As to Mother’s use, this was not a one-time use of
fentanyl for Mother. Mother in the detention report has
indicated she was using for at least two months. . . . If I was to
believe her testimony, she thought it was like a Tylenol, and I
don’t buy that, either. Neither were credible. Father was asked
to leave the hospital in November when Mom went there to detox
from the drug. . . . He was also asked to leave at the birth of the
child. . . . So there is ongoing domestic violence. . . . Father,
unfortunately, does have a very long criminal history of violence,
along with substance abuse. . . . Back as far as 2013 he had
corporal injury to a spouse, general criminality, a burglary in
2016, and inflicting corporal injury to a spouse, 2017. . . . I think
it’s 2017, child cruelty, possibly deaths or injury. That’s the
event of him driving at reckless speeds under the influence of
heroin and Xanax. He was convicted.” The court added the prior
dependency case involving Clyde had closed with custody
awarded to Jessica “because [the court] thought Father was going
to be in prison for a period of time up to five years.”
4 At the hearing Cristian’s counsel asked the court to release
the children to Cristian if it did not dismiss the petition. Cristian
8
The court ordered family reunification services for Jessica
and Cristian. As to Cristian, the court ordered a full drug and
alcohol program with aftercare, a 52-week domestic violence
program, anger management and individual counseling to
address anger and control issues. Visitation was to be monitored,
and Jessica was ordered not to be present during Cristian’s visits.
Cristian’s counsel asked the court to excuse Cristian from
participating in drug rehabilitation and the domestic violence
program if Cristian could verify his completion of similar
programs. The court denied the request, explaining, even if he
had completed those programs in the past, Cristian’s subsequent
convictions for drug-related offenses and domestic violence belied
their effectiveness.
Cristian filed a timely notice of appeal.
DISCUSSION
1. Cristian’s Challenge to the Jurisdiction Finding Is Not
Justiciable
Cristian does not challenge the juvenile court’s exercise of
jurisdiction over Clyde and Bonnie based on the sustained
allegations that Jessica had a history of substance abuse and was
a current abuser of fentanyl, which rendered her unable to
provide regular care for the children, endangered their health
and safety, and placed them at substantial risk of serious
physical harm within the meaning of section 300, subdivision (b).
Nor does he challenge the court’s decision to order the children
suitably placed. As a result, even if we were to strike the
jurisdiction finding as to Cristian, that decision would not affect
does not argue on appeal the court erred in ordering out-of-home
placements for Clyde and Bonnie.
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the juvenile court’s jurisdiction in this matter (In re I.A. (2011)
201 Cal.App.4th 1484, 1492 [jurisdiction finding involving one
parent is good against both; “‘“the minor is a dependent if the
actions of either parent bring [him or her] within one of the
statutory definitions of a dependent”’”]; see In re M.W. (2015)
238 Cal.App.4th 1444, 1452; In re Briana V. (2015)
236 Cal.App.4th 297, 310-311) or limit the court’s authority to
make all orders necessary to protect the children: The juvenile
court’s “broad discretion to determine what would best serve and
protect the child’s interest and to fashion a dispositional order in
accord with that discretion, permits the court to formulate
disposition orders to address parental deficiencies when
necessary to protect and promote the child’s welfare, even when
that parental conduct did not give rise to the dependency
proceedings.” (In re K.T. (2020) 49 Cal.App.5th 20, 25; accord,
In re Briana V., at p. 311 [“The problem that the juvenile court
seeks to address need not be described in the sustained
section 300 petition. [Citation.] In fact, there need not be a
jurisdictional finding as to the particular parent upon whom the
court imposes a dispositional order”]; In re I.A., at p. 1492 [“[a]
jurisdictional finding involving the conduct of a particular parent
is not necessary for the court to enter orders binding on that
parent, once dependency jurisdiction has been established”]; see
generally § 362, subd. (a) [the juvenile court “may make any and
all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child”].)
As Cristian correctly argues, in limited circumstances
reviewing courts have exercised their discretion to consider an
appeal challenging a jurisdiction finding despite the existence of
an independent and unchallenged ground for jurisdiction when
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the jurisdiction findings “serve[ ] as the basis for dispositional
orders that are also challenged on appeal,” “could be prejudicial
to the appellant or could impact the current or any future
dependency proceedings” or “could have consequences for the
appellant beyond jurisdiction.” (In re J.C. (2014) 233 Cal.App.4th
1, 4; see In re D.P. (2015) 237 Cal.App.4th 911, 917; In re
Drake M. (2012) 211 Cal.App.4th 754, 763.) This, however, is not
an appropriate case to exercise that discretion.
As discussed, in dependency proceedings involving Clyde in
2018 the juvenile court found Cristian had a significant history of
drug use and was a current abuser of heroin and prescription
medications. Cristian did not complete his case plan in that
proceeding, and jurisdiction was terminated with Jessica being
awarded sole physical and legal custody of Clyde with Cristian
restricted to monitored visitation. In light of the findings and
orders in that case, any professed concern by Clyde that the
January 2021 finding unfairly brands him as an offending parent
who abuses drugs to the detriment of his children is illusory.
Moreover, notwithstanding the nonjusticiability of the
jurisdiction finding as to Cristian, in the following section we
evaluate—and affirm—the disposition orders he challenges on
appeal, as we would if he were nonoffending. (Cf. In re K.T.,
supra, 49 Cal.App.5th at p. 25 [considering whether juvenile
court abused its discretion in ordering nonoffending father with
whom child was placed to participate in a parenting course].)
2. The Juvenile Court’s Disposition Orders Were Well
Within Its Broad Discretion To Protect Clyde and Bonnie
We review the juvenile court’s disposition orders, including
for a parent as to whom no jurisdiction finding was made, for an
abuse of discretion. (In re K.T., supra, 49 Cal.App.5th at p. 25;
11
see In re D.P. (2020) 44 Cal.App.5th 1058, 1071; see generally
In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474 [“The juvenile
court has broad discretion to determine what would best serve
and protect the child’s interests and to fashion a dispositional
order accordingly. On appeal, this determination cannot be
reversed absent a clear abuse of discretion”].)
Emphasizing he did nothing to precipitate the current
dependency proceedings, which were initiated because of
Jessica’s use of fentanyl during her pregnancy with Bonnie,
Cristian argues neither the drug abuse program nor the domestic
violence program ordered by the juvenile court was necessary to
protect the children. To the contrary, he contends, he had
already participated in drug rehabilitation in 2012 or 2013 and
claimed he had not used drugs since then. He also testified he
had completed a domestic violence program in 2015 or 2016 and a
parenting class while in jail.
Cristian provided no documentation to support his
assertions regarding prior programming. Moreover, as the
juvenile court explained, even if Cristian had participated in
substance abuse rehabilitation and domestic violence counseling
years earlier, in 2018 the juvenile court found Cristian was a
current user of illegal drugs and had transported Clyde while
under the influence of heroin, Cristian admitted when
interviewed in December 2020 that he had been convicted and
incarcerated in 2019 for child cruelty and some form of battery,
and Jessica testified Cristian’s jail sentence involved domestic
violence—all of which indicated Cristian continued to have
serious substance abuse and anger/violence issues. As discussed,
dependency jurisdiction terminated in that proceeding in 2019
because the court believed (incorrectly, as it turned out) Jessica
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could provide a safe home for Clyde, not because Cristian—who
was limited to monitored visitation—had successfully dealt with
his problems. And, as the Department notes, Cristian’s denial of
any drug use after 2012 or 2013 and any issue of violence since
2015, notwithstanding the strong evidence to the contrary,
reinforces the need for corrective programming under court
supervision. (See, e.g., In re V.L. (2020) 54 Cal.App.5th 147, 156
[parent’s denial of domestic violence increases the risk of it
recurring]; 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’”];
In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot
correct a problem one fails to acknowledge”].)
Given Cristian’s history and the children’s young age, the
juvenile court acted well within its discretion in requiring him to
participate in substance abuse and domestic violence programs.
DISPOSITION
The jurisdiction finding and disposition orders are
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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