In re Katherine A. CA2/3 ( 2021 )

Filed 12/6/21 In re Katherine A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
In re KATHERINE A., et al., Persons B309881
Coming Under the Juvenile Court
Law.
___________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP04451A-B)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES, ORDER MODIFYING OPINION AND
DENYING PETITION FOR
Plaintiff and Respondent, REHEARING [NO CHANGE IN
JUDGMENT]
v.
ANTHONY A.,
Defendant and Appellant.
It is ordered as follows:
1. The opinion in this matter, filed November 15, 2021,
is modified by adding the following four paragraphs after the
final paragraph of the opinion (page 19):
In any event, father’s contentions lack merit. “[T]o remove
a child from a parent, DCFS must prove by clear and convincing
evidence that, at the time of the dispositional hearing, ‘a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor’ exists, and that
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); see In
re Ashly F. (2014) 225 Cal.App.4th 803, 809.) . . . . [¶] ‘ “In
reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. ‘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.’ ‘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.’ ” ’ (In re I.J. (2013) 56
Cal.4th 766, 773.) In reviewing for substantial evidence to
support a dispositional order removing a child, we ‘keep[ ] in
mind that the [juvenile] court was required to make its order
based on the higher standard of clear and convincing evidence.’
(Ashly F., supra, 225 Cal.App.4th at p. 809; see Conservatorship
of O.B. (2020) 9 Cal.5th 989, 1005.)” (In re Nathan E. (2021) 61
Cal.App.5th 114, 122–123.)
In the present case, abundant evidence supported the
juvenile court’s removal order. As discussed more fully in the
prior section, there was substantial evidence that father’s
conduct had caused Katherine to suffer serious emotional
damage, including anxiety, depression, and self-harm, and had
put both children at risk of serious physical harm. There also
was substantial evidence—including the evidence described in
2
the prior section—that the children could not be adequately
protected without removing them from father’s care.
Additionally, we reject on the merits father’s contention
that the removal order must be reversed because the juvenile
court failed to state the facts on which it based its decision. Even
were we to conclude that the juvenile court’s factual findings
were deficient, we would find such deficiency to be harmless.
“ ‘[C]ases involving a court’s obligation to make findings
regarding a minor’s change of custody or commitment have held
the failure to do so will be deemed harmless where “it is not
reasonably probable such finding, if made, would have been in
favor of continued parental custody.” ’ (In re Jason L. (1990) 222
Cal.App.3d 1206, 1218.) As explained in [In re] D.P. [(2020)] 44
Cal.App.5th [1058,] 1068, this is because a removal order ‘is
subject to the constitutional mandate that no judgment shall be
set aside “unless, after an examination of the entire cause,
including the evidence, the [appellate] court shall be of the
opinion that the error complained of has resulted in a
miscarriage of justice.” ’ ‘Under this mandate a “miscarriage of
justice” will be declared only when the appellate court, after
examining the entire case, is of the opinion that “ ‘it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.’ ” ’ ” (In re
L.O. (2021) 67 Cal.App.5th 227, 247.)
Based on our review of the entire record, and as discussed
previously, we conclude it is not reasonably probable that the
juvenile court would have found that the children could safely be
returned to father.
3
2. The petition for rehearing is denied. There is no
change in the judgment.
____________________________________________________________
EDMON, P.J. EGERTON, J. WINDHAM, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
4
Filed 11/15/21 In re Katherine A. CA2/3 (unmodified opinion)
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 THREE
In re KATHERINE A., et al., Persons B309881
Coming Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 20CCJP04451A-
FAMILY SERVICES, B)
Plaintiff and Respondent,
v.
ANTHONY A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Philip L. Soto, Judge. Affirmed.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and Aileen Wong, Deputy County
Counsel for Plaintiff and Respondent.
_________________________
Anthony A. (father) appeals from an order adjudicating his
children juvenile court dependents and removing them from his
custody. Father contends the allegations of the petition should
have been adjudicated by a family court, not a juvenile court; the
allegations were barred by collateral estoppel; substantial
evidence did not support the juvenile court’s jurisdictional
findings; and the juvenile court abused its discretion by removing
the children from father’s custody and designating their mother
the sole educational rights holder. We find no error, and thus we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Imelda C. (mother)1 are the parents of
Katherine A. (born in December 2003) and Immanuel A. (born in
November 2004). The parents were married, but separated in
early 2019. They continued to live together until about June
2020.2
A. Mother’s Request for a Domestic Violence Restraining
Order
Mother filed a request for a domestic violence restraining
order against father in the family court on July 17. Mother
alleged that father verbally abused Katherine, had threatened to
physically assault Immanuel, and threatened mother.3 The
1 Mother is not a party to this appeal.
2 All subsequent dates are in 2020, unless otherwise stated.
3 On May 14, 2021, father filed a request for judicial notice of
the restraining order request, the minute order and reporter’s
transcript of the restraining order hearing, and the family court’s
register of actions. We deferred ruling on the motion on June 3,
2021, and we now grant it.
2
superior court denied mother’s request, finding that mother had
not “describe[d] in sufficient detail the most recent incidents of
abuse, such as what happened, the dates, who did what to whom,
or any injuries or history of abuse.” The superior court also
denied mother’s request for sole custody of the children, instead
ordering the parents to share legal and physical custody.
B. DCFS Investigation
The family came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) in July, as
the result of two calls to the child abuse hotline. A children’s
social worker (CSW) interviewed 16-year-old Katherine, who said
father had kicked mother out of the family home in May because
he blamed her for the death of his pet tarantula. Katherine said
her parents argued frequently, and father insisted that
Katherine be present during their arguments because she should
be a “witness to her parents’ problems.” Father “brainwashed”
Katherine by telling her mother was mentally ill and was an
unfit mother. Katherine said she stayed with father after mother
moved out because she was afraid to tell father that she did not
want to live with him.
Katherine reported that father had a 17-year-old girlfriend
in Tijuana, whom he visited frequently. Katherine said there
was very little food in the house because most of father’s money
went to the girlfriend. Father became angry if the children asked
for food. Recently, father took Katherine and Immanuel to
Tijuana with him, stopping at a marijuana dispensary before
they crossed the U.S./Mexico border. Once in Tijuana, father
allowed the girlfriend to drive his car, the family was stopped at a
checkpoint, and the car was searched. The Mexican police
threatened to tow father’s car and to arrest him for transporting
3
marijuana to a minor; father was able to avoid arrest by paying
the police officer a bribe of a $1,000. After the incident,
Katherine had a panic attack.
Katherine said father took her and Immanuel to Tijuana
two more times after this incident, which made her very anxious.
She finally told father she wanted to live with mother. Father
was upset, but ultimately consented. Katherine reported feeling
much safer with mother because mother provided structure and
made sure the children were fed and cared for.
Katherine reported several instances in which father had
been sexually inappropriate with her. She said that about a year
earlier, father had told her, Immanuel, and their cousin that he
would give them money if they found a girl of any age for him to
have sex with. Father also regularly watched pornography on his
computer while Katherine was in the same room, and he had
more than once shown her pictures on his phone of partially
naked women he was dating and described intimate details of his
activities with the women. If Katherine asked him to stop
watching pornography, he would become upset. He had also told
Katherine that he had been sexually abused when he was a child,
and that he and his sister had sex with one another when they
were in high school, which he described as “ ‘normal.’ ”
Katherine said she was afraid of father because he became
angry when she disagreed with him. He had never harmed her
physically, but he yelled frequently and had threatened to kill
her cats. Katherine had begun cutting herself as a result of
father’s verbal abuse; when father learned about the cutting, he
threatened to take her to a psychiatric ward where she would not
be allowed to see her family. Father said the cuts “better be
caused by mother and not him.” Katherine reported that she had
4
problems falling asleep and was having nightmares about seeing
father in public.
Like Katherine, Immanuel said father had forced mother to
leave the home because he blamed her for the death of his pet
tarantula. During the month Immanuel and Katherine lived
with father, there was very little food in the house and the
children were not well cared for. Father would “randomly become
upset” and frequently said things to Katherine that made her cry,
including telling her that she would have to go to a hospital
“forever” if she was cutting herself and that her boyfriend was
going to leave her. Immanuel also reported a recent incident in
which father threatened to “put on boxing gloves to beat
[Immanuel] up.” Immanuel said father had threatened to have
paternal relatives hurt members of mother’s family, and like
Katherine, he described an incident in which father had offered
to pay him if he found a girl with whom father could have sex.
He said father watched pornography around him and his sister.
Immanuel repeated Katherine’s account of the incident in
Tijuana, after which Katherine had started hyperventilating and
had a panic attack. He and Katherine subsequently moved in
with mother, where he felt safe. He said he sometimes feared
father.
Katherine’s therapist said Katherine reported hiding from
father because she was afraid of him. Katherine talked
frequently about what had happened when she lived with father,
cried often, and was having a difficult time processing her
experiences.
Mother told the CSW that after father kicked her out of the
house, he turned off her cell phone so she could not speak with
the children. She said father was emotionally abusive and had
5
threatened to have his friends beat her up. He had also
threatened to beat up Immanuel. Mother said father had often
told her she was crazy and unfit to raise children, had threatened
to have her detained in a psychiatric facility, and had threatened
to make her look like an unfit parent if she sought child support.
Father told the CSW that mother was psychotic, a
sociopath, and had been diagnosed with many mental health
disorders. He said he had safety concerns about the children
remaining with mother because she was unpredictable and
explosive. He admitted talking to a woman in Tijuana whom he
met through a dating website, but he said the woman was
19 years old and they were “just friends.” Father refused to
provide the woman’s name, date of birth, or phone number. He
denied withholding food from the children, lashing out at the
children, and bribing the Mexican police.
C. Petition; Detention
DCFS removed the children from father on August 21 and
filed a juvenile dependency petition on August 25. As
subsequently amended, the petition alleged that father
endangered the children by driving with them to Mexico with
marijuana in his car (Welf. & Inst. Code, § 300, subd. (b)), and
emotionally abused Katherine by yelling at her, describing his
childhood sexual trauma, suicidal thoughts, and romantic
relationships, and threatening to kill her cats, causing Katherine
to suffer panic attacks, anxiety, and depression, and to engage in
self-harm (id., subd. (c)).4
4 All subsequent statutory references are to the Welfare and
Institutions Code.
6
On August 28, the juvenile court ordered the children
detained from father and placed with mother under DCFS
supervision.
D. Jurisdiction/Disposition Report
In November, Katherine told the CSW that when she lived
with father, “it would be constant stress from the moment she
woke up.” She felt much happier since moving in with mother
and was no longer experiencing chronic stress. Immanuel, too,
said he preferred living with mother.
Mother said that Katherine’s mood had improved since
transitioning from father’s home. Mother said Katherine was
crying less, had regained her appetite, and expressed less fear
that father was “coming to pick them up.”
Father admitted yelling at Katherine, but he said it was
justified because she did not clean up after herself and “in his
house, you do what he says.” He said that “if screaming caused
that much trauma, then the whole world would come down.” He
denied threatening to kill Katherine’s cat, but admitted taking
the cat to the pound, where “they can do what they want with the
cat.” Father believed the children preferred living with mother
because she had fewer rules. With regard to his trips to Tijuana,
father said he knew his children did not want to go, but he felt he
“ha[d] to take them” because mother “cyber stalked” him and
“would be upset [if] the kids were home by themselves.” Father
said he had spent his life being his kids’ protector, and he
described himself as a “beaten man.”
There were no visits between father and the children
between August and November because the children were not
comfortable seeing or speaking to father.
7
E. Jurisdiction/Disposition Hearing
At the November 20 hearing, father’s counsel argued that
DCFS had not met its burden as to either allegation of the
petition. As to the section 300, subdivision (b) count, counsel
acknowledged that father had some “boundary issues,” but she
contended that father’s conduct had not placed the children at
risk of serious physical harm. As to the subdivision (c) count,
counsel said father had made legitimate parenting choices, as a
result of which the children “turned on him, and said, ‘Let’s go
with mom now.’ ” Counsel also argued that all the allegations of
the petition had been litigated in the family court, and “it looks
like the mother is trying to get a second bite at the apple.”
Counsel urged: “This case belongs in family law court, Your
Honor. This is a custody battle. And there are ongoing family
law proceedings.”
The court sustained the allegations of the amended
petition, found that continuance in father’s home would be
contrary to the children’s welfare, and ordered the children
removed from father and placed with mother under DCFS
supervision. The court further ordered father to attend anger
management and parenting classes, participate in individual
counseling, and attend conjoint counseling with the children if
recommended by a therapist. Father was granted monitored
visits with both children.
Father timely appealed from the jurisdictional and
dispositional findings and order.
8
DISCUSSION
Father contends: (1) the juvenile court erred in asserting
jurisdiction over the children because the disputes between the
parents should have been resolved in a family court, not a
juvenile court; (2) the juvenile court was barred by collateral
estoppel from adjudicating the same factual issues already
decided by the family court; (3) the allegations of the petition
were not supported by substantial evidence; and (4) the juvenile
court erred by removing the children from father and giving
mother sole educational rights. For the reasons that follow, these
contentions lack merit.
A. The Juvenile Court Did Not Err by Asserting
Jurisdiction Over the Children
Father contends the juvenile court erred by asserting
dependency jurisdiction over the children because “ ‘[t]he family
court, rather than the juvenile court, is the proper forum for
adjudicating child custody disputes.’ ” According to father, the
present case involved merely a custody dispute between the
parents, which mother moved into dependency court “to gain
advantage in a custody battle [and] to get a ‘second bite at the
apple.’ ” Thus, father suggests, “the assertion of dependency
jurisdiction was improper as a matter of law.”
Father’s contention is without merit. As a factual matter,
father’s suggestion that mother initiated the dependency
proceeding is inaccurate. The proceeding was initiated by DCFS,
not by mother, and it does not appear that mother made either of
the calls to the child abuse hotline that catalyzed DCFS’s
investigation. Further, the petition was not based on the hotline
reports, but instead followed DCFS’s independent investigation of
the allegations.
9
In any event, regardless of the origins of the investigation,
we are not aware of any authority—and father cites none—for
the proposition that a juvenile court may abstain from exercising
otherwise-proper jurisdiction because child custody is already
being litigated in a family court. Indeed, another division of this
court has expressly decided to the contrary, holding that a
juvenile court erred by dismissing a dependency petition on the
grounds that a mother and father were already litigating custody
of the children in family court. In In re Nicholas E. (2015)
236 Cal.App.4th 458, the appellate court explained that a rule
permitting a juvenile court to abstain in favor of a family court “is
inconsistent with the long-standing principle that dependency
proceedings have primacy over family court proceedings when it
comes to child custody matters.” (Id. at p. 465.) The court said:
“There is good reason for this principle: Family court proceedings
are aimed at assessing ‘the best interests of the child as between
two parents.’ [Citation.] Dependency proceedings are not so
narrow in focus, and invoke the state’s role as parens patriae in
evaluating the best interest of the child, even if it means
placement with someone other than the parents. [Citations.] A
rule requiring abstention without any adjudication dilutes the
primacy of dependency jurisdiction.” (Ibid.) Thus, the court
concluded, where DCFS establishes that dependency jurisdiction
is warranted, the family court “must give way to the primacy of
dependency court jurisdiction and its special role. To rob [DCFS]
of its chance to prove its allegations is to elevate judicial economy
above the protection of children, in contravention of our
Legislature’s express declaration that dependency jurisdiction be
construed broadly.” (Id. at p. 466; see also In re Anne P. (1988)
199 Cal.App.3d 183, 193 [“It has long been established that a
10
superior court order awarding custody of minor children in a
divorce action does not, in itself, deprive the juvenile court of
jurisdiction to later litigate matters and issue orders affecting the
custody of those children”]; § 362.4, subd. (a) [when juvenile court
terminates jurisdiction over child, if “proceedings for dissolution
of marriage . . . are pending in the superior court . . . the juvenile
court on its own motion may issue a protective order . . . and an
order determining the custody of, or visitation with, the child”].)
Nicholas E. correctly applies California’s statutory and
decisional law, and we adopt its analysis. We therefore reject
father’s contention that the juvenile court should have abstained
from adjudicating the dependency petition.
B. Collateral Estoppel Principles Did Not Bar the
Juvenile Court from Adjudicating the Petition
Father next contends that the juvenile court should have
dismissed the dependency petition because the doctrine of
collateral estoppel barred relitigation of the same issues already
decided by the family court. Father urges that when the family
court denied mother’s request for a restraining order, it
necessarily decided that shared physical custody would be in the
children’s best interests, and that the children were not at
substantial risk of serious physical or emotional damage in
father’s care. Accordingly, father suggests, “the doctrine of
collateral estoppel precluded mother (indirectly via DCFS) from
shopping for judges and relitigating the same factual issues in
dependency court.”
It is well established that the litigation of custody issues in
family court does not estop the juvenile court from considering
factually identical issues in dependency proceedings. In In re
Benjamin D. (1991) 227 Cal.App.3d 1464, 1469 (Benjamin D.),
11
a family court awarded a mother primary physical custody over a
child and granted the father regular visitation; the family court
later denied mother’s request, based on her testimony that father
physically abused the child, to eliminate father’s visitation
entirely. (Id. at p. 1467.) Subsequently, the juvenile court
sustained a dependency petition alleging that the child was
subject to the court’s jurisdiction’s because he had been
physically abused by his father. (Id. at p. 1468.) The father
appealed, contending that the dependency court erred by
considering evidence of abuse that had also been before the
family court. The Court of Appeal disagreed and affirmed.
It explained: “Quite obviously, prior consideration of the custody
of a minor by a family law court cannot deprive a juvenile court of
jurisdiction to make orders to protect the minor. [Citations.] The
purposes and parties of family law and juvenile proceedings,
while often overlapping, are not the same. The family law court
adjudicates the rights of private parties vis-a-vis each other. The
juvenile court takes into account the interest of the state as the
guardian of persons with legal disabilities. [Citation.] [¶] . . .
Accordingly, . . . a juvenile court may properly consider evidence
of a parent’s past conduct, regardless of whether such evidence
may have been adduced in another proceeding . . . . [Citation.] [¶]
. . . [¶] . . . A juvenile court must not shut its eyes to facts pointing
to the threat of future injury just because those facts may have
been previously aired in a family law forum.” (Id. at pp. 1469–
1470, italics added, fn. omitted.)
The Court of Appeal similarly concluded in In re Desiree B.
(1992) 8 Cal.App.4th 286 (Desiree B.). There, the juvenile court
sustained a petition alleging that a child had been sexually
abused by her father; on appeal, the father urged the juvenile
12
court erred in considering the evidence of sexual abuse because it
previously had been considered by a family court. (Id. at pp. 290–
291.) The Court of Appeal disagreed, holding that a juvenile
court in a dependency proceeding “is not estopped from
reconsidering issues litigated in a prior family law proceeding.”
(Id. at p. 291.) It explained: “ ‘[O]ur Supreme Court [has
explained] that the “issues” before the family law court and
juvenile court can never, in fact, be “identical,” even if some or all
of the facts of abuse or neglect adduced in the two proceedings
are the same, because of the important differences between the
purposes and operations of the two courts, and the state’s
overriding concern for the protection of the children.’ [Citation.]
[¶] . . . [T]he actions of private parties . . . cannot defeat the
obligations of the juvenile court. Indeed, where there is abject
acrimony between the parents, the juvenile court, with its
inclusion of the state as a litigant and its provisions for the
appointment of counsel to represent the minor, is the best forum
for consideration of issues concerning custody when the child
comes within one of the descriptions contained in section 300.
[Citation.] [¶] . . . The litigation of custody issues in family court
does not estop the juvenile court from reconsidering factually
identical issues.” (Id. at pp. 292–293, italics added; see also In re
Travis C. (1991) 233 Cal.App.3d 492, 503 [“despite the fact that
there was a continued hearing pending in the family law court
which involved factual allegations of sexual abuse by minors’
father, the juvenile court had jurisdiction over a petition
containing the same factual allegations, in its role as parens
patriae”]; Dupes v. Superior Court (1917) 176 Cal. 440, 441–442
[“The mere fact that a litigation is pending between the parents
and that an order regarding the custody of the children has been
13
made therein does not take away the power of the state nor
prevent the exercise of that power under the Juvenile Court
law.”].)5
In the present case, as in Benjamin D. and Desiree B., the
family court’s denial of mother’s application for a restraining
order did not preclude the juvenile court from exercising
jurisdiction over the children. As a factual matter, the family
court did not find that father had not physically endangered or
emotionally abused the children—it found only that mother, who
was self-represented, had failed to “describe[] in sufficient detail
the most recent incidents of abuse.” But even if the family court
had found against mother on the merits of her application, that
finding would not have precluded the juvenile court from
exercising jurisdiction over the children based on the same
factual allegations because the juvenile court had an independent
obligation under state law to protect the children from physical
and emotional injury. The juvenile court did not err in so
concluding.
5 None of the cases father cites in his opening brief are
relevant to our analysis. Most of the cases father relies on arose
outside the dependency context; the single dependency case he
cites, In re Donovan L. (2016) 244 Cal.App.4th 1075, considered
whether a parentage finding made in one dependency case had
collateral estoppel effect in a subsequent dependency case.
In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548, which
father cites in his reply brief, is inapposite. Joshua C. held that a
juvenile court’s factual findings in a dependency proceeding are
preclusive in family court—not, as father contends here, that a
family court’s findings are preclusive in dependency proceedings.
14
C. Substantial Evidence Supported the
Juvenile Court’s Findings
Father next contends that the juvenile court’s assertion of
jurisdiction was improper because the allegations of the
dependency petition were not supported by substantial evidence.
We disagree.
Section 300 provides that a child is within the jurisdiction
of the juvenile court if the 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
. . . to adequately supervise or protect the child” (subdivision (b)),
or “is suffering serious emotional damage, or is at substantial
risk of suffering serious emotional damage, evidenced by severe
anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent” (subdivision (c)).
We review the juvenile court’s jurisdictional findings for
substantial evidence. “ ‘In reviewing a challenge to the
sufficiency of the evidence supporting the jurisdictional findings
and disposition, we determine if substantial evidence,
contradicted or uncontradicted, supports them. “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 I.J. (2013) 56 Cal.4th 766, 773.)
“ ‘ “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.]” ’ ” (Ibid.)
There was abundant evidence in the present case that
Katherine had suffered serious emotional damage—including
15
anxiety, depression, and self-harm—as a result of father’s
conduct. Katherine reported that father was easily angered,
yelled frequently, and overwhelmed her emotionally by
discussing his problems with her. He forced the children to be
present during arguments between mother and father,
threatened to kill Katherine’s cats and to separate Katherine and
Immanuel, and told the children their mother was mentally ill.
He frequently was sexually inappropriate with Katherine,
showing her pictures of partially naked women he was dating,
describing his sexual contact with women, watching pornography
in her presence, and offering her money to find a girl for him to
have sex with. Katherine told her therapist and the CSW that
father’s conduct caused her to feel stressed, overwhelmed, and
anxious. As a result, Katherine began having panic attacks,
crying frequently, and cutting herself. She also described having
difficulty sleeping and nightmares about seeing father. This
constituted “serious emotional damage” within the meaning of
section 300, subdivision (c). (See In re D.B. (2020) 48 Cal.App.5th
613, 621 [juvenile court properly sustained dependency petition
under section 300, subdivision (c), where father’s conduct caused
his daughter to feel scared and anxious, to cry frequently, and to
fear interacting with father]; In re D.P. (2015) 237 Cal.App.4th
911, 919–920 [substantial evidence supported juvenile court’s
jurisdictional finding under section 300, subdivision (c) where,
although the child had not yet suffered serious emotional harm,
he was at risk of future harm because he was exposed to constant
argument and domestic violence between his parents]; In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1320–1321 [juvenile
court properly sustained petition under section 300,
16
subdivision (c) where mother “brings a foreboding sense of dread,
danger and catastrophe to the lives of her children”].)
There also was substantial evidence that father’s conduct
put the children at risk of serious physical harm. Both children
reported that father crossed the U.S./Mexico border with drugs in
his car. Mexican police stopped the family, searched the car, and
threatened to arrest father; father was able to avoid arrest only
by paying a $1,000 bribe. The potential for physical danger to the
children if father had been arrested is manifest—had father been
arrested, the children would have been stranded in Mexico
without adult supervision or the ability to get home. 6
Citing In re J.N. (2010) 181 Cal.App.4th 1010 (J.N.), father
contends that even if his conduct “somehow” placed the children
at substantial risk of serious physical harm, it did not give rise to
dependency jurisdiction because it was a “single, isolated
incident.” We do not agree. In J.N., a father drove under the
influence with his three children and intoxicated wife, and
crashed into a light pole. (Id. at p. 1014.) The Court of Appeal
reversed the juvenile court’s jurisdictional finding that the
children were at risk of harm from the incident, noting that the
parents had no prior criminal history or history of substance
abuse, there was no pattern of past risk, and there was no finding
of an ongoing substance abuse problem. (Id. at pp. 1020–2022,
6 Father contends that the incident in Mexico did not provide
a sufficient basis for the juvenile court to exercise jurisdiction
because “[t]here is no ‘Go to jail, lose your child’ rule in
California.” While the legal principle is correct, it does not apply
here, where father has not demonstrated that he could have
made adequate arrangements for his children in Mexico had he
been arrested.
17
1027.) Further, the parents expressed regret, were cooperative,
and were willing to change. (Id. at pp. 1018–1019.)
In the present case, in contrast, there is evidence that
father repeatedly put his own needs—specifically, his desire for
sexual gratification—ahead of the needs of his children. Father
refused to acknowledge many of the troubling incidents described
by the children and he defended others, saying the only thing he
was guilty of was “having too much empathy.” And, when he was
told that his children were afraid to visit him and that his
conduct triggered Katherine’s cutting, father said he felt his
children had betrayed him.
As other courts have said, “[o]ne cannot correct a problem
one fails to acknowledge.” (In re Gabriel K. (2012)
203 Cal.App.4th 188, 197.) Here, father refused to accept
responsibility for any of his conduct that endangered his children,
including his near-arrest in Mexico and his attempt to recruit his
children to help him find new sexual partners. The juvenile court
therefore reasonably concluded that DCFS’s intervention was
necessary to protect the children from a risk of future harm.
D. The Juvenile Court Did Not Abuse Its Discretion by
Removing the Children from Father and Ordering
that Only Mother Hold Educational Rights
Father contends the removal order must be reversed
because the juvenile court failed to state the facts on which it
based its decision, and substantial evidence did not support the
juvenile court’s findings that the children were at risk of harm
and there were no reasonable alternatives to removal. Father
also contends that the juvenile court abused its discretion by
ordering that educational rights be held by mother only.
18
Father did not raise any of these objections in the juvenile
court, and thus the juvenile court did not have the opportunity to
address them. Father therefore has forfeited these objections on
appeal. (See, e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293 [“a
reviewing court ordinarily will not consider a challenge to a
ruling if an objection could have been but was not made in the
trial court.”]; In re Dakota H. (2005) 132 Cal.App.4th 212, 222
[parent “may not assert theories on appeal which were not raised
in the [juvenile] court”].)
19
DISPOSITION
The November 20, 2020 jurisdictional and dispositional
order is affirmed. Father’s request for judicial notice, filed
May 14, 2021, is granted. (See fn. 3, ante.)
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
WINDHAM, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
20