In re K.B. CA2/3 ( 2020 )

Filed 9/17/20 In re K.B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.B., a Person Coming Under B302031
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 19CCJP05317A)
Plaintiff and Respondent,
v.
AMBER M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Martha A. Matthews, Judge. Affirmed.
Donna B. Kaiser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
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Amber M. (mother) appeals from the juvenile court’s order
taking jurisdiction over K.B. (age four), granting father sole legal
and physical custody, and terminating jurisdiction. She contends
that the court should have dismissed the petition at the
adjudication hearing because father is nonoffending, with the
result that this case belongs in the family court. We disagree and
affirm.
BACKGROUND
Mother drinks a bottle of tequila a day and is belligerent in
front of the child. The Department of Children and Family
Services (DCFS) filed a petition under Welfare and Institutions
Code1 after two separate incidents in which mother fought with
elderly and juvenile family members. Mother hit maternal great-
grandmother (GGM) and uncle. She attacked 13-year-old aunt by
“whaling” on aunt, punching her in the face, pouring beer down
her back, and pulling her hair. Mother threw and broke objects
in the house. K.B., then three years old, witnessed “everything.”
A neighbor called the police and great-uncle tackled mother to
the ground. Mother grabbed K.B. and drove away without
securing him in a child safety seat.
Father does not live with mother. He is stable and
employed. During the two years they lived together he and
mother drank alcohol, but father has been sober for six years.
1 All further statutory references are to the Welfare and
Institutions Code.
2
GGM explained that when mother and father separated, mother
began drinking heavily. She was “out of control,” and refused to
go into rehabilitation. The six-count petition alleged mother’s
fighting with family members in K.B.’s presence, her alcohol
abuse, and driving under the influence with the unsecured child
in the car. (§ 300, subds. (a) & (b).) Father is nonoffending.
On September 19, 2019, mother submitted to three of the
counts in the petition. The juvenile court sustained the petition
and declared K.B. a dependent. Turning to the disposition, the
court removed the child from mother’s custody and placed him
with father. It awarded the parents joint legal custody and
father sole physical custody finding that although mother denied
she had a problem with alcohol, mother was able to make health
care and education decisions for the child when sober. The court
awarded mother monitored visits, and directed the parents to
mediate visitation by devising a schedule, choosing a monitor,
and agreeing to methods for exchanging the child and for
communicating with each other.
With all parties agreeing to terminate dependency
jurisdiction, the juvenile court found under sections “245.5 and
390,[2] that the child is safely in the custody of the father, and
2 Section 245.5 reads, “In addition to all other powers
granted by law, the juvenile court may direct all such orders to
the parent, parents . . . of a minor who is subject to any
proceedings under this chapter as the court deems necessary and
proper for the best interests of . . . the minor. These orders may
concern the care, supervision, custody, conduct, maintenance,
and support of the minor, including education and medical
treatment.”
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that it is in the interest of justice in the best interest of the
welfare of the child that jurisdiction be terminated. The court
finds that father is not in need of services from” DCFS. Based on
these findings, the court terminated its jurisdiction but stayed
termination pending receipt of a custody order and of the parents’
mediated visitation agreement. The court set a hearing for
October 25, 2019 for receipt of the custody order.
DCFS reported in a last minute information for the court
that mother was not attending any programs and did not respond
to the social worker’s attempts to reach her. Mother also failed to
appear for her weekly alcohol tests.
On October 25, 2019, the juvenile court observed that
DCFS’s last minute information for the court contained details
about issues that may affect the child’s safety in the future. The
court changed its custody award to give father sole legal and
physical custody. The court continued the hearing to October 28,
2019 for receipt of the custody order.
After mediation, the parents signed a parenting plan
agreement, which is designated as attachment 10 to form JV-200.
The October 28, 2019 hearing was trailed to the following
day. On October 29, 2019, the juvenile court filed the final
custody order on form JV-200 with the mediated visitation
agreement. The court then lifted its stay and terminated its
jurisdiction. Mother appealed.
Section 390 reads, “A judge of the juvenile court in which a
petition was filed, at any time before the minor reaches the age of
21 years, may dismiss the petition or may set aside the findings
and dismiss the petition if the court finds that the interests of
justice and the welfare of the minor require the dismissal, and
that the parent . . . of the minor is not in need of treatment or
rehabilitation.”
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DISCUSSION3
Mother’s briefs do not challenge the sufficiency of the
evidence to support jurisdiction or the terms of the custody order.
Rather, relying on In re A.G. (2013) 220 Cal.App.4th 675 (A.G.)
and In re Phoenix B. (1990) 218 Cal.App.3d 787 (Phoenix B.), she
contends that the juvenile court should have dismissed the
petition at the jurisdiction hearing and stayed the dismissal until
father obtained a family court custody award. She argues that
father, who is nonoffending, is indisputably a competent parent
and capable of properly caring for K.B. In view of the fact that
the court did terminate its jurisdiction under section 390
concerning dismissal, mother is essentially arguing that the court
should not have taken jurisdiction in the first place, as this case
is properly a family law matter.
Preliminarily, mother never asked the juvenile court to
dismiss the petition, and instead submitted to three of the
petition’s counts. She also agreed to termination of jurisdiction,
which is predicated on the court taking dependency jurisdiction
first. It is “clearly unproductive to deprive a trial court of the
opportunity to correct . . . a purported defect by allowing a
litigant to raise the claimed error for the first time on appeal.”
(In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138.) It
“would be unfair to allow counsel to lull the trial court and
opposing counsel into believing the . . . decision was acceptable,
3We disagree with DCFS that mother’s appeal was
untimely. Filed on November 1, 2019, the notice specified that
mother was appealing from the custody order entered on
October 29, 2019 in which the juvenile court lifted its stay and
terminated jurisdiction. The appeal also sought “other
appropriate relief.”
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and thereafter to take advantage of an error on appeal although
it could have been corrected” in the trial court. (Ibid.)
Even considering the merits of mother’s contention that the
juvenile court abused its discretion in failing to dismiss the
petition sua sponte before adjudicating it, we conclude the
argument is meritless.
The cases on which mother relies are inapposite. In
Phoenix B., supra, 218 Cal.App.3d at pages 789 to 790, the
mother was involuntarily hospitalized for a mental breakdown
and so social services filed a petition. Social services released the
child to the father, who was willing and able to care for her. (Id.
at p. 790.) Social services then moved to dismiss the petition,
noting that the mother planned to seek custody and suggesting
that the family court was the appropriate forum. (Ibid.) The
appellate court affirmed the order dismissing the petition on the
ground that the juvenile court did not abuse its discretion as the
father was providing appropriate care. (Id. at p. 794.) Hence, the
matter was simply a custody dispute.
In A.G., supra, 220 Cal.App.4th 675, dependency
jurisdiction was also based on the mother’s mental illness, which
rendered her unable to care for her children. The mother
contended that jurisdiction was improper because the
nonoffending father was adequately caring for the children. (Id.
at pp. 677 & 686.) The A.G. court concluded that DCFS was
unable to show harm based on the mother’s illness because the
father had been living in the same household with the children
and then moved out with them, thus eliminating any risk of harm
to the minors, even if the court had not intervened. (Id. at p. 684.)
Therefore, A.G. concluded that jurisdiction was improper and
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“that matters such as this one belong in the family court.” (Id. at
p. 686.)
Unlike Phoenix B. and A.G., this case is not a custody
dispute between two competent parents. (Cf. In re John W.
(1996) 41 Cal.App.4th 961, 976 [custody battles between
functional parents belong in family court].) Rather, DCFS has
demonstrated harm by substantial evidence. Before dependency
jurisdiction, mother was entitled to physical custody K.B. She
placed him at risk of harm by repeatedly and violently fighting
with her family members in K.B.’s presence and by driving while
intoxicated with the child unsecured in the car. Serious conduct
was not at issue in A.G. or Phoenix B. Violence in the presence of
children creates a substantial risk of serious harm or illness and
is detrimental to them. (In re Heather A. (1996) 52 Cal.App.4th
183, 194.) Unlike the fathers in Phoenix B. and A.G., father here
was not living with mother and was not present to protect K.B.
from the risk of harm that mother’s alcoholism and violence
cause. Thus, mother was an offending parent necessitating
dependency jurisdiction to protect K.B.
The case also differs from A.G., where there was a
simultaneous family law proceeding, and from Phoenix B. where
the mother was seeking a family law order. Father here could
not use a pending family court case to seek custody of K.B.
Meanwhile, K.B. needed immediate intervention. The juvenile
court, with its mandate to protect children from harm and
preserve families that are safe for the child (§ 300.2), is the
proper court in this case.
Finally, as explained in In re Nicholas E. (2015)
236 Cal.App.4th 458, 465, nothing “in . . . A.G.—or either of the
cases on which it relied—purported to authorize a juvenile court
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to skip the evidentiary hearing on jurisdiction or to apply a rule
of abstention just because a nonoffending parent could gain
custody of the child in an ongoing family court proceeding.” That
result would be “inconsistent with the long-standing principle
that dependency proceedings have primacy over family court
proceedings when it comes to child custody matters.”
(Nicholas E., at p. 465.) In sum, the juvenile court properly took
jurisdiction here to protect the child from harm. Then, after
finding that K.B. could be safe in father’s physical and legal
custody, the court properly terminated its jurisdiction.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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