In re I.R. CA2/5 ( 2020 )

Filed 9/2/20 In re I.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 I.R., a Person Coming Under
the Juvenile Court Law. B300530
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No.19CCJP01414A)
Plaintiff and Respondent,
v.
J.I.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los
Angeles County, Sabina A. Helton, Judge. Affirmed.
Michelle E. Butler, under appointment by the Court
of Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham, County
Counsel, Kristine P. Miles, Assistant County Counsel, and
David Michael Miller, Deputy County Counsel, for Plaintiff and
Respondent.
J.I. (Father) and Z.P. (Mother) are the parents of a son,
I.R., who was three years old when juvenile dependency
proceedings began. The juvenile court assumed jurisdiction over
I.R. because it found he was at substantial risk of serious
physical harm for two reasons: Mother’s methamphetamine
abuse and Father’s criminal history. The court denied Father’s
request to place I.R. with the paternal grandmother and instead
kept him in his placement with the maternal step-grandmother.
We consider (1) whether Father’s appeal of the jurisdiction
finding against him is justiciable notwithstanding the
uncontested jurisdiction findings against Mother and (2)
whether substantial evidence supports the juvenile court’s
placement order.
I. BACKGROUND
The Los Angeles County Department of Children and
Family Services (the Department) began investigating I.R.’s
welfare in February 2019 when Mother tested positive for
amphetamine after giving birth to I.R.’s younger half-brother
E.P. Mother admitted to a social worker that she used
methamphetamine during her pregnancy. Mother also revealed
I.R.’s maternal grandfather had been raising I.R. rather than her;
the maternal grandfather confirmed he and the maternal step-
grandmother had been caring for the child since birth because of
Mother’s inability to care for the children.
The Department filed a dependency petition alleging I.R.
was a child described by Welfare and Institutions Code1 section
300, subdivision (b) (as was E.P.) based on Mother’s substance
abuse and E.P.’s father’s history of substance abuse offenses. The
petition stated the whereabouts of I.R.’s father were unknown.
1 Undesignated statutory references that follow are to the
Welfare and Institutions Code.
2
The Department later located Father, who was
incarcerated at the time, and he made his first appearance in the
dependency proceedings in May 2019. Over the next several
months, the Department unsuccessfully attempted to contact
Father and interview him. When Father was in custody, the
Department was unable to reach Father’s prison counselor.
Later, once Father was released from prison, he failed to show
up to a scheduled interview with the Department and he did not
return a social worker’s phone call.
Although the Department was unable to interview
Father, the Department did obtain police reports and court
records that documented Father’s criminal history over the
prior six years. We summarize that history chronologically.
In 2013, Father was convicted of possession of drug
paraphernalia, sentenced to 18 months of probation, and ordered
to participate in a substance abuse program. His probation was
later revoked and he was sentenced to 20 days in jail. Also in
2013, Father was convicted of burglary and resisting arrest after
breaking into a car, stealing items, then attempting to flee the
police. Father was sentenced to 30 days in jail and given three
years of probation. Father violated that probation five times and
was given a jail sentence on each occasion.
In 2014, Father was charged with battery and use of a
deadly weapon, and he was found guilty of the charge the
following year, receiving a sentence of 60 days in jail and three
years of probation. Father violated that probationary term twice
and was sentenced to 200 days in jail.
In August 2015, Father was arrested after police
observed him take a shotgun concealed on his person (which
was unregistered and loaded) and toss it into a yard. When
apprehended, Father admitted he was a member of the Krazy
Crowd gang and went by the gang moniker “Youngster.” (Police
noted Father also had “KC” tattooed on his arm.) Father was
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convicted of carrying a loaded firearm in public and sentenced to
16 months in jail.
In 2017, Father was convicted of inflicting corporal injury
on a spouse or cohabitant (this was the offense closest in time to
the dependency proceedings). Father was sentenced to 270 days
in jail, ordered to complete a domestic violence program, and
placed on three years of probation. Thereafter, Father’s
probation was revoked three times. The third violation resulted
in a 290-day jail sentence. In August 2018, after a fourth
probation violation, Father was ordered to serve three years in
prison.
The Department filed an amended dependency petition in
June 2019 that alleged, in a new count, that Father’s “extensive”
criminal history placed I.R. at substantial risk of suffering
serious physical harm. As amended, the petition specifically
alleged: “[F]ather’s criminal record indicates several convictions
for violent crimes. [Father] has been convicted of carrying a
loaded firearm in a vehicle/public location, battery, brandishing a
weapon, burglary, resisting arrest, and inflicting corporal injury
on spouse/cohabitant. The father’s violent criminal history and
violent conduct endangers the child’s physical health and safety .
. . .”
The Department’s reporting on its investigation of I.R.’s
welfare included additional information about Father gleaned
from interviews of other family members. Mother expressed
concern about Father’s gang affiliation and told the social worker
that Father rarely paid attention to I.R. when he was younger.
The maternal grandparents similarly expressed concern about
Father’s gang membership and noted he had a history of being in
and out of jail. The maternal grandparents also told the
Department I.R. had no bond with Father and Father failed to
maintain regular visitation or contact with I.R. The maternal
step-grandmother further revealed that when Father did have
visits with I.R. there were a couple occasions when Father failed
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to return the child to the maternal grandparents at the agreed-
upon time—including one instance when Father had been
arrested while he had custody of I.R.
The Department’s reporting on its investigation stated I.R.
was doing well in the custody of the maternal grandparents. The
Department opined I.R. was bonded to his maternal
grandparents and called them “‘mom and papa.’”
At the combined jurisdiction and disposition hearing held
in August 2019, Father was not present.2 Father’s attorney
argued the court should dismiss the extensive criminal history
allegation against him because there was insufficient evidence of
a current risk of harm to I.R. The Department asked the court to
sustain the dependency petition as pled, arguing, as to the
allegation against Father, that his history of non-cooperation
with the court (evidenced by his probation violations and the
occasions on which he did not return I.R. to the maternal
grandparents after visitation) were good reason to believe I.R.
was at risk of serious harm. The court sustained the petition as
pled, finding true both the count alleging I.R. was at risk of harm
from Mother’s drug abuse and the separate count against Father.
As to the count adverse to Father, the court stated its view that
his violent crimes presented a risk to I.R.’s safety, particularly
given his young age, and noted Father was “not present to
present any evidence otherwise.”
At the disposition stage of the hearing, Father’s attorney
argued there was insufficient evidence of detriment to justify
denying him custody of I.R. The Department maintained
removal was appropriate: “Father has been in jail probably half
the child’s life. He’s not present today. He . . . has gang
affiliation. He’s got gang nicknames. He’s got that lifestyle.” The
court declared I.R. a dependent of the court and ordered him
2 Father’s attorney did not know why Father was absent and
requested a continuance. The juvenile court denied the request.
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to remain placed with the maternal step-grandmother. The court
stated it was not releasing I.R. to Father “for the reasons stated
by [the Department],” adding that I.R. had been in his current
placement for a long time and did not appear to have much of a
relationship with Father. The court ordered monitored visits for
Father, as well as parenting education and individual counseling.
Father now appeals the jurisdiction finding and the order
declining to place I.R. in his custody.3
II. DISCUSSION
It is certainly arguable that the juvenile court’s assumption
of jurisdiction over I.R. would not be proper based solely on the
dependency petition’s criminal history allegation against Father.
(See, e.g., In re S.D. (2002) 99 Cal. App. 4th 1068, 1077 [“There is
no ‘Go to jail, lose your child’ rule in California”].) But that was
not all the petition alleged; it is undisputed jurisdiction over the
child was proper based on the court’s finding that Mother was a
methamphetamine abuser. Because we would affirm the juvenile
court’s decision to assume jurisdiction over I.R. regardless of the
contested adverse finding against Father, we will not analyze the
propriety of that finding on the merits. As to Father’s separate
challenge to the disposition order, substantial evidence supports
the court’s determination that placing I.R. with Father would be
detrimental. Father had well-documented difficulties staying out
of prison and following court orders, and there were obvious
concerns about disrupting I.R.’s stability with the maternal
grandparents who had been caring for him essentially since birth.
3 The Department asks us to take judicial notice of a
Department report and a juvenile court order made after the
hearing from which this appeal is taken. We deny the motion.
(In re Zeth S. (2003) 31 Cal. 4th 396, 405; Haworth v. Superior
Court (2010) 50 Cal. 4th 372, 379, fn. 2.)
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A. We Decline to Resolve Father’s Challenge to the
Jurisdiction Finding on the Merits
“‘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 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.’”
(In re I.J. (2013) 56 Cal. 4th 766, 773 (I.J.), quoting In re Alexis E.
(2009) 171 Cal. App. 4th 438, 451 (Alexis E.); see also In re I.A.
(2011) 201 Cal. App. 4th 1484, 1491 [dependency law’s primary
concern is the protection of children] (I.A.).) There is no challenge
to the jurisdiction finding against Mother, which alone justifies
dependency jurisdiction over I.R. We therefore need not, and do
not, consider the sufficiency of the evidence to support the
juvenile court’s jurisdiction finding specifically adverse to
Father.4 (I.A., supra, at 1492 [“For jurisdictional purposes, it is
4 The Court of Appeal panel that decided In re Drake M.
(2012) 211 Cal. App. 4th 754 stated it would generally exercise its
discretion to consider a challenge to a jurisdiction finding that is
moot by virtue of the existence of another sustained finding if the
challenged finding “(1) serves as the basis for dispositional orders
that are also challenged on appeal [citation]; (2) could be
prejudicial to the appellant or could potentially impact the
current or future dependency proceedings [citations]; or (3) ‘could
have other consequences for [the appellant], beyond jurisdiction’
[citation].” (Id. at 762-763.) Accepting the In re Drake M. criteria
for argument’s sake, we opt not to exercise our discretion in this
case. There are no non-speculative future adverse consequences
Father may face as a result of the adverse jurisdiction finding
that he does not already face as a result of his underlying
criminal history. Father does challenge the child placement
aspect of the court’s disposition order, but considerations other
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irrelevant which parent created [the] circumstances” triggering
jurisdiction]; see also In re Briana V. (2015) 236 Cal. App. 4th
297, 308; In re Alysha S. (1996) 51 Cal. App. 4th 393, 397 [“[A]
jurisdictional finding good against one parent is good against
both. More accurately, the minor is a dependent if the actions of
either parent bring [the minor] within one of the statutory
definitions of a dependent”].)
B. The Juvenile Court’s Refusal to Give Father Custody
of I.R. is Supported by Substantial Evidence
When the court orders removal of a child from a custodial
parent at disposition, “the court shall first determine whether
there is a parent of the child, with whom the child was not
residing at the time that the events or conditions arose that
brought the child within the provisions of Section 300, who
desires to assume custody of the child.” (§ 361.2, subd. (a).)
Father was such a non-custodial parent in this case. “If that
parent requests custody, the court shall place the child with the
parent unless it finds that placement with that parent would be
detrimental to the safety, protection, or physical or emotional
well-being of the child.” (§ 361.2, subd. (a).) We review the
juvenile court’s placement orders using the substantial evidence
standard of review. (See, e.g., In re C.M. (2014) 232 Cal. App. 4th
1394, 1402; see also Conservatorship of O.B. (2020) 9 Cal. 5th 989,
995-996.)
Under that standard of review, the juvenile court’s decision
to refrain from placing I.R. with Father is adequately supported.
Father’s consistent history of committing criminal offenses and
being returned to custody for violating court orders provide good
reason to think I.R.’s safety would be in jeopardy because Father
would not be around to provide proper supervision for a child of
than his criminal history are also relevant to the juvenile
court’s placement decision.
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such a young age (and would fail to otherwise make appropriate
arrangements for I.R.’s care). Indeed, the record indicates that in
one prior instance, Father was arrested when he had temporary
custody of I.R. for visitation. (In re T.V. (2013) 217 Cal. App. 4th
126, 133 [“A parent’s past conduct is a good predictor of future
behavior”].) Father also failed to communicate with the
Department after being aware of the dependency proceedings,
and this provides further reason to believe he would not or could
not prioritize ensuring I.R.’s safety if given custody of the child.
In addition, I.R. was stable in a placement with the only people
he had ever really known as functional parents—the maternal
grandparents he called mom and papa—and the juvenile court
could properly infer that pulling I.R. out of that placement to live
with a largely unknown father and paternal grandmother would
be emotionally detrimental. (See Armando L. v. Superior Court
(1995) 36 Cal. App. 4th 549, 555.)
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DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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