In re J.N. ( 2021 )

Filed 4/2/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.N., a Person Coming Under B308879
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP02416)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
V.N.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Emma Castro, Judge Pro Tempore. Affirmed in part,
reversed in part and vacated in part.
John P. McCurley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
Appellant V.N. (Father) challenges the juvenile court’s
jurisdictional finding as to Father in dependency proceedings
regarding his now seven-year-old son, J.N., as well as the court’s
dispositional order removing J.N. from Father’s custody and
denying Father reunification services. Father contends the
challenged jurisdictional finding and removal order are solely
based on Father’s incarceration and criminal record, and that such
evidence is insufficient to support either jurisdiction or removal.
On the record before us, we agree. Accordingly, we vacate the
juvenile court’s jurisdictional finding as to Father and reverse the
dispositional order removing J.N. from Father’s custody.
Father further argues the trial court erred in denying him
reunification services based on a detriment finding under Welfare
and Institutions Code section 361.5, subdivision (e).1 We conclude
section 361.5 is inapplicable and that Father was not entitled to
reunification services, regardless of any potential detriment to J.N.
therefrom. We nevertheless vacate the court’s detriment finding,
because it could prejudice Father in future dependency proceedings.
FACTS AND PROCEEDINGS BELOW
J.N., born in June 2013, is the son of C.D. (Mother)2 and
Father. Father has been incarcerated since August 2019, and is
not eligible for parole until February 2023.
1 All further statutory references are to the Welfare and
Institutions Code.
2 Mother is not a party to this appeal.
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A. Circumstances Leading to Dependency
Proceedings Below
The instant dependency proceedings arose from a referral
generated in April 2020 when Mother and J.N.’s newborn
half sibling, R.B., tested positive for marijuana at R.B.’s birth.
Mother and R.B., along with J.N.’s two other maternal half siblings,
lived with the maternal grandmother. A maternal aunt told
authorities that Mother, maternal grandmother, and Mother’s
boyfriend (the father of infant R.B.) all smoked marijuana inside
the home. The maternal aunt also described a recent physical
altercation between Mother and her boyfriend.
B. Initial Petition and Detention Report
On April 30, 2020, the Los Angeles County Department of
Children and Family Services (DCFS) filed a section 300 petition
alleging J.N. and his half siblings were at risk of serious physical
harm as the result of the violence and substance abuse of Mother
and her boyfriend, as well as Mother’s history of mental and
emotional problems. The petition made no allegations against
Father, who was incarcerated at the time of the referral.
The social worker’s detention report did describe an
inconclusive 2015 referral involving Father as part of the family’s
“prior child welfare history.” (Capitalization omitted.) According
to the referring party, in late December 2015, Mother and J.N. went
to Father’s residence to spend the night, and Mother and Father
got into an argument, during which Father punched Mother in
the face twice, causing visible injuries to her lip and left eye. The
description in the report does not indicate where J.N. was during
this incident, although he was “with [M]other” that night. The
reporting party claimed that Mother had obtained a restraining
order against Father in 2014 after a previous incident of domestic
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violence. The allegations in the referral were deemed
“[i]nconclusive,” as Mother and Father presented conflicting
versions of the events, and the prior restraining order the
referring party referenced “was not verified.”
At the detention hearing on May 5, 2020, the court made
prima facie findings on the petition and detained the children.
Father was not present or represented by counsel at the hearing.
The court deferred paternity findings regarding J.N. until Father
could be present.
C. Amended Petition and Jurisdiction / Disposition
Report
In November 2020, DCFS filed an amended section 300
petition to allege J.N. was at risk of serious physical harm as the
result of Father’s “violent criminal history.” The petition did not
reference or rely on the 2015 inconclusive referral alleging domestic
violence by Father, but rather relied exclusively on a list of his
convictions and his associated incarceration. As supporting
evidence for the allegations, the jurisdiction / disposition report
attached Father’s court dockets and detailed the results of his
California Law Enforcement Telecommunications System report.
According to these sources, Father was convicted in 2014 of
threatening a crime with intent to terrorize and exhibiting a deadly
weapon (other than a firearm), in 2016 of assault with a deadly
weapon (other than a firearm), and in March 2019 of causing a
fire of an inhabited structure/property and assault with a deadly
weapon with force and by means likely to produce great bodily
injury. The 2019 convictions, both of which occurred while Father
was on probation for prior crimes, resulted in the eight-year prison
sentence he is currently serving. Father’s record also included
an entry consistent with some law enforcement involvement in the
incident described in the 2015 inconclusive referral. Specifically, it
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noted an arrest for inflicting corporal injury on a spouse or
cohabitant on December 28, 2015, which did not result in any
further court action for a “reason unknown.” The report did not
include any further information regarding the circumstances of
any of Father’s crimes.
The report also included Mother’s statements that she had
prevented Father from being a part of J.N.’s life since the 2015
incident. Mother indicated that Father “would look for [J.N.]
but she did not allow any contact with him due to his aggressive
behavior.”
D. Jurisdiction / Disposition Hearing
At the combined jurisdiction and disposition hearing in
November 2020, Father was represented by counsel and appeared
via phone. In response to questions from the court to establish
paternity, Father indicated that he never lived with Mother, but
that after J.N. was born in June 2013, he would visit Mother at her
home to help care for J.N. He further stated that he took J.N. to his
home for a week after J.N. was first born and then “every couple of
days” during that time period. The court found Father to be J.N.’s
presumed father and declared J.N. a dependent of the court.
The court sustained the marijuana-related jurisdictional
allegations against Mother with certain amendments. The court
also sustained the jurisdictional allegations against Father as pled,
noting Father had “very serious convictions of crimes that impact
child safety and a parent’s safety while caring for their child,”
including “one . . . for domestic violence.” Because it “was not clear
to the court whether [Father] made a request for custody,” “in an
abundance of caution,” the court found by clear and convincing
evidence that placement with Father would be detrimental to J.N.
and removed J.N. from Father. The court placed J.N. with Mother.
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The court also denied Father reunification services under
section 361.5, subdivision (e)(1). Section 361.5 sets forth certain
circumstances under which a court may deny a parent reunification
services to which the parent is otherwise entitled. (See § 361.5,
subds. (b) & (e).) The court found such circumstances existed
here, because offering reunification services to Father would be
detrimental to J.N. and Father was incarcerated. (See § 361.5,
subd. (e)(1).)
Father timely appealed.
DISCUSSION
A. The Record Does Not Contain Substantial
Evidence to Support the Court’s Jurisdictional
Finding as to Father
Father first challenges the court’s jurisdictional finding as
to him.
As a preliminary matter, we reject DCFS’s argument that,
because the court’s unchallenged findings involving Mother create
an independent basis for jurisdiction, we should not address the
jurisdictional argument in Father’s appeal. “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 Alexis E. (2009) 171 Cal.App.4th
438, 451.) However, we generally will exercise our discretion and
reach the merits of a challenge to any jurisdictional finding when,
as DCFS acknowledges is the case here, the finding serves as the
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basis for a dispositional order also challenged on appeal. (See, e.g.,
id. at p. 454.) We therefore consider the merits of Father’s appeal.
In reviewing a challenge “to the sufficiency of the dependency
court’s jurisdictional findings, our power begins and ends with
a determination as to whether substantial evidence exists,
contradicted or uncontradicted, supporting the dependency court’s
determinations. We review the evidence in the light most favorable
to the dependency court’s findings and draw all reasonable
inferences in support of those findings. [Citations.] Thus, we do not
consider whether there is evidence from which the dependency
court could have drawn a different conclusion but whether there is
substantial evidence to support the conclusion that the court did
draw.” (In re Noe F. (2013) 213 Cal.App.4th 358, 366.)
A child may come within the jurisdiction of the juvenile court
under subdivision (b) of section 300 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.” (§ 300,
subd. (b)(1).) In order to sustain a petition under section 300,
a significant risk to the child must exist “ ‘at the time of the
jurisdiction hearing.’ ” (In re David M. (2005) 134 Cal.App.4th 822,
829; see In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (Rocco M.)
[“the question under section 300 is whether circumstances at the
time of the hearing subject the minor to the defined risk of harm,”
italics omitted].) DCFS “has the burden of showing specifically
how the minor[ ] ha[s] been or will be harmed.” (In re Matthew S.
(1996) 41 Cal.App.4th 1311, 1318.) Evidence of past conduct may
be probative of current conditions, and may assist DCFS in meeting
this burden. (Ibid.; In re D.L. (2018) 22 Cal.App.5th 1142, 1146.)
However, DCFS must establish a nexus between the parent’s past
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conduct and the current risk of harm. (See In re Roger S. (2018) 31
Cal.App.5th 572, 583.)
Here, the sole evidentiary basis for the jurisdictional finding
as to Father is his incarceration and criminal record. Father argues
substantial evidence does not support an actual nexus between this
criminal history and any specifically identified, substantial, current
risk of serious physical harm to J.N. 3 We agree.
DCFS presented evidence that Father’s record includes
convictions for violent crimes and convictions for crimes committed
while Father was already on probation. This evidence supports
a reasonable inference that there is a substantial risk Father will
commit crimes—even violent crimes—in the future. But that is not
the same as a substantial risk J.N. will be harmed. Although it is
possible that evidence of a parent’s violent criminal record could
support a reasonable inference of risk to the parent’s child, the
evidence in this record does not. Nothing in the record suggests
any of Father’s crimes were against children or involved children.
The record also does not support that Father’s criminal conduct
ever placed J.N. in danger during the approximately two years he
appears to have been involved in J.N.’s life. And although DCFS
3 The mere fact of a parent’s incarceration is not sufficient
evidence to provide a basis for a juvenile court’s assertion of
jurisdiction. (In re S. D. (2002) 99 Cal.App.4th 1068, 1077 [“[t]here
is no ‘Go to jail, lose your child’ rule in California”].) Under
certain circumstances, an incarcerated parent’s failure to ensure
that a child is protected from an abusive situation of which the
incarcerated parent knew or should have known, and/or a parent’s
inability to make proper arrangements for the care of a child during
the parent’s incarceration, may provide a basis for jurisdiction.
(See In re James C. (2002) 104 Cal.App.4th 470, 483–484; see also
§ 300, subd. (g).) Neither such situation is alleged in the petition
or reflected in the record in this case.
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may be correct that Father exposing J.N. to his criminal ways could
put J.N. at risk, the record does not provide any nonspeculative
basis for the court to conclude that Father is likely to do so. For
example, nothing in the record suggests Father ever exposed J.N.
(or any other child) to his criminal activities, that he ever provided
J.N. (or any other child) access to weapons or other dangerous
instruments of his crimes, or that J.N. (or any other child) was even
in Father’s care at the time Father committed the crimes for which
he was convicted.4 Nor does the record reflect that Father ever
fought Mother’s efforts, beginning in late December 2015, to shield
J.N. from any exposure to Father and Father’s lifestyle.
Thus, although we acknowledge that, on an abstract level,
violent crime is incompatible with child safety, DCFS cannot
use such generalities to satisfy its burden of proving an
“identified, specific hazard in the child’s environment” that poses
a substantial risk of serious physical harm to him. (Rocco M.,
supra, 1 Cal.App.4th at p. 824.) Without more evidence than was
presented in this case, such future harm is merely speculative. Our
conclusion that Father’s criminal history did not put J.N. at risk
at the time of the jurisdictional hearing is further bolstered by the
fact that Father was not even eligible for parole until more than
two years after that time.
Nor do we accept that a parent’s violent criminal record,
without more, necessarily establishes that a parent has a violent
disposition sufficient to establish the requisite risk of physical harm
to a particular child. Certainly, a parent’s past violent criminal
4 The record does not support the court’s characterization
of Father’s criminal past as including “very serious convictions of
crimes that impact child safety and a parent’s safety while caring
for [the] child,” including “one . . . for domestic violence.”
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conduct will be highly relevant in determining the likelihood of
violence to a child in the future. But DCFS must still prove some
nexus between the past violence and some likely future violence
that could endanger the child. Here, it did not. For example,
evidence of domestic violence might, under certain circumstances,
support such a nexus. But here, Father was not convicted of any
crime involving domestic violence, DCFS deemed the 2015 referral
alleging domestic violence to be inconclusive, and there was no
evidence of the restraining order the referring party claimed
Mother had obtained against Father. There is thus no evidence
to connect Father’s violent criminal history with any likelihood of
future domestic violence that could pose a danger to J.N.
Therefore, the record does not contain substantial evidence
to support the court’s jurisdictional finding based on allegations
regarding Father. We therefore vacate the juvenile court’s
jurisdictional finding as to Father.
B. The Record Does Not Contain Substantial
Evidence to Support the Removal of J.N.
From Father
Father also challenges the court’s removal order on the
bases that (1) the court applied the incorrect statute (section 361.2,
subd. (a)), and (2) the record does not contain substantial evidence
to support the findings necessary for removal under the correct
statute.5 (See Kimberly R. v. Superior Court (2002) 96 Cal.App.4th
5 DCFS contends Father forfeited these arguments because
he failed to challenge the court’s removal order below. As to
Father’s argument regarding the legal basis for the court’s removal
order, pure legal claims related to a court acting in excess of its
jurisdiction generally are not subject to the forfeiture doctrine. (See
In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) As to Father’s
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1067, 1078 [substantial evidence review of removal findings].)
We agree on both points.
Section 361, subdivision (d) is the applicable statute
here and sets forth the legal findings necessary for the juvenile
court to remove J.N. from Father. (See § 361, subd. (d).) In its
written minute order, the juvenile court cited several sections as
the basis for removing J.N. from Father—including section 361,
subdivision (d)—but in substance applied a different statute,
which Father correctly argues does not apply. We need not further
address this error, however, as we conclude the record does not in
any case contain substantial evidence to support removal under the
correct section 361, subdivision (d) standard.
Section 361, subdivision (d) permits removal from a parent
with whom the child did not reside when the petition was filed
only upon a finding by clear and convincing evidence of a current
“substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the child,” were the parent “to
live with the child or otherwise exercise the . . . right to physical
custody.” (§ 361, subd. (d).) When applying this test to an
incarcerated parent, the question cannot be whether such danger
would exist, were the child literally to “live” with the parent during
the parent’s incarceration, as this is not a realistic possibility—
a child cannot “live” at an adult prison. Nor could the fact of a
parent’s incarceration at the time of disposition provide the basis
for a detriment finding in any event. (See In re V.F. (2007) 157
substantial evidence argument, a claim that the evidence is
insufficient to support a disposition order in a dependency matter
generally is not forfeited even if not raised below. (In re R.V. (2012)
208 Cal.App.4th 837, 848.)
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Cal.App.4th 962, 971 (V.F.).)6 Indeed, “cases addressing removal
by reason of a custodial parent’s incarceration[ ] under section 300,
subdivision (g) . . . [for failure to make adequate plans for the child’s
care during the parent’s incarceration] have held that ‘[t]here is
no “Go to jail, lose your child” rule in California[,]’ ” and “[w]e
do not believe the Legislature intended” other code sections “to
be interpreted so as to permit [such] a result [which] the courts
have held to be unacceptable under section 300[, subdivision] (g).”
(In re Isayah C. (2004) 118 Cal.App.4th 684, 696 (Isayah C.).)
The test must therefore be whether Father “otherwise
exercis[ing] [his] . . . right to physical custody” (§ 361, subd. (d))—
for example, by making arrangements for J.N.’s living situation
while Father is still in prison—would create the requisite
substantial risk.7 (See Isayah C., supra, 118 Cal.App.4th at p. 700
6 We acknowledge that, in reaching this conclusion,
the court in V.F., supra, 157 Cal.App.4th 962, was reviewing
a detriment finding under section 361.2, subdivision (a), not
section 361, subdivision (d). (V.F., supra, at p. 971.) Although
there may be circumstances in which the differences between
these two detriment standards could yield different results (see
id. at p. 973), no such differences would render incarceration
an appropriate basis for a detriment finding under one standard
but not the other. (Compare § 361.2, subd. (a) [placement with
parent would be “detrimental to the safety, protection, or physical
or emotional well-being of the child”], with § 361, subd. (d)
[placement with parent would create “substantial danger to
the physical health, safety, protection, or physical or emotional
well-being of the child”].)
7 The removal statute also specifically addresses
circumstances involving an institutionalized parent with whom
the child lived at the time the dependency petition was filed, and
provides that a child may be removed from such a parent “who has
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[“a parent may have custody of a child, in a legal sense, even
while delegating the day-to-day care of that child to a third party
for a limited period of time”].) Nothing in the record suggests that
Father intended to exercise his rights to physical custody over
J.N., let alone how his doing so would put J.N. in physical danger.
Nor, for that matter, does the evidence DCFS offered to support
its request for removal from Father—the same evidence it offered
to establish jurisdiction as to Father—support a finding that there
would be the requisite danger to J.N. if he lived with Father after
Father is released from prison. We therefore reverse the court’s
dispositional order to the extent it removes J.N. from Father.
C. The Court’s Detriment Finding under
Section 361.5, Subdivision (e)(1) Must Be
Vacated
Father asserts the juvenile court erred in denying him family
reunification services under one of section 361.5’s so-called services
“bypass” provisions.
Family reunification services “shall only be provided when
a child has been placed in out-of-home care, or is in the care of
a previously noncustodial parent under the supervision of the
juvenile court.” (§ 16507, subd. (b); see also § 16507, subd. (a)
[“[f]amily reunification services shall be provided or arranged for
by county welfare department staff in order to reunite the child
separated from his or her parent because of abuse, neglect, or
exploitation,” italics added].) Section 361.5 sets forth, inter alia,
various situations in which the court may deny a parent
been incarcerated or institutionalized” if that parent “cannot
arrange for the care of the minor.” (§ 361, subd. (c)(5).) Of course,
because J.N. did not live with father at the time the petition was
filed, this section is inapplicable.
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reunification services to which the parent is otherwise entitled.
(See § 361.5, subd. (a)(1) [“[f]amily reunification services, when
provided, shall be provided as follows,” italics added]; see § 361.5,
subds. (b) & (e).)
The court relied on one such bypass provision in denying
Father services. (See § 361.5, subd. (d) [involving incarcerated
parents].) But section 361.5 and its bypass provisions are
inapplicable where, as here, “at the disposition hearing, a child
does not enter foster care, but is placed with a [previously custodial]
parent.” (In re T.W. (2013) 214 Cal.App.4th 1154, 1165; In re A.C.
(2008) 169 Cal.App.4th 636, 650.) This is because, under such
circumstances, neither parent was entitled to reunification services
to begin with, so a bypass of such entitlement is unnecessary.
(See § 16507, subd. (b); § 361.5, subd. (a)(1).) Therefore, Father
is correct that the court erred in relying on section 361.5 to bypass
a grant of reunification services, but that is only because the court
was not authorized to grant Father such services in the first place.
Although the court’s error did not deprive Father of
reunification services, it could potentially prejudice him in future
dependency proceedings. Specifically, the court made the requisite
finding to deny services under section 361.5, subdivision (e)(1)
that reunification for Father would be detrimental to J.N. This
finding could “constitute a sufficient basis for termination of
parental rights” if J.N. were ultimately removed from both parents
and fails to reunify. (§ 366.26, subd. (c)(1).) Because there is a
nonspeculative risk that the erroneous detriment finding could
prejudice Father later in this case, we vacate it.
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DISPOSITION
The juvenile court’s jurisdictional finding as to Father is
vacated, the detriment finding as to Father under section 361.5,
subdivision (e)(1) is vacated, and the order removing J.N. from
Father’s custody is reversed.
In all other respects, the orders are affirmed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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