In re Ayden T. CA2/2 ( 2023 )

Filed 7/27/23 In re Ayden T. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re AYDEN T. et al., Persons B317692
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. Nos.
21CCJP03437A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
ANGEL T.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mary E. Kelly, Judge. Affirmed.
Maureen L. Keaney, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel for Plaintiff and Respondent.
******
This case involves a father’s challenge to the juvenile
court’s exertion of dependency jurisdiction over his two young
sons on the ground that the father failed to ensure that the older
son received necessary medical care and services for his
diagnosed Attention-Deficit/Hyperactivity Disorder (ADHD).
Because substantial evidence supports jurisdiction, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Family
Angel T. (father) and Sarrah M. (mother) share two
children together—Ayden T. (born October 2013) and Aydrian T.
(born May 2016). Ayden was diagnosed with ADHD when he was
five years old and was prescribed medication.
II. The Custody Order
In May 2018, the family court issued an order (1) granting
mother and father joint physical custody of the boys, and (2)
granting mother sole legal custody, including the sole right to
make medical decisions for the boys. Mother took Ayden off his
ADHD medication.
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III. Mother Abandons the Children and Relinquishes
Custody to Father
In the spring of 2020, mother’s ongoing battle with mental
health issues (including experiencing hallucinations and
exhibiting delusional and paranoid behavior) as well as drugs
(including methamphetamine, PCP, and marijuana) began to
overwhelm her. In June 2020, mother became homeless, and
father—with the aid of paternal relatives—started taking sole
physical custody of the boys. In April 2021, mother returned to
father’s home with a notary and formally signed over custody of
the children to father, so she could “‘get herself in order.’” Mother
then walked out the door, never to be seen again.
The absence of ADHD medication and mother’s
abandonment started taking its toll on Ayden. Ayden started
suffering from depression, and engaging in behaviors such as
banging his head when he feels frustrated, experiencing
nightmares, constantly changing topics, jumping from one
thought to another, and “lying, stealing, and changing stories.”
Due to these behaviors, Ayden was not performing at his grade
level in school, and no individualized education plan had been
developed for him. Ayden’s behavioral problems also affected
Aydrian, who started to throw objects and fight when he was
around Ayden.
Prior to December 2021, father took no action to address
Ayden’s or Aydrian’s behavioral problems. Father did not seek
counseling or other services for either boy. Father did not
approach Ayden’s school about developing an individualized
education plan. Father did not try to get Ayden the medication
he needed for his ADHD, later explaining that he felt his “hands”
were “tied” by the prior family court custody order. Yet father
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also did not petition the family court to modify that prior custody
order to empower him to make medical decisions for his children,
proffering that he meant to do so but “due to Covid . . . just
postponed [his] going” to court. Father also did not take the boys
to get an annual check-up, to get their immunizations, or to visit
the dentist.
IV. Exertion of Dependency Jurisdiction
In July 2021, the Los Angeles Department of Children and
Family Services (the Department) filed a petition asking the
juvenile court to exert dependency jurisdiction over Ayden and
Aydrian. Although the boys first came to the Department’s
attention based on a referral alleging that father had “beat . . .
up” and “punched” Ayden, the Department was unable to
substantiate those allegations due to the absence of any
corroborative evidence and Ayden’s ADHD-related “lying
problems.” The Department’s investigation into the referral
nevertheless uncovered Ayden’s unaddressed medical needs.
Thus, the Department’s petition implored the court to assert
jurisdiction because (1) mother’s substance abuse history
rendered her “incapable of providing regular care” for the boys,
(2) mother’s mental and emotional problems rendered her
“incapable of providing” “regular care” for the boys, and (3)
mother and father “medically neglected” Ayden by “fail[ing] to
ensure that [he] enrolled in services to address” his ADHD
diagnosis. The Department further alleged that these allegations
demonstrated a “failure or inability” of the parents to “supervise
or protect” the children that placed both children at substantial
risk of serious physical harm, thereby rendering jurisdiction
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appropriate under Welfare and Institutions Code section 300,
subdivisions (b)(1) and (j).1
The juvenile court held a combined jurisdictional and
dispositional hearing on December 20, 2021. By that time, father
was “in the process of trying to obtain” an individualized
education plan for Ayden. He was also “in the process” of getting
Ayden’s medical insurance transferred to him, and had completed
an “intake” for services for Ayden.
Despite belated efforts to address some of Ayden’s
outstanding issues, the juvenile court nevertheless sustained the
above-alleged allegations involving mother and father.
Specifically, the court found a “sufficient basis” to sustain the
allegation of medical neglect against father “given the length of
time” and “delay” it took for father to obtain services for Ayden.
The court went on to remove Ayden and Aydrian from mother
and place them with father, and order family maintenance
services for father.
V. Appeal
Father filed this timely appeal.2
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
The Department also asked the court to exert jurisdiction
due to father’s failure to protect the children from mother’s
substance abuse and mental and emotional problems, but the
juvenile court struck those allegations as against father.
2 While this appeal has been pending, the Department filed a
subsequent petition alleging additional grounds for the exertion
of dependency jurisdiction (§ 342) and detained the children from
father.
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DISCUSSION
Father asserts that we must reverse the juvenile court’s
jurisdictional finding that father was medically neglectful for not
obtaining services to address Ayden’s ADHD.
As a threshold matter, the Department argues that father’s
jurisdictional challenge is not justiciable because the finding
father challenges was also sustained as to mother (as well as
other findings applicable only to mother), such that this finding—
as well as dependency jurisdiction over Ayden and Aydrian—will
remain intact no matter how we resolve father’s challenge to the
finding as to him. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491
[dependency jurisdiction attaches to the child, not a parent],
overruled on another ground in In re D.P. (2023) 14 Cal.5th 266,
283; In re D.P. (2014) 225 Cal.App.4th 898, 902 [“‘[A]s long as
there is one unassailable jurisdictional finding, it is immaterial
that another might be appropriate’”].) The Department is correct
that this appeal will not alter the children’s status as dependents
or the propriety of the specific finding father challenges as to
mother, but we have discretion to entertain father’s challenge
anyway and elect to exercise that discretion here because the
jurisdictional finding as to father may prejudicially affect him in
future dependency proceedings. (In re D.P. (2023) 14 Cal.5th 266,
285 [“Courts may consider whether the challenged jurisdictional
finding ‘could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings,’ or ‘“could
have other consequences for [the appellant], beyond
jurisdiction”’”]; ibid. [“A prior jurisdictional finding can be
considered by the Department in determining whether to file a
dependency petition or by a juvenile court in subsequent
dependency proceedings”].)
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Although the finding father challenges rests on two
statutory foundations—subdivision (b)(1) (as to Ayden) and
subdivision (j) (as to Aydrian) of section 3003—father challenges
the subdivision (j) basis solely on the ground that the predicate
subdivision (b)(1) finding is invalid. Thus, we focus solely on
subdivision (b)(1). Under that subdivision and as pertinent here,
a juvenile court may exert dependency jurisdiction over a child 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 parent’s “failure or inability . . . to adequately supervise or
protect the child.” (§ 300, subd. (b)(1)(A).) We review the juvenile
court’s findings of jurisdiction for substantial evidence—that is,
we review the record in the light most favorable to the court’s
findings, drawing all reasonable inferences from the evidence to
support those findings. (I.J., supra, 56 Cal.4th at p. 773.)
Substantial evidence supports the juvenile court’s finding
that Ayden is at substantial risk of serious physical harm due to
father’s negligent failure to protect him from the behaviors rooted
in his ADHD diagnosis. Between June 2020 (when mother
became homeless and left Ayden with father) and the December
2021 jurisdictional hearing, father had custody of Ayden. Father
knew of Ayden’s ADHD diagnosis and the problems—emotional,
educational, and physical—it caused. Yet except in the weeks
leading up to the jurisdictional hearing, father allowed Ayden’s
3 Subdivision (j) of section 300 is necessarily derivative of
other jurisdictional findings, as it authorizes the exercise of
dependency jurisdiction if (1) “[t]he child’s sibling has been
abused or neglected, as defined in subdivision . . . (b)” of section
300, and (2) “there is a substantial risk that the child will be
abused or neglected” under that subdivision. (§ 300, subd. (j); In
re I.J. (2013) 56 Cal.4th 766, 774 (I.J.).)
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condition to go untreated. Father did not provide Ayden with his
prescribed medication, did not take him to the doctor, did not
enroll him in services like therapy, and did not seek an
individualized education plan. Despite knowing mother was
living on the streets, at no time did father request a change order
from the family court for legal custody or, at a minimum,
authorization to provide Ayden with medical care for his
diagnosed ADHD. (Fam. Code, § 3003 [“Joint legal custody”
means both parents share the right and responsibility to make
decisions relating to health, education, and welfare of a child]; In
re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956 [parent
seeking modification of final custody determination must show
changed circumstances]; In re Marriage of Furie (2017) 16
Cal.App.5th 816, 826-827 [best interest standard, not change in
circumstances, governs modification of parenting authority, such
as orthodontic care, that does not rise to change in legal
custody].) Meanwhile, the symptoms of Ayden’s untreated ADHD
posed a substantial risk of serious harm to Ayden’s physical,
emotional, and educational well-being—he banged his head in
frustration, suffered with nightmares, made up stories, struggled
to focus, and fell behind in school. Further, because father’s
failure to seek an order from the family court to allow him to
obtain medication for Ayden is just one example of father’s failure
to provide—rather than the “sole[]” reason—the jurisdictional
finding in this case does not run afoul of the newly minted
limitation in subdivision (b)(2)(B) of section 300 that prohibits a
court from exercising dependency jurisdiction “solely” due to a
parent’s failure “to seek court orders for custody of the child.” (§
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300, subd. (b)(2)(B); In re L.B. (2023) 88 Cal.App.5th 402, 413-
415.)4
Father resists this conclusion with four arguments. First,
he argues that he was not “passive” or neglectful of Ayden’s needs
because he called the Department in 2019 and 2020 to report
mother’s neglect. This is irrelevant because the court’s
jurisdictional finding here independently rests on father’s
subsequent conduct in ignoring Ayden’s ADHD condition—to
Ayden’s detriment—while father had sole custody of Ayden in
2020 and 2021. Second, father argues that he was a “‘big
advocate’” for medicating Ayden and that the family dynamics
were “complex and insufficient to place cause on” father.
Regardless of whether father was a “‘big advocate’” for treating
Ayden’s ADHD condition with medication, father did not do
anything to obtain that treatment—he did not seek services for
Ayden, ask for a court order authorizing him to obtain
medication, or ask for an independent educational plan. Third,
father argues that he started addressing Ayden’s ADHD just
before the December 2021 jurisdictional hearing because he
applied for an independent educational plan, was “in the process”
of transferring insurance, and had completed intake for some
services for Ayden. While commendable, and although we look at
risk at the time of the jurisdictional hearing (see In re M.M.
(2015) 240 Cal.App.4th 703, 719), father’s last-minute efforts
have not ameliorated the risk to Ayden because Ayden is still
without his medication or services to address his ADHD. Fourth
and finally, father argues that it is wrong to characterize his
4 This new provision does not appear to apply at all in this
case, as it took effect on January 1, 2022—yet the jurisdictional
hearing in this case occurred in December 2021.
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inaction as neglectful passivity toward Ayden and Aydrian
because he was a “single parent” trying “to do his best to navigate
the best way to care for” them. While we appreciate the obstacles
father may have faced as a parent, where—as here—substantial
evidence supports the juvenile court’s findings, we must affirm
those findings rather than “exercise our independent judgment.”
(In re Joaquin C. (2017) 15 Cal.App.5th 537, 560; James B. v.
Superior Court (1995) 35 Cal.App.4th 1014, 1020-1021.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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