In re H.M. CA2/1 ( 2024 )

Filed 6/26/24 In re H.M. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re H.M., a Person Coming B331520
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 23CCJP01394)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JAVIER D.,
Defendant and Appellant.
APPEAL from the jurisdictional and dispositional orders
of the Superior Court of Los Angeles County, Lisa A.
Brackelmanns, Judge Pro Tempore. Affirmed.
Carol A. Koenig, under appointment by the
Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
H.M.’s presumed father, Javier D. (father), appeals from
the juvenile court’s jurisdictional and dispositional orders by
challenging the sufficiency of the evidence to support some of
those orders. H.M. is father’s fourth child. In previous
dependency cases, father lost custody of his other three children
in part because of his history of substance abuse and refusal to
complete court ordered substance abuse programs during the
reunification periods in those cases.
In this case, father does not contend the juvenile court
erred in exercising dependency jurisdiction based on mother’s
prior acts of violence in the presence of another of her children
but nevertheless requests review for substantial evidence of the
juvenile court’s findings that he has a history of substance abuse
and failed to protect H.M. from mother’s substance abuse. He
further argues that absent these findings, he would have been
“non-offending.” Father asserts these findings also influenced the
juvenile court’s dispositional orders insofar as the court removed
H.M. from his custody and ordered him to attend a substance
abuse program. We decline to exercise our discretion to consider
the jurisdictional findings father does challenge when it is
undisputed the juvenile court properly assumed jurisdiction over
H.M. based on mother’s conduct, and because even absent the
challenged findings, the record supports the dispositional orders.
We reject father’s challenge to the dispositional order
removing H.M. from his custody; substantial evidence supports
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that disposition. Finally, we conclude father’s request we remand
this matter to the juvenile court for further inquiry into H.M.’s
potential Indian ancestry is moot because the juvenile court has
already issued an order requiring that inquiry.
We affirm the juvenile court’s jurisdictional and
dispositional orders.
BACKGROUND
H.M., mother’s third child and father’s fourth child, was
detained at birth and placed in a foster home. We first describe
the proceedings involving H.M.’s half sibling and siblings. We
then turn to the current case.
1. The juvenile court terminated father’s parental
rights over H.M.’s half sibling, Daniel D.
In 2016, the Los Angeles County Department of Children
and Family Services (DCFS) filed a petition alleging, among
other conduct, that father had a current and past history of
substance abuse that put Daniel D. at risk of harm. (In re Daniel
D. (Aug. 3, 2017, B280440) [nonpub. opn.].) Father pleaded no
contest to allegations he had a then-current and history of
substance abuse, including marijuana and methamphetamine,
and father’s substance abuse placed Daniel at risk of serious
physical harm. (Ibid.) The juvenile court ordered father to
participate in drug and alcohol services, parenting classes, and
individual counseling. (Ibid.) Father did not reunify with
Daniel. The juvenile court terminated reunification services after
father failed to participate in court ordered programs. In 2018,
the juvenile court terminated father’s parental rights over
Daniel D.
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2. The juvenile court terminated mother’s and father’s
parental rights over H.M.’s siblings, K.M. and J.D.
In 2020 and 2021, DCFS filed separate cases, one involving
K.M. and the other J.D. In both cases, the juvenile court
sustained the following allegation with respect to father: Father
“has a history of substance abuse, including marijuana and
methamphetamines, and . . . is a current abuser of marijuana,
which renders the father incapable of providing regular
care . . . .”
In addition to these, the court sustained allegations
involving mother. The court sustained the allegation mother
exposed K.M. to violent altercations with maternal grandmother
on “numerous” occasions. Further, mother threatened to kill
maternal grandmother’s male companion in the presence of K.M.
The court also sustained the allegation that mother’s violence
placed J.D. and K.M. at risk of serious physical harm. The
juvenile court also found mother has mental and emotional
problems, including homicidal ideation, suicidal ideation,
adjustment disorder, a moderate intellectual disability, and
epileptic seizures, which endanger J.D.’s and K.M.’s physical
health and safety. Finally, the court sustained allegations
mother had a history of illegal drug use and currently abused
marijuana and benzodiazepine rendering her incapable of
providing care to J.D. and K.M.
The court declared K.M. and J.D. dependents of the court.
Father missed numerous drug tests during the reunification
period. On November 7, 2022, the court terminated mother’s and
father’s parental rights over the children.
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3. The current proceedings
a. Petition
In a petition filed April 25, 2023, DCFS alleged the
following under Welfare and Institutions Code section 300,
subdivisions (b)(1) and (j). Mother has a history of substance
abuse rendering her incapable of providing H.M. with regular
care. Father knew of mother’s substance abuse and failed to
protect H.M. H.M.’s siblings were dependents of the juvenile
court due to mother’s substance abuse and father’s failure to
protect them. Mother has mental and emotional problems,
including homicidal ideation, suicidal ideation, moderate
intellectual disability, and epileptic seizures. Mother threatened
to kill an unidentified male in the presence of H.M.’s sibling and
mother threatened to kill herself in the presence of H.M.’s sibling.
Mother’s moderate intellectual disability prevents mother from
providing regular care to H.M. Father has a history of abusing
marijuana and methamphetamine and currently abused
marijuana rendering him incapable of providing regular care for
the children. Father was convicted of possession of a controlled
substance and his substance abuse places the children at risk of
harm. DCFS also alleged under section 300, subdivision (j) that
mother exposed K.M. to violent altercations with K.M.’s maternal
grandmother and threatened to kill maternal grandmother’s
male companion in K.M.’s presence. Mother’s violent conduct
would endanger H.M.’s safety.
b. Information in DCFS’s reports
Mother and father were homeless. Although mother was
eligible to live at the Regional Center, she chose to live on the
streets with father. Mother suffered from epilepsy and a
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moderate intellectual disability. Mother could not manage her
daily needs without assistance. Mother’s verbal comprehension
and perceptual reasoning were “extremely” low and her cognitive
ability was moderately deficient. During an interview with a
social worker, mother was unable to remember her name. A
representative of the Regional Center indicated the Regional
Center had been working with mother and father for several
years, but both consistently failed to follow through with
referrals.
Father was convicted of attempted murder in 1997 and
possession of a controlled substance in 2018. Father described
the attempted murder as follows: He “was walking and some
individuals were giving him trouble. He stated they approached
him aggressively and stated, ‘Fuck Mexicans!’ Father claimed he
needed to respond and began to shoot them.” (Boldface omitted.)
When interviewed by a social worker (on an unspecified
date), father admitted smoking marijuana, but indicated he
had not done so in two weeks because he was seeking
employment. Father admitted to a history of smoking
methamphetamine “several years ago” and possession of
methamphetamine at the time of H.M.’s detention. (Boldface
omitted.) In a subsequent interview, father denied ever using
methamphetamine.
Father admitted another child (Daniel) was removed from
his custody, but he believed it was “the mother’s fault.” (Boldface
omitted.) Father admitted he served 14 years in prison for
attempted murder. Father refused to test for controlled
substances unless the court ordered testing.
The court had ordered mother and father to have nine
hours visitation per week. Father stated that he “ ‘barely has
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time’ ” for the visits. Mother and father refused to sign a
visitation schedule prepared by the social worker. Mother and
father visited two hours a week and declined additional visiting
time. They reported they wanted to secure housing prior to
having additional visits.
Mother tested for controlled substances three times during
her pregnancy with H.M.; these tests were negative. Mother’s
obstetrician reported mother attended her scheduled
appointments and mother and father showed “devotion to turn
things around in their lives, for themselves and ultimately for
their newborn daughter [H.M.].” There is no indication that
mother’s obstetrician was aware of mother’s and father’s prior
dependency cases or the allegations in the current case.
After the jurisdictional hearing and in advance of the
dispositional hearing, father tested one time for controlled
substances. That test was negative.
c. The juvenile court sustains the petition and orders
H.M. removed from mother’s and father’s custody
The juvenile court sustained the petition “as plead” [sic],
finding H.M. a dependent of the juvenile court.
Neither mother nor father appeared at the dispositional
hearing. The court asked father’s counsel why father was not
present to which counsel responded, “I personally do not know.”
Father’s counsel requested a case plan that included “parenting
classes, Narcotics Anonymous, a drug program, and random drug
testing.” Counsel later requested, “I would just ask that it just be
the drug program, 12-step, parenting and the random weekly
testing and nothing else.” Father’s counsel stated father was
seeking employment.
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The court ordered no reunification services for mother. The
court ordered reunification services for father and explained, “It
is going to be very challenging for him to demonstrate to the
court in six months that the child can be returned to him, but at
least he’s making some efforts now. He has tested negative, and
he’s trying to get housing and a job.” The court ordered father to
participate in counseling, a full drug and alcohol treatment, on-
demand drug testing, and a 12-step program.
The court found by clear and convincing evidence that it
was necessary to remove H.M. from mother’s and father’s care,
and there were no reasonable means to protect H.M. if she
remained in mother’s and father’s custody. The court described
mother and father’s relationship as “codependency.” Father
appealed from the jurisdictional and dispositional orders. Mother
did not appeal.
DISCUSSION
A. Father Does Not Challenge the Juvenile Court’s
Assumption of Jurisdiction Over H.M. Based on
Mother’s Conduct and We Decline To Consider
Father’s Challenge Only to the Findings Against Him
Father does not argue the juvenile court erred in exercising
dependency jurisdiction over H.M. He does not challenge
jurisdictional findings that mother’s mental and emotional
problems, “moderate” intellectual disability, and past violent
conduct toward maternal grandmother and maternal
grandmother’s male companion in the presence of H.M.’s older
sibling, K.M., placed H.M. at substantial risk of suffering serious
physical harm. He challenges only the jurisdictional findings he
abused substances and failed to protect H.M. from mother’s
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substance abuse. Father also argues his past substance abuse
does not present a current risk to H.M. More specifically, he
contends, “If a substance abuse history alone was a sufficient
basis for dependency jurisdiction, there would be no point in
rehabilitation or reunification services as one’s children could be
later removed solely on the basis of the history of previous
substance abuse.” Father, however, identifies no evidence he was
rehabilitated after the juvenile court sustained substance abuse
findings dating back to 2016, and the record shows he did not
successfully complete ordered reunification services in his prior
cases, including participation in substance abuse programs.
To repeat, father does not dispute that the juvenile court
properly assumed jurisdiction over H.M. based on mother’s
conduct. “As a result of this focus on the child, it is necessary
only for the [juvenile] court to find that one parent’s conduct has
created circumstances triggering [Welfare and Institutions Code]
section 300 for the court to assert jurisdiction over the child.
[Citations.] . . . For jurisdictional purposes, it is irrelevant which
parent created those circumstances. A jurisdictional finding
involving the conduct of a particular parent is not necessary for
the court to enter orders binding on that parent, once dependency
jurisdiction has been established. [Citation.] As a result, it is
commonly said that a jurisdictional finding involving one parent
is ‘ “good against both. . . . ” ’ [Citation.] For this reason, an
appellate court may decline to address the evidentiary support
for any remaining jurisdictional findings once a single finding has
been found to be supported by the evidence. (In re I.A. (2011)
201 Cal.App.4th 1484, 1491–1492; see also In re Briana V. (2015)
236 Cal.App.4th 297, 308.)
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Father argues we should nonetheless review the
jurisdictional findings regarding his substance abuse and failure
to protect against mother’s substance abuse because those
findings affected the juvenile court’s disposition. He reasons that
absent the jurisdictional findings regarding his substance abuse
and failure to protect H.M. as to mother’s substance abuse, (1) he
would be “non-offending” and “it is likely that at disposition the
court would not have removed H.M. from father”; and (2) the
court would not have required him to attend a substance abuse
program. Father cites no evidentiary support for his contention
that absent the challenged jurisdictional findings, the court
would have changed its dispositional orders.
In crafting a disposition, a juvenile court considers the best
interests of the child, and thus may determine custody and
include programs to serve those interests and remedy the
problems that led to the court’s exercise of dependency
jurisdiction in the first place. (In re Rodger H. (1991)
228 Cal.App.3d 1174, 1182 [“Thus, whether the parents could
understand Rodger’s medical needs tended to explain why they
were unable to properly meet those needs. Similarly, the
transportation problems affected Rodger’s medical needs because
his parents were unable to get him to medical appointments. The
housing situation had a similar effect, because the family’s
frequent moves without a forwarding address made it difficult for
the social service agencies to follow up on Rodger’s needs.”]; see
also In re D.M. (2015) 242 Cal.App.4th 634, 647 [“At disposition
the juvenile court has broad discretion to make ‘all reasonable
orders for the care, supervision, custody, conduct, maintenance,
and support of the child.’ ”].)
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Substantial evidence supported removing H.M. from
mother’s and father’s care when father lived with mother in the
past and was unable to protect H.M.’s sibling from mother’s
violent conduct. (See Background, part 2, ante.) With respect to
father’s challenge to the order requiring him to participate in a
substance abuse program, father ignores that at the dispositional
hearing, his own counsel requested father be ordered to
participate in such a program and submit to drug testing. He
also ignores that the juvenile court could reasonably find it was
in H.M.’s best interests he attend such a program given his
extended history of substance abuse causing him to lose parental
rights over his three other children and suffer a criminal
possession conviction.
B. Substantial Evidence Supports the Juvenile Court’s
Removal Order
Father argues there was no substantial evidence to support
removing H.M. from his care. Father also argues the juvenile
court could have returned H.M. to father’s custody with an order
that father not leave H.M. alone with mother.
“We review a dispositional order removing a child from a
parent for substantial evidence, ‘ “keeping in mind that the trial
court was required to make its order based on the higher
standard of clear and convincing evidence.” ’ [Citation.]
‘[A]ppellate review of the sufficiency of the evidence in support of
a finding requiring clear and convincing proof must account for
the level of confidence this standard demands.’ [Citation.] In
applying this standard of review, ‘the question before the
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true.’ [Citation.]
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We view the record in the light most favorable to the prevailing
party and give due deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts in the
evidence, and drawn reasonable inferences from the evidence.”
(In re M.V. (2022) 78 Cal.App.5th 944, 960.)
Substantial evidence supported H.M.’s removal from
mother’s and father’s care when father continued to live with
mother notwithstanding mother’s past violent conduct, including
threatening in K.M.’s presence to kill herself and maternal
grandmother’s male companion. Mother also engaged in violent
altercations with maternal grandmother in K.M.’s presence.
Father did not testify at the dispositional hearing and the record
contains no evidence that father could protect H.M. from mother’s
violent behavior. The fact that father failed in the past to protect
K.M. from mother’s violent conduct supports the inference he also
could not protect H.M., as well as the juvenile court’s finding that
removal from both parents was necessary.
On appeal, and for the first time, father argues the juvenile
court could have ordered he never leave H.M. alone with mother.
Father offers no evidence to support this argument. There is no
evidence father would have agreed to an order that prevented
him from leaving H.M. alone with mother because such an order
would have seriously impeded his ability to work outside the
home, and he does not contend he was seeking remote
employment. Additionally, there was no evidence social workers
could have monitored mother’s and father’s compliance with such
an order. Further, as a newborn, H.M. would have been unable
to provide information as to compliance with an order not to leave
her alone with mother thus leaving H.M. all the more at risk.
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Finally, although father claims he no longer abuses
marijuana or drugs, he does not dispute his history of substance
abuse causing him to lose parental rights over Daniel D., K.M.,
and J.D. He similarly fails to address the many missed tests
during the reunification period with K.M. and J.D.
The record before the juvenile court thus supports the
juvenile court’s finding that H.M. would not be safe in his care.
Father relies only on evidence favorable to him, which is
inconsistent with our standard of review. Additionally, father
claimed he “ ‘barely ha[d] time’ ” to visit H.M., raising concerns
that he also would not have had time to care for both mother’s
substantial needs and H.M. if H.M. were in his custody.
C. Father’s Assertion of Violation of the Indian Child
Welfare Act Is Moot1
ICWA “protects the interests of Indian children and
promotes the stability and security of Indian tribes by
establishing minimum standards for removal of Indian children
from their families, and by permitting tribal participation in
dependency proceedings.” (In re A.W. (2019) 38 Cal.App.5th 655,
662.) Under state law implementing federal ICWA requirements,
the juvenile court and DCFS “have an affirmative and continuing
duty to inquire whether a child for whom a petition under
[Welfare and Institutions Code] Section 300 . . . has been filed, is
or may be an Indian child.” (Welf. & Inst. Code, § 224.2,
1 We grant respondent’s unopposed request to take judicial
notice of the juvenile court’s order dated April 25, 2024. (See
Evid. Code, § 452, subd. (d).) We decline DCFS’s request to take
judicial notice of an order dated January 23, 2024 because DCFS
does not demonstrate its relevance to this appeal.
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subd. (a).) An “ ‘Indian child’ ” is defined as an “unmarried
person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); Welf. & Inst. Code, § 224.1, subd. (a)
[adopting federal definition]).
“If a child is removed from parental custody, the county
welfare department ‘has a duty to inquire whether that child is
an Indian child. Inquiry includes, but is not limited to, asking
the child, parents, legal guardian, Indian custodian, extended
family members, others who have an interest in the child, and
the party reporting child abuse or neglect, whether the child is, or
may be, an Indian child and where the child, the parents, or
Indian custodian is domiciled.’ ([Welf. & Inst. Code,] § 224.2,
subd. (b).)” (In re Ezequiel G. (2022) 81 Cal.App.5th 984, 998.)
Here, mother and father denied having Indian ancestry.
Father represented that no one in his family has Indian ancestry
because they are Mexican. Mother also reported no one in her
family has Indian ancestry. When the juvenile court inquired
further, father repeated he has no Indian ancestry. When asked
by the court, mother’s counsel indicated mother has no Indian
ancestry. In 2016 and 2021, the juvenile court found it had no
reason to know H.M.’s siblings and half sibling were Indian
children. In June 2023 in the current case, the court found ICWA
did not apply.
Subsequently, on April 25, 2024, while this appeal was
pending, the juvenile court issued an order requiring mother and
father to provide DCFS with contact information for all known
and available extended family members and ordering DCFS to
interview those family members about whether H.M. is an Indian
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child. Because we no longer can provide effective relief, father’s
ICWA challenge is moot. (In re Baby Girl M. (2022)
83 Cal.App.5th 635, 639.)
In his opening brief, father argues DCFS did not fulfill its
statutorily mandated duty to inquire of extended family members
about ICWA and the case should “be remanded for a proper
ICWA inquiry.” In his reply brief, father concedes the juvenile
court ordered the appropriate ICWA inquiry. Father still
requests we vacate the juvenile court’s June 2023 finding that
ICWA does not apply. “We see no need to order any ICWA
findings vacated because ICWA-related obligations are
continuing duties; that means earlier ICWA-related findings are
subject to change and no order vacating an earlier finding is
necessary here.” (In re Baby Girl M., supra, 83 Cal.App.5th at
p. 639, fn. 2.)
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J. WEINGART, J.
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