In re Gizelle D. CA2/2

Filed 6/2/22 In re Gizelle D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 GIZELLE D., a Person B312601
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP01942B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JERMAINE D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Affirmed.
Andre F. F. Toscano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
******
A father awaiting trial on criminal charges for molesting
his stepchildren appeals the juvenile court’s order limiting his
educational and developmental decisionmaking rights over his
biological, teenage daughter. We find no abuse of discretion in
the court’s order. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Jermaine D. (father) and Nicole D. (mother) are parents to
daughter Gizelle (born January 2005).1 Mother also has two
adult children with other men: Kierra and Jonathan.
Though father “consider[ed] Jonathan and Kierra” to be
“[his] children,” father sexually abused each of them for much of
their childhoods.2 Between 2012 and 2019, when Kierra was age
1 Father and mother are also parents to fraternal twins (born
October 2006), but neither the twins nor their mother are parties
to this appeal.
2 Father also sexually abused his sister when they were
minors.
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10 to 17, father forcefully kissed her with his tongue; he touched,
caressed, squeezed, and tried to suck her breasts nearly every
day, claiming that he was examining her for breast cancer; he
regularly forced Kierra to masturbate him; and he orally
copulated her, even when she was asleep. Gizelle walked in on
father fondling Kierra’s breasts on one occasion. When Jonathan
was around the same age that Kierra was when she suffered
abuse by father, father repeatedly molested Jonathan by making
him watch pornography while masturbating father; by making
Jonathan orally copulate father; and by attempting to anally
penetrate Jonathan. Kierra and Jonathan told their mother
several times that father was abusing them, but mother refused
to believe them. They also told their siblings what father had
done to them.
II. Procedural Background
A. Petition, jurisdiction, and removal
Pursuant to a petition filed in April 2020 by the Los
Angeles Department of Children and Family Services (the
Department), the juvenile court exerted dependency jurisdiction
over Gizelle in October 2020 under Welfare and Institutions code
section 300,3 subdivisions (b), (d), and (j), because father’s sexual
abuse of Kierra was “so persistent and so pervasive and so
aberrant that” Gizelle was “at risk as well.” Gizelle was removed
from both parents.
Father and mother appealed the juvenile court’s
jurisdictional and dispositional findings. We affirmed those
findings in an unpublished opinion, but remanded the matter to
the juvenile court for further proceedings in compliance with the
3 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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Indian Child Welfare Act (25 U.S.C. § 1901 et seq.). (In re Gizelle
D. (Sept. 9, 2021, B308580).)
B. Gizelle’s progress
These egregious events had a serious impact on Gizelle,
both before and after she was declared a dependent of the court.
Before the Department filed the petition in this case,
Jonathan told Gizelle that he was ready to report father’s abuse;
Gizelle shared that she “might tell a lot too.” Though Gizelle did
not make any reports of abuse by father, Jonathan believed
something had happened to her. In 2018, when Gizelle was 13
years old and while Kierra was being subjected to father’s abuse,
Gizelle started cutting herself but would not share what was
troubling her. This left scars on Gizelle’s forearms that were
discovered in a medical examination conducted in 2020. Gizelle
also used to beg mother to let her stay with maternal
grandmother and not return home. Maternal grandmother
observed that “[t]here are things Gizelle will not say”; she
“start[s] to say something and then just close[s] up.”
Gizelle continued to struggle during the dependency
proceedings. Though she was not a client of a regional center and
did not have an individualized education program (IEP), Gizelle
earned failing grades in four out of seven of her tenth-grade
classes. She participated in therapy, but missed sessions and
was still addressing reducing her “verbal aggression” and
increasing her “positive communication skills.”
Gizelle actively avoided communicating with father. He
has been incarcerated since April 2020 pending trial on charges
of committing lewd and lascivious acts upon a minor (Pen. Code,
§ 288). The juvenile court authorized father to have monthly in-
person visits with Gizelle and his other children while in custody,
4
but lockdowns related to COVID-19 and other restrictions
precluded any in-person visitation. And while the court also
authorized father to have weekly monitored phone calls with the
children, he waited more than one month to arrange a call
schedule. Father called when he was able, but on at least two
occasions Gizelle went into the bathroom to avoid having to talk
to him during his calls.
C. Limitation on father’s educational rights
At a six-month review hearing on April 29, 2021, Gizelle’s
counsel requested, consistent with her wishes, that Gizelle’s
current caregiver—a maternal aunt—be designated as the sole
holder of educational and developmental decisionmaking rights
over Gizelle. Over father and mother’s objections, the juvenile
court issued an order limiting both parents’ educational and
developmental rights. The court explained that it was
“reasonable . . . to rely on” 16-year-old Gizelle’s preference, and
that it was “certainly . . . difficult to contact [father] right away”
to make decisions on behalf of Gizelle.
D. Appeal
Father filed this timely appeal.
DISCUSSION
Father argues the juvenile court erred in designating the
maternal aunt as the sole holder of Gizelle’s educational and
developmental rights.4
4 Subsequent to father’s filing of this appeal, mother became
coholder of those rights with maternal aunt in June 2021, and
then the exclusive holder of those rights when Gizelle was
returned to mother’s custody in January 2022. (Cal. Rules of
Court, rule 5.650(e)(1).) Father’s appeal remains “live” because
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I. Governing Legal Principles
Although a parent has a “constitutionally protected liberty
interest in directing [his] children’s education” (In re R.W. (2009)
172 Cal.App.4th 1268, 1276 (R.W.)), the juvenile court has the
power to “limit” a parent’s “control to be exercised over” decisions
regarding a dependent child’s “educational or developmental
services” (§ 361, subd. (a)(1); Cal. Rules of Court, rule 5.649(a)).5
To be substantively valid,6 any limitation on a parent’s
right to make educational and developmental decisions for a child
his educational and developmental rights over Gizelle have not
been restored.
5 These provisions apply when, as occurred here, the juvenile
court issues the order limiting a parent’s decisionmaking
authority over a child’s education or development at the
dispositional hearing or any subsequent review or permanency
hearing. Section 319 provides the statutory authority
empowering a juvenile court to limit a parent’s authority at the
initial hearing on the petition or any time before the court
adjudges the child a dependent. (§ 319, subd. (j); Cal. Rules of
Court, rule 5.649(b).) Although the juvenile court on its form
order in this case checked the box for section 319, subdivision (j),
this error is of no moment because our task is to review the
court’s ruling limiting father’s educational and developmental
decisionmaking rights, not the court’s reasoning. (People v.
Chism (2014) 58 Cal.4th 1266, 1295, fn. 12; People v. Zamudio
(2008) 43 Cal.4th 327, 351, fn. 11; People v. Zapien (1993) 4
Cal.4th 929, 976.)
6 To be procedurally valid, the limitation on a parent’s right
to make educational and developmental decisions for his child
must be “specifically addressed” in a court order. (§ 361, subd.
(a)(1).) The juvenile court satisfied this procedural requirement
in this case.
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who has been declared a dependent must (1) like all dispositional
orders, “not exceed” what is “necessary to protect the child” (§
361, subd. (a)(1)); and (2) like all juvenile dependency orders, be
in the “best interest” of the child (§ 202, subd. (b); In re Samuel G.
(2009) 174 Cal.App.4th 502, 510 (Samuel G.); see generally In re
Venus B. (1990) 222 Cal.App.3d 931, 935 [policy in section 202
“must guide” decisions in dependency law].) What must be
protected is not the physical safety of the child, but rather the
educational and developmental well-being of the child. Orders
limiting a parent’s decisionmaking rights have been found to be
necessary to protect a child and in the child’s best interest (1)
where the child faces educational and developmental challenges,
and the parent has “never shown good judgment in making
decisions” regarding the child (R.W., supra, 172 Cal.App.4th at p.
1278); (2) where the parent is “unwilling or unable” to provide
responsive input or be involved in making decisions regarding the
child’s services (Samuel G., at p. 510; § 366.1, subd. (e)); and (3)
where the child, particularly an older child, expresses her wishes
that another caregiver be appointed as the decisionmaker (see In
re Michael D. (1996) 51 Cal.App.4th 1074, 1087 (Michael D.)
[child’s wishes constitute “powerful demonstrative evidence”
regarding what is in child’s best interest]).
We review a juvenile court’s order limiting a parent’s
educational and developmental decisionmaking rights over a
dependent child for an abuse of discretion (R.W., supra, 172
Cal.App.4th at p. 1277), and review any subsidiary factual
findings for substantial evidence (In re T.V. (2013) 217
Cal.App.4th 126, 136). Applying these standards of review, we
may not substitute our decision for that of the juvenile court, and
may reverse an order only if the court “exceeded the bounds of
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reason.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319
(Stephanie M.).)
II. Analysis
Although the juvenile court could have reasonably reached
a contrary conclusion, we conclude that the court did not exceed
the bounds of reason when it limited father’s right to make
educational and developmental decisions for Gizelle, as all three
factors identified in the pertinent caselaw are present here.
To begin, substantial evidence supports a finding that
Gizelle was facing significant educational and developmental
challenges and that father had not “shown good judgment in
making [parenting] decisions.” (R.W., supra, 172 Cal.App.4th at
p. 1278.) Gizelle was certainly facing educational and
developmental challenges: She had witnessed at least one
instance of father’s sexual abuse of her half-sister and had
subsequently engaged in self-harming behavior; by the time the
juvenile court entered its order, Gizelle was struggling in school
and had a ways to go in therapy as well. There is no question
that father demonstrated extraordinarily poor judgment
regarding the well-being of the children in his care: Father’s
sexual abuse of Kierra and Jonathan constitutes “‘aberrant
sexual behavior’” “‘in the extreme’” and demonstrates a complete
abandonment of his parental role, an abandonment that also
placed Gizelle at substantial risk of harm. (In re I.J. (2013) 56
Cal.4th 766, 778; see Los Angeles County Dept. of Children &
Family Services v. Superior Court (In re A.C.) (2013) 215
Cal.App.4th 962, 969.)
Further, father is unable and, to a degree, unwilling to
provide meaningful input and involvement in making educational
and developmental decisions for Gizelle. To be sure, father’s
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inability is due in part to the fact that he is in custody. “There is
no ‘Go to jail, lose your child’ rule in California” (In re S.D. (2002)
99 Cal.App.4th 1068, 1077), which suggests the corollary that a
parent does not automatically forfeit all decisionmaking rights
over a child merely because he is incarcerated. But this corollary
does not compel a court to ignore the practical reality that a
parent’s incarceration makes it increasingly difficult—and
sometimes impossible, as shown by the periodic lockdowns of
father’s facility—for a parent to be able to participate in making
educational and developmental decisions, at least where, as here,
that inability is coupled with an unwillingness to be involved.
Here, father has demonstrated some unwillingness to be involved
in Gizelle’s upbringing insofar as he moved slowly in setting up
telephonic visits and thereafter missed some scheduled calls.
Lastly, Gizelle’s wishes—while not dispositive—are still
entitled to some weight. (In re Aljamie D. (2000) 84 Cal.App.4th
424, 432 [“While a child’s wishes are not determinative of her
best interests, the child’s testimony . . . constitutes powerful
demonstrative evidence” of her “best interest”]; Michael D.,
supra, 51 Cal.App.4th at p. 1087 [same]; accord § 366.26, subd.
(c)(1)(B) [objection of child over age 12 to termination of parental
rights is “compelling reason” for determination that termination
would be detrimental to child].) Her wishes have some additional
heft to them because they are based in part on the
understandably damaged relationship between Gizelle and
father, which would make conferring on educational and
developmental decisions more contentious if not downright
impossible (given Gizelle’s efforts to avoid speaking with father).
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Viewing these facts in their totality, the juvenile court did
not abuse its discretion in limiting father’s educational and
developmental decisionmaking rights over Gizelle.
Father raises what boils down to six arguments in
response.
First, father argues that the factual justification for
limiting his educational and developmental rights in this case
pales in comparison to the justifications proffered in R.W., supra,
172 Cal.App.4th 1268, and In re D.C. (2015) 243 Cal.App.4th 41(D.C.), superseded by statute on other grounds as stated in In re
A.M. (2020) 47 Cal.App.5th 303, 322. Undoubtedly, those cases
involved more extreme facts than are present here. In R.W., the
child “suffered from severe emotional and behavioral problems,”
those problems necessitated an immediate decision regarding
whether to place the child in an out-of-state residential facility,
and the parent whose rights were curtailed was dragging her
proverbial feet and objecting to that critically important
placement. (R.W., at p. 1277.) In D.C., the parent whose rights
were curtailed was placing harassing calls to the child’s school.
(D.C., at pp. 58-59.) Contrary to what father asserts, however,
R.W. and D.C. do not purport to set the minimum factual
showing necessary to curtail a parent’s educational rights. That
minimum factual showing is defined by the statutory standard,
and by the factors subsequently identified by the courts as
bearing on that standard; as explained above, our analysis of
those factors confirms the propriety of the juvenile court’s order
in this case.
Second, father argues that there was insufficient evidence
to support limiting his educational and decisionmaking rights
over Gizelle. Father starts by noting that Gizelle’s counsel did
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not cite any specific evidence in the record at the time she
requested a limitation on father’s decisionmaking authority, but
this is irrelevant: What matters to our review is what evidence is
in the record, not whether counsel cited those portions of the
record to the juvenile court. (See In re Isabella F. (2014) 226
Cal.App.4th 128, 137-138.) Father next asserts that there was no
evidence that he had previously made poor decisions regarding
Gizelle’s educational well-being and, more broadly, no evidence
that father was “an unfit parent” (R.W., supra, 172 Cal.App.4th
at p. 1278). This assertion misreads the pertinent law and the
record. The law requires that a parent have exercised poor
“judgment in making decisions” regarding the child, not poor
judgment in education-related decisionmaking. (Accord, R.W.,
supra, 172 Cal.App.4th at pp. 1271-1272, 1278 [parent’s poor
“judgment” included not only “protest[ing]” against counseling for
child and failing to cooperate with IEP, but also leaving child
with abusive relative to go on a trip to Las Vegas].) We decline to
read such a requirement into the law. And the record refutes
father’s assertion that no evidence supports a finding that he is
an “unfit parent”: He sexually molested his two stepchildren for
years. Father then concludes by claiming that he has been
cooperative with the Department, but father’s cooperation on
some fronts does not undercut the allegations that gave rise to
this case and does not cure his more recent lack of interaction
with Gizelle, and it is those areas—the underlying allegations
and the lack of interaction with Gizelle—that are more pertinent
to limiting father’s educational and developmental rights.
Third, father argues that the limitation on his
decisionmaking rights is currently improper because the
circumstances have changed since the juvenile court issued its
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order in April 2021. Specifically, father notes that Gizelle has
been returned to mother’s care and asserts (without evidentiary
support) that the pandemic-related restrictions at his place of
incarceration have been relaxed. As a result, father concludes, he
can now more easily be consulted on educational and
developmental decisions for Gizelle. Father’s argument is
misplaced because our job is to review the propriety of the
juvenile court’s order at the time it was issued (cf. In re M.M.
(2015) 240 Cal.App.4th 703, 719 [jurisdictional finding turns on
risk to the child at time of the hearing]), not to assess whether
the order would be valid under the changed factual circumstance
that may or may not exist today.
Fourth, father argues that the juvenile court erred in
limiting his decisionmaking rights because, in his view, such
rights should not be limited so long as a parent is still receiving
reunification services. We reject father’s view that a limitation-
order is premature unless and until reunification services are
terminated. To the contrary, the law specifically empowers a
juvenile court to limit a parent’s educational and developmental
decisionmaking rights during the reunification phase of the
proceedings. (§ 366, subd. (a)(1)(C) [requiring court to consider,
during reunification review hearings, “[w]hether there should be
any limitation on the right of the parent . . . to make educational
decisions or developmental services decisions for the child”].)
Fifth, father argues that the request to limit his
decisionmaking rights over Gizelle was initially requested by
Gizelle rather than the Department. The origin of the request is
irrelevant because, as noted above, our job is to review the
propriety of the juvenile court’s order. Its propriety does not turn
on who requested that order.
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Sixth, father argues that the juvenile court should have, at
a minimum, made him a coholder with maternal aunt of the right
to make educational and developmental decisions for Gizelle.
Father does not explain why being a coholder would alter our
analysis. If being a coholder means that both holders (father and
maternal aunt) must agree on decisions, then either would have
an effective “veto” power; under this interpretation, father would
effectively be the sole rights holder, and father’s argument is
nothing more than a collateral attack on the limitation of his
rights that we have found sufficient. If being a coholder means
that either holder may make a decision on his or her own, then
father would effectively have no rights; yet this is precisely the
order that the juvenile court entered, and that we have upheld.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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