In re Anthony E. CA2/2

Filed 11/18/22 In re Anthony E. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ANTHONY E., a Person B315305
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 21CCJP03352B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
RENE E.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Robin R. Kesler, Judge Pro Tempore. Affirmed.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and William B. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
******
Rene E. (father) appeals from the juvenile court’s
jurisdictional and dispositional orders in dependency proceedings
for his six-year-old son. He argues that (1) there is insufficient
evidence to support the juvenile court’s finding that he failed to
protect his son from the mother’s substance abuse and mental
health problems; and (2) the juvenile court erred when it refused
to give him custody of his son. Substantial evidence supported
the jurisdictional findings, and subsequent proceedings in the
juvenile court have rendered father’s second issue moot.
Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Family
Father and Amanda G. (mother) met in 2014. Their son,
Anthony, was born in October 2015.1 Father and mother never
married, but were in a relationship and lived together for
approximately five years. During this time, father and mother
1 Mother has one other child—Arianna (born 2007)—by
another father. Father has two other children by other mothers.
These other children are not at issue in this appeal.
2
regularly engaged in “arguments and fights with stuff being
broken.” Father and mother eventually split up: Father moved
to San Bernardino; mother, to Los Angeles with Anthony.
B. Mother’s drug use
Mother used crystal meth. She would go into the bathroom
“for long periods of time” and emerge either “angry and arguing
and talking to the ceiling” or “look[ing] like she was sleep
walking.” Mother would “stay awake for long periods of time”
and “never sle[pt].” Father complained to mother’s brother,
Alfonso, that mother’s methamphetamine use was a problem in
their relationship.
C. Mother’s mental health issues
Beginning sometime in 2017, mother began “hearing voices
and talking to herself,” and started to blame “everything bad that
ha[d] happened” on entities she identified only as “they” and
“them.” Mother called father “back-to-back” whenever she was
having one of these mental health breakdowns, as father was
“the only person able to settle her down” because he was “the only
one who understands her.” At times, mother’s episodes got so
bad that she would use a baseball bat to smash glass objects in
the house and to make holes in the interior walls.
D. Events underlying dependency jurisdiction
One day in June 2021, mother told Anthony and Arianna
“to pack a bag because they were leaving and never coming back.”
Mother drove with the children to a motel in Palmdale. On the
way there she drove erratically—at high rates of speed and
through red lights—and, while hallucinating, threatened to drive
the car off a cliff. Mother trashed the motel room, complained the
motel did not have cameras, and then drove back to Los Angeles.
After mother returned, Alfonso, the maternal aunt Jessica,
3
and the maternal grandmother went to her home. Mother told
them that she “had been doing meth” and had in fact been using
methamphetamines since she was 15 years old, but she was going
to stop. She left the room and returned with a glass pipe.
Mother smashed the pipe on the table before handing it to
Alfonso. Father had been working out of town during this
incident, and upon his return, picked up mother and drove her to
the beach because he thought “she needed some air” and they
could “talk and walk for a while to calm her down.”
In early July, mother was prescribed psychotropic
medication at a psychiatric and chemical dependency treatment
center. Mother admitted to drinking alcohol while taking the
medication, and she stopped taking the medication completely
after two days.
II. Procedural Background
In late 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 Anthony.
The Department alleged that (1) mother had a “history of
substance abuse” and her “current abuse[] of amphetamine and
methamphetamine” rendered her “incapable of providing regular
care and supervision” of Anthony, and that father had “failed to
protect” Anthony because he knew of mother’s substance abuse
but allowed her to reside in the home and have unlimited access
to Anthony; (2) mother had a “history of mental and emotional
problems including auditory and visual hallucinations, suicidal
ideation, homicidal ideation, [and] paranoia” which rendered her
“incapable of providing [Anthony] with regular care and
supervision,” and that father had “failed to protect” Anthony
because he knew of mother’s mental and emotional problems but
4
allowed her to reside in the home and have unlimited access to
Anthony; and (3) mother’s erratic driving at high rates of speed
and running through red lights while Anthony was a passenger
in the vehicle, as well as shattering glass and causing holes in the
walls of the home, created a “detrimental and endangering
situation[] and home environment” for Anthony. The
Department further alleged that this conduct placed Anthony at
substantial risk of serious physical harm, thereby rendering
dependency jurisdiction appropriate under Welfare and
Institutions Code section 300, subdivision (b)(1).2
In follow-up interviews by the Department, mother denied
current use of drugs or alcohol and she denied having any history
of drugs or alcohol. Father denied having any knowledge of
mother’s drug use or mental history during their seven-year
relationship and claimed he only became aware of mother’s issues
in late June 2021.
In September 2021, the juvenile court held a jurisdictional
and dispositional hearing. The court struck the reference to
mother’s “history” of substance abuse and otherwise sustained all
of the allegations in the petition, expressly finding that father
“tr[ied] to assist [mother] a few times, but after seeing her
behavior, knowing that she was on drugs, he still left [Anthony] .
. . a five year old” with mother “instead of just taking [Anthony]
out of mother’s home and protecting [him].” The court found that
“pursuant to . . . section 361 [subdivision] (c) and by clear and
convincing evidence[,] there’s still a substantial danger if
[Anthony] was returned to the physical custody of the parents.”
The court found no reasonable means to protect Anthony short of
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
5
removal, declared him a dependent of the court, removed
Anthony from both parents, and ordered the Department to
provide reunification services consisting of drug, alcohol, and
psychiatric treatment for mother, and individual counseling for
father.
Father filed this timely appeal. Mother did not appeal.
III. Postappeal events3
On September 20, 2022, while this appeal was pending, the
juvenile court held a review hearing pursuant to section 366.21,
subdivision (f). At that hearing, the court vacated its prior
removal order and placed Anthony with mother.
DISCUSSION
I. Father’s Challenge to Dependency Jurisdiction
Father challenges a portion of the juvenile court’s first two
jurisdictional findings. Specifically, he does not challenge the
court’s findings that mother was abusing drugs and had a history
of mental and emotional problems, or that those conditions
placed Anthony at substantial risk of serious bodily injury; all he
challenges is the court’s further finding that father “failed to
protect” Anthony. Father asserts that there was insufficient
evidence that he knew of mother’s drug abuse or mental health
issues, such that he could not be found liable for failing to protect
Anthony from circumstances of which he was ignorant. We
review father’s challenges to these specific factual findings for
substantial evidence, asking only whether the record, when
3 We grant the Department’s request for judicial notice and,
on our own, take judicial notice of the juvenile court’s September
20, 2022 minute order. (Evid. Code, §§ 452, subd. (d), 453, 459,
subd. (a).)
6
viewed in the light most favorable to the juvenile court’s findings,
contains evidence that is reasonable, credible, and of solid value
for a reasonable jurist to make those findings. (In re I.J. (2013)
56 Cal.4th 766, 773.)
As a threshold matter, we must decide whether father may
assert this challenge at all. Dependency jurisdiction attaches to a
child, not his parent. (In re D.M. (2015) 242 Cal.App.4th 634,
638.) As a result, mother’s failure to appeal the jurisdictional
findings means that the court’s jurisdiction over Anthony
remains intact based on her conduct alone, and hence regardless
of the outcome of father’s appeal. (In re M.W. (2015) 238
Cal.App.4th 1444, 1452.) Of course, we still have the discretion
to reach the merits of father’s challenge to the portions of juvenile
court’s jurisdictional findings if those findings (1) serve as the
basis for dispositional orders that are also challenged on appeal;
(2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings; or (3) could
have other consequences for the appellant, beyond jurisdiction.
(In re D.M., at p. 646; In re Drake M. (2012) 211 Cal.App.4th 754,
762-763.) Because the juvenile court’s findings that father failed
to protect Anthony may be used against father in future
dependency proceedings, we elect to reach the merits of father’s
jurisdictional challenge.
“Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise 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 failure or
inability of his or her parent . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
7
illness . . . or substance abuse.’ (§ 300, subd. (b)(1).)” (In re
L.W. (2019) 32 Cal.App.5th 840, 848.)
Substantial evidence supports the juvenile court’s finding
that father was aware of mother’s drug use and mental health
problems, and that those problems placed Anthony at risk.
Father’s statement to Alfonso that mother’s meth use was an
issue in their relationship is substantial evidence that father was
aware of mother’s drug problems, yet father still allowed Anthony
to remain in mother’s care. Mother’s calls to father when she was
having her “episodes” is substantial evidence that father was also
aware of mother’s mental health issues, yet father still allowed
Anthony to remain in her care. Indeed, father acknowledges he
took mother for a walk on the beach to calm her down after
mother’s mental breakdown in late June 2021. Yet, despite his
awareness of mother’s mental instability, he allowed her to care
for Anthony until the Department intervened in mid-July. This
is ample evidence of a failure to protect justifying the adverse
section 300 jurisdiction finding against father.
Father urges that the record shows that he was, at most,
aware of mother’s drug use and mental health problems, but not
that those problems posed a risk to Anthony. Father’s contention
is belied by the record. A meth addiction severe enough to
disrupt an adult relationship is, when construed in the light most
favorable to the juvenile court’s finding, also severe enough to
pose a risk to the care of a young child. Father asserts that his
awareness of mother’s “episodes” is insufficient to show risk
because the record does not indicate what happened during those
“episodes,” but this not only impermissibly construes the term in
the light least favorable to the juvenile court’s finding, but also
ignores the evidence that father had to calm mother down after
8
one of those episodes, a task that would be unnecessary if they
were of no consequence. Father lastly emphasizes that he has
not lived with mother for a few years, but the record shows that
he was aware of mother’s problems despite this living
arrangement; the arrangement does not somehow preclude such
awareness.
II. Father’s Challenge to the Juvenile Court’s Refusal to
Place Anthony in His Custody is Moot
“An appellate court will not review questions which are
moot and only of academic importance, nor will it determine
abstract questions of law at the request of a party who shows no
substantial rights can be affected by the decision either way.
[Citation.] An appeal becomes moot when, through no fault of
the respondent, the occurrence of an event renders it impossible
for the appellate court to grant the appellant effective relief.
[Citations.] On a case-by-case basis, the reviewing court decides
whether subsequent events in a dependency case have rendered
the appeal moot and whether its decision would affect the
outcome of the case in a subsequent proceeding.” (In re
Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.)
Father’s challenge to the trial court’s dispositional order is
moot because we can no longer render effectual relief as to that
issue. Father urged on appeal that the juvenile court violated the
mandate of section 361.2, subdivision (a), to place Anthony with
him—as the noncustodial parent—upon removing Anthony from
his custodial parent. Once the juvenile court placed Anthony
back with mother as the custodial parent, however, any violation
of section 361.2 ceased. (See, e.g., R.S. v. Superior Court (2007)
154 Cal.App.4th 1262, 1270 [‘“section 361.2 deals specifically with
9
the removal of the child from a custodial parent when there also
exists a noncustodial parent’”].)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
10