In re K.A. CA2/8

Filed 10/28/20 In re K.A. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re K.A., a Person Coming B305019
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP06115A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.C.,
Defendant and Appellant.
Nathan A.,
Respondent.
APPEAL from order of the Superior Court of Los Angeles
County, Annabelle G. Cortez, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
Aida Aslanian, under appointment by the Court of Appeal,
for Respondent.
_________________________
INTRODUCTION
Appellant B.C.’s (Mother’s) appeal, initiated February 24,
2020, is twofold. First, she appeals from the juvenile court’s
November 20, 2019 dispositional order removing her daughter
from her care and custody. Second, she appeals from the court’s
February 4, 2020 final custody order which incorporated her
signed mediated agreement with the child’s father as to custody
and visitation.
By separate order dated September 17, 2020, we dismissed
as untimely Mother’s appeal of the November 20, 2019 removal
order. We now affirm the February 4, 2020 custody order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Referral and Investigation
Mother and Nathan A. (Father) are the parents of six-year-
old daughter K.A. At the outset of the case, Father resided in
Louisiana and Mother resided in California with K.A. Mother
and her boyfriend (boyfriend) are the parents of one-year-old D.C.
D.C. is not a subject of this appeal.
In July 2019, the family came to the attention of the Los
Angeles County Department of Children and Family Services
(DCFS) after Mother called the police and reported a “domestic
violence altercation” with boyfriend. Mother alleged he hit her
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neck, jaw, head, and abdomen “with a closed fist” after she
“complained” that their home was messy and told him “to do
something about it.” Both children were present during the
incident, but remained unharmed. Police took an incident report
and arrested boyfriend. Mother said she would prepare
“paperwork for an EPO” against him.
Throughout July and August 2019, DCFS made several
attempts to contact Mother—to no avail. Boyfriend told DCFS
she was residing at maternal grandmother’s (MGM) home.
However, MGM told DCFS she did not know where mother was
residing and that Mother had moved out two months ago.
Mother’s stepfather reported that boyfriend is dangerous
and a “bad influence.” He said boyfriend is a gang member who
“slashed his tires” in the past. He stated there had been domestic
violence between Mother and boyfriend about 18 months ago.
On August 20, 2019, DCFS interviewed K.A. at school. The
social worker (CSW) observed K.A. in clean clothes, with her hair
braided. K.A. stated she resided with Mother, boyfriend, and
D.C. at boyfriend’s home. She said they moved back into
boyfriend’s home after Mother had a “big fight” with maternal
aunt, resulting in Mother kicking the aunt “on the stomach.”
K.A. told the CSW: Mother disciplines her by “whooping”
her. Mother hits her on her lower back with a belt, making her
cry because “it hurts.” Mother and boyfriend discipline D.C. by
hitting her with “an open hand” on her arm. Boyfriend
sometimes flicks his fingers on her and D.C.’s forehead.
K.A. reported Mother and boyfriend smoke marijuana in
the house; K.A. described the “weed” as “rolled”, “brown”, with “2
cut circles.” K.A. said Mother “smokes marijuana when she is
cooking.” She said Mother and boyfriend also smoke marijuana
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in the car while K.A. and D.C. are in the car. She stated Mother
and boyfriend sometimes “blow the smoke out through the
windows” but other times “put the windows up” and do not blow
out the smoke, causing her and D.C. to cough and have difficulty
breathing. The smoke also hurt their eyes.
K.A. recalled an incident where Mother “wanted to kill
herself in the past” because of “having too many fights” with
boyfriend. K.A. described how Mother held a knife and said she
wanted to kill herself because of boyfriend; Mother did not end up
hurting herself, because he promised they would no longer fight.
During the course of its investigation, DCFS discovered
Mother and boyfriend had been involved in “10 incidents of
domestic violence during their 6-year relationship.” K.A. told the
CSW she was afraid that boyfriend “may hurt her mother.”
B. Removal, Petition, and Detention
On September 11, 2019, the juvenile court issued warrants
authorizing DCFS to remove K.A. and D.C. from Mother. The
children were removed on September 17, 2019.
On September 19, 2019, DCFS filed a petition pursuant to
Welfare and Institutions Code1 section 300 on behalf of both
minors. The operative petition was interlineated by the juvenile
court. It alleged:
Count b-1: Mother and boyfriend have a history of
engaging in violent altercations in the presence of the children.
Boyfriend’s violent conduct and Mother’s failure to protect the
children by allowing him to continue residing in the children’s
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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home endangered the children’s safety and placed them at risk of
harm.
Count b-2: Mother has a history of substance use and is
a recent user of marijuana. She was under the influence of
marijuana while the children were in her care and supervision.
Because her children are of such tender age as to require
constant supervision, Mother’s substance use interferes with and
renders her incapable of providing regular care and supervision.
Count b-3: Boyfriend has a history of substance use and
is a recent user of marijuana; he was under the influence of
marijuana in the children’s presence. Mother knew of his
substance use and failed to protect the children in that she
allowed him to reside in the children’s home and have unlimited
access to them.
At the detention hearing on September 20, 2019, Mother
and boyfriend denied the allegations in the petition. The juvenile
court found “a prima facie case” that the children are persons
described by section 300.
The court found Nathan A., who appeared by telephone
from Louisiana, to be K.A.’s presumed father. Father indicated
to the court he last saw K.A. when she visited at Christmas.2
Father further indicated he wished to have K.A. placed in his
care “as soon as possible.” The juvenile court ordered K.A.
released to his care, and stayed the order pending DCFS’s
recommendation.
2 Mother met Father while attending high school in
Louisiana. They “were together” for three years and K.A. was
born when Mother was 18 years old. According to Father, Mother
and K.A. lived in Louisiana until Mother moved to California
with K.A. without letting Father know.
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On October 4, 2019, DCFS assessed Father’s home. Father
lived with his wife, their newborn, and wife’s five-year-old
daughter from a previous relationship. Father had prepared a
bedroom for K.A. in his home. Father worked at a nursing home
and was studying to obtain his commercial driver’s license. The
CSW described Father as “cooperative” and “easy to engage”; the
CSW denied any concern about domestic violence, substance
abuse, or mental health. Father “expressed repeatedly how
important family is to him.” The CSW found the home clean and
appropriate and recommended K.A. be released to home of
Father.
DCFS transported K.A. to the Los Angeles International
Airport where Father accompanied her on the flight to Louisiana.
DCFS continued its investigation. On October 17, 2019,
Mother told the CSW she had ended her relationship with
boyfriend because she wanted to “find [her] peace” and accepted
that their relationship was “toxic.” Mother admitted to smoking
marijuana but said she was “not a hard smoker” and did not
smoke every day. She denied smoking inside the house or near
the children; she also denied driving a car with the children as
passengers while she was under the influence of marijuana. She
confirmed boyfriend used marijuana daily.
Mother provided DCFS with proof of her enrollment in
parenting and domestic violence classes at the Parent
Involvement Center; as of November 4, 2019, she had attended
four parenting classes and four domestic violence classes. Mother
also provided DCFS with a letter from Bright Horizons
Counseling Services, indicating her enrollment in individual
therapy services.
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On November 8, 2019, the CSW paid a visit to Father’s
home. K.A. appeared “clean, well-nourished, well groomed,” and
“in a happy mood evidenced by [her] smiling”; however, she did
tell the CSW she missed Mother and her sister D.C. The CSW
observed no safety concerns at the home. Father reported his
plan to enroll K.A. in individual counseling because she is “scared
to go to the restroom during . . . the day.” Father indicated K.A.
had a dental appointment in a few days.
On November 15, 2019, Mother moved into a shelter with
the Los Angeles Community Outreach.
C. Adjudication
November 20, 2019 was the date of the combined
jurisdictional and dispositional hearing. Mother and boyfriend
pled no contest. The juvenile court accepted their pleas and
sustained the interlineated petition. The court found: “Based on
the pleas, as well as the information in the record . . . that the
children are persons described by . . . section 300.” The minute
order noted K.A. was “declared a dependent of the court” under
section 300, subdivision (b).
The court proceeded to disposition. After hearing
argument, the juvenile court stated it is “going to be adopting the
recommendation to close the case.” It found Father “is willing
and able to provide [K.A.] with a safe home” and stated it “will be
making removal orders from the mother.” The court then
terminated jurisdiction as to K.A. and granted sole physical
custody of K.A. to Father and joint legal custody to both parents;
the court permitted Mother overnight visits with K.A. The court
stayed the termination and custody orders pending its receipt of
the juvenile custody order and scheduled mediation for Mother
and Father to work out a visitation schedule.
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Father was deemed “non-offending.”
D. Juvenile Custody Order
On January 24, 2020, the parties participated in mediation
which resulted in an agreement signed by both parties. Mother’s
parenting time included up to 2 weeks during the summer with
K.A. in California and any additional days as mutually agreed
upon by both parents. The agreement also contained holiday and
vacation provisions for Thanksgiving, Christmas, and K.A.’s
birthday. The agreement repeated the juvenile court’s legal and
physical custody orders pronounced at the November 20, 2019
hearing.
On February 4, 2020, the juvenile court signed the custody
order and parentage judgment, incorporating the parties’
mediated agreement. The court ordered the stay lifted and
dependency jurisdiction terminated.
On February 24, 2020, Mother filed a notice of appeal
challenging the court’s November 20, 2019 removal order and
February 4, 2020 custody order. As previously noted, Mother’s
challenge to the removal order has been dismissed as untimely.
We do not address the propriety of the November 20, 2019
removal order again in this disposition.
DISCUSSION
Mother’s Appeal of the February 4, 2020 Custody Order
The juvenile court has broad discretion to make custody
orders when it terminates jurisdiction in a dependency case,
(In re Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) In
fashioning custody and visitation orders, the juvenile court’s
“focus and primary consideration must always be the best
interests of the child.” (Id. at p. 268.) It must utilize its “ ‘broad
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discretion to determine what would best serve and protect the
child’s interest and to fashion . . . order[s] in accordance with this
discretion.’ ” (In re Corrine W. (2009) 45 Cal.4th 522, 532.)
The court’s final juvenile custody order—also known as an
exit order—“remain[s] in effect after [dependency] jurisdiction is
terminated” and may thereafter be modified by the family court if
(1) “there has been a significant change of circumstances,” and
(2) “modification . . . is in the best interests of the child.” (§§ 302,
subd. (d), 362.4, subd. (b); Heidi S. v. David H. (2016)
1 Cal.App.5th 1150, 1163; see also In re Marriage of Carney
(1979) 24 Cal.3d 725, 730–731.)
Mother first contends we should vacate the February 4,
2020 order because of alleged errors committed by the court
during the November 20, 2019 hearing. As Mother’s appeal of
the November 20, 2019 removal order has been dismissed as
untimely, she cannot subsequently attack it by way of her appeal
of the February 4, 2020 custody order. (People v. Ramirez (2008)
159 Cal.App.4th 1412, 1421; In re Meranda P. (1997)
56 Cal.App.4th 1143, 1150.)
Mother next argues we should reverse the custody order
because the court failed to state on the record or in writing the
factual basis for the order, as required by section 361, subdivision
(c), and California Rules of Court, rule 5.695(a)(7)(A).3
3 Section 361, subd. (c) provides that a dependent child shall
not be removed from the physical custody of the custodial parent
at the outset of the case unless the juvenile court finds clear and
convincing evidence there is or would be substantial danger to
the physical health, safety, or emotional well-being if the minor
was returned home, warranting removal.
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We disagree. Based on our review of the record, the court
did, in fact, state on the record and in writing the factual basis
for the order. When the court amended the petition by
interlineation, it described the three counts it found true. The
specific information in the counts, to wit, boyfriend’s violent
altercations with Mother in front of K.A., and both adults’
marijuana use in K.A.’s presence, coupled with Mother’s decision
to continue living with K.A. at boyfriend’s home and to allow him
unlimited access to K.A. constitutes the factual basis in support
of the court’s custody order.
Additionally, the juvenile court stated on the record during
the November 20, 2019 hearing that Father (the non-custodial
parent per Cal. Rules of Court, rule 5.695(a)(7)(A)) “is willing and
able to provide [K.A.] with a safe home” and stated it “will be
making removal orders from the mother.” The court declared
dependency when it specified “[b]ased on the pleas, as well as the
information in the record . . . that the children are persons
described by . . . section 300.” (Italics added.)
Further, Mother pleaded no contest to the jurisdictional
allegations that she had endangered her children. “Our Supreme
Court has explained that ‘[a] plea of “no contest” . . . is the
juvenile court equivalent of a plea of “nolo contendere” . . . in
criminal courts. A plea of “no contest” to allegations under
section 300 at a jurisdiction hearing admits all matters essential
California Rules of Court, rule 5.695(a)(7)(A) provides that
the court may declare dependency and remove physical custody
from the parent after stating on the record or in writing the
factual basis for the order, order custody to a noncustodial
parent, terminate jurisdiction, and direct that the juvenile
custody order be prepared and filed.
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to the court’s jurisdiction over the minor.’ ” (In re Andrew A.
(2010) 183 Cal.App.4th 1518, 1526.) Thus, Mother is barred from
bringing an appeal to challenge the findings and allegations she
has already admitted. (Ibid.)
Notably, Mother fails to apply the correct standard of
review on appeal, i.e., whether the juvenile court abused its
discretion in issuing the February 4, 2020 custody order. She did
not explain in her briefing why the terms of the custody order are
arbitrary or contrary to K.A.’s best interests. (See In re Corrine
W., supra, 45 Cal.4th at p. 532.) In addition, the February 4,
2020 juvenile custody order incorporated the mediated agreement
which set out the custody and visitation terms Mother herself
agreed to by signing the mediation agreement. Because she
stipulated to these specific custodial terms, which formed part of
the juvenile custody order, we reject Mother’s contention that she
was prejudiced by the issuance of the order. (See In re Richard K.
(1994) 25 Cal.App.4th 580, 589–590 [“He who consents to an act
is not wronged by it” and Mother’s agreement “dispels any
challenge to and, in essence, endorses” the court’s issuance of the
orders]; see In re Jennifer V. (1988) 197 Cal.App.3d 1206, 1209
[A party “may not appeal from an order or judgment entered
pursuant to stipulation”].)
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DISPOSITION
We affirm the February 4, 2020 custody order.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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