In re A.J. CA2/1

Filed 8/1/23 In re A.J. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re A.J., a Person Coming B321480
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 21CCJP04085)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
APPEAL from the jurisdictional and dispositional orders
of the Superior Court of Los Angeles County, Terry T. Truong,
Judge Pro Tempore. Affirmed.
Benjamin Ekenes, under appointment by the
Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
____________________
This dependency case commenced after father tried forcibly
to remove his infant son, A.J., from mother’s care. The juvenile
court assumed jurisdiction over A.J. based on multiple
allegations, including the undisputed allegation that A.J.
suffered broken ribs because of inflicted trauma. The
Los Angeles County Department of Children and Family Services
(DCFS) placed A.J. in the custody of an extended family member
and later in foster care. Ultimately, the juvenile court
terminated its jurisdiction and awarded mother full physical
custody and both parents joint legal custody.
On appeal father challenges the juvenile court’s
jurisdictional and dispositional orders. Father’s argument that
the juvenile court incorrectly referred to him as the biological
rather than presumed father at the dispositional hearing is moot
because the juvenile court has since recognized that father is
A.J.’s presumed father. Father’s argument that one of many
grounds for jurisdiction was not supported by substantial
evidence also is moot because even if no substantial evidence
supported that challenged ground, the juvenile court properly
assumed jurisdiction over A.J. Father’s argument that pursuant
to Welfare and Institutions Code1 section 224.2, social workers
were required to interview his and mother’s extended family
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
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members about A.J.’s potential Indian status also is moot
because A.J. has been returned to mother’s custody.
Although father submitted on DCFS’s recommendation
that A.J. be placed outside of mother and father’s custody, on
appeal he argues the juvenile court failed to consider reasonable
alternatives prior to removing A.J. from his custody. Assuming
this issue was properly preserved, father’s argument has no merit
because assessment of reasonable alternatives applies to removal
from a custodial parent, and father was not the custodial parent.
The statute that applies to a noncustodial parent, such as father,
requires that the parent request custody. Father did not request
custody at the dispositional hearing. Additionally, father
does not show the evidence at the time of the dispositional
hearing supported placing A.J. in his custody.
We affirm the juvenile court’s jurisdictional and
dispositional orders.
BACKGROUND
A.J. was born in May 2021 and detained in August 2021.
At the time the case started, A.J. lived with mother, who was 18
years old. In January 2022, the juvenile court found father to be
A.J.’s presumed father. In February 2022, a paternity test
showed that father was A.J.’s biological father.
1. Petition
Under section 300, subdivisions (a) and (b), DCFS alleged:
A.J. “was medically examined and found to be suffering from a
detrimental and endangering condition consisting of two healing
posterior rib fractures. The injuries are consistent with inflicted
trauma. Said injuries would not ordinarily occur except as the
result of deliberate, unreasonable, and neglectful acts by the
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child’s parents who had care, custody and control of the child.
Such deliberate, unreasonable and neglectful acts by the child’s
parents endangers the child’s physical health and safety and
place[s] the child at risk of serious physical harm, damage and
danger.” The juvenile court sustained the count under
section 300, subdivision (a). Father does not dispute this basis
for jurisdiction.
Under section 300, subdivisions (a) and (b), DCFS alleged:
Mother and father “have a history of engaging in violent
altercations in the child’s presence. On 07/12/2021, while the
mother was holding the child . . . in her arms the father forcibly
attempted to remove the child from the mother’s arms. The
parents pulled the child back and forth in an effort to remove the
child from one another’s hold. During the violent interaction over
the child, the child sustained a scratch to the child’s eyelid. On
prior occasions, the father[ ] struck the mother’s face, choked the
mother and struck the mother’s legs and arms with the father’s
fist causing the mother to fall to the ground. The mother
sustained a fractured neck and a fractured nose. Such violent
conduct on the part of the father against the mother endangers
the child’s physical health and safety and places the child at risk
of serious physical harm, damage, and danger.” The court
sustained this count under both subdivision (a) and
subdivision (b)(1). Father does not challenge this ground for
jurisdiction either.
DCFS alleged under section 300, subdivisions (b)(1) and (j):
Father and “the father’s former female companion [A.B.], mother
to the child’s half-sibling . . . have a history of domestic violence.
On August 16, 2019, the father struck the female companion on
the female companion’s mouth with the father’s hands and the
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female companion struck the father with female companion’s fists
and a brick. The female companion was arrested for . . .
[inflicting injury on a spouse or cohabitant]. On or about
July 2020, the female companion threw a water bottle at [an
unnamed person] . . . and attempted to run her over with the
female companion’s car. However, the father intervened and was
struck by the female companion’s car and sustained a fractured
ankle. The child’s [A.J.’s] half sibling is a current dependent of
the Juvenile Court due to the violent conduct by the father and
the father’s former female companion. Such violent conduct by
the father’s female companion and the father endangers the
child’s [A.J.’s] physical health and safety and places the child at
risk of serious physical harm, damage and danger.” The court
sustained these allegations only under subdivision (j). Father
disputes that he was the father of A.J.’s alleged half sibling.
2. Detention report
In its detention report dated September 4, 2021, DCFS
reported it had placed A.J. with H.W.
According to DCFS, the case commenced when an
unidentified caller reported that father visited A.J. and was upset
with mother because mother “engaged in sexual activities for
money.” The caller reported A.J. referred to “strange men” and
“ ‘daddy’ ” when the men were not A.J.’s father. The caller stated
father tried to take A.J. from mother and mother scratched A.J.
on the face while trying to prevent father from taking him away.
According to the caller, “[A]t some time during the incident, the
father handed [A.J.] to the paternal grandfather. Once Law
Enforcement arrived, the paternal grandfather gave [A.J.] back
to the mother.”
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Another unidentified caller reported A.J. had two posterior
rib fractures indicative of child abuse. A doctor later confirmed
that the fractures typically occur “from a squeezing force on the
rib cage” and the fractures appeared to have occurred in the
middle of July 2021.
DCFS reported that mother lived with A.J, maternal great
aunt, and two other children. Mother denied the allegation that
she worked as a prostitute. Mother indicated father attempted to
run off with A.J., and as mother tried to prevent father from
taking A.J., mother and father “tussl[ed]” with A.J. During the
“tussling,” either mother or father scratched A.J. Mother
reported that father was physically violent towards her on
multiple occasions, including choking her and hitting her with his
fist on her face, legs, and arms. According to mother, father
fractured her nose and neck.
Mother signed a safety plan and indicated she would obtain
a restraining order against father. Mother later told the social
worker that she had obtained an emergency protective order.
Mother acknowledged she was seeing a therapist for postpartum
depression.
Maternal great aunt, with whom mother lived, took three
days off work to supervise mother with A.J. Maternal great aunt
indicated mother was a “good care provider” for A.J. Mother
agreed to a safety plan with maternal great aunt or a therapist
supervising mother with A.J. Maternal great aunt also agreed to
the safety plan. (The record does not further indicate why the
safety plan did not remain in place.)
When social workers interviewed father, father stated he
“hear[d]” mother was “on the street with different men.” Father
indicated that on July 12, 2021, he confronted mother about
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allowing A.J. to be “around different men” and took A.J. from
mother. Father and mother “began tugging [A.J.] back and forth”
until paternal grandfather took A.J. Father denied any domestic
violence between him and mother. Father reported that he lived
with paternal grandfather and paternal great grandmother and
A.J. could live with them. There is no indication paternal
grandfather and paternal great grandmother agreed that A.J.
could live with them.
Father’s criminal history dates back to 2013 and includes
battery, burglary, assault with a weapon, receiving stolen
property, and taking a vehicle without consent.
A police report attached to the detention report recited that
on July 12, 2021, father told officers he had told mother “he was
taking full custody of the child and would not allow the child to
live” with mother. Mother told the officer that she may have
accidentally scratched A.J. when she tried to take A.J. from
father.
3. Jurisdiction report
In its jurisdiction report dated October 20, 2021, DCFS
reported A.J. was still placed with H.W.
Mother reported father previously had abused her; he
fractured her nose and neck and caused her to suffer two black
eyes. Mother further reported father “sporadically” requested to
see A.J. Mother said father told her that he had “ ‘altercations’ ”
with his prior female companion. Mother wanted full custody of
A.J. Mother started taking parenting classes when she learned
she was pregnant. Mother was participating in weekly individual
therapy since October 2020.
Father acknowledged the altercation with mother on
July 12, 2021. According to father, he had asked paternal
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grandfather “ ‘to take my kid.’ ” According to father, he initially
thought he had a child with his prior companion, but a blood test
revealed that the child was not his. DCFS indicated father
did not dispute domestic violence between himself and A.B., his
prior companion. DCFS also indicated that although it had
attempted to locate a paternity test, it could not verify whether
father was the biological father of A.B.’s child.
Father stated he wanted custody of A.J. He represented
that he had a stable home and a neighbor could babysit A.J.
when father was at work.
H.W., A.J.’s caretaker, reported that mother called every
day and visited three times a week. According to H.W., father
neither called nor visited A.J. Father stated he visited twice.
DCFS provided mother with referrals.
DCFS reported, “Neither parent is being considered as a
possible placement at this time as both parents created the
situation that le[]d to the child sustaining fractured ribs.”
On October 20, 2021, the court continued the
jurisdictional/dispositional hearing and ordered DCFS provide
father with low or no cost referrals for appropriate services. On
October 27, 2021, a social worker sent father low or no cost
referrals for parenting classes, domestic violence classes, anger
management classes, and therapy. DCFS also provided father
referrals to Miracles Counseling Center, Nurturing Parents,
El Nido for Domestic Violence support groups, and Achieving
Change Together.
4. Additional reports
DCFS reported that in December 2021, A.J. was placed in
foster care. Mother reported to a social worker that H.W. (A.J.’s
caregiver) and her friends had gone to mother’s residence to fight
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mother. An unidentified person reported that a group of people,
including H.W., “decided to give mother a ‘beat down.’ ” Mother
suffered a mild concussion, hematomas, and bruises.
5. Jurisdictional/dispositional hearing
No one testified at the April 14, 2022,
jurisdictional/dispositional hearing. Regarding disposition,
father’s counsel argued, “I will submit on the proposed case plan.
I spoke to my client. He indicates he’s enrolled in a parenting
class; so I ask that upon father presenting proof of that to the
social worker, he be given credit for any progress he’s made.”
Failing to recognize that the court previously had found that
father was a presumed father, counsel requested that father be
“named as presumed father today.” The juvenile court also failed
to recognize the prior identification of father as a presumed
father. The court stated, “Technically, legally [father is] not a
presumed father. He hasn’t lived up to that level yet . . . . I don’t
have a legal ground to make him presumed.”
The court declared A.J. a dependent under section 300,
subdivisions (a), (b)(1), and (j). The court ordered A.J. placed in a
suitable placement under DCFS’s supervision.
6. Subsequent events2
On April 12, 2023, the juvenile court found the conditions
justifying jurisdiction no longer existed. On April 19, 2023,
mother regained custody of A.J. The juvenile court entered a
final judgment indicating that father is A.J.’s presumed father.
2 We grant respondent’s unopposed motion to take judicial
notice of the minute orders dated April 12, 2023 and April 19,
2023 as well as the final judgment.
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The final judgment awarded mother full physical custody and
mother and father joint legal custody. The final judgment
indicated father’s visits were to be supervised because father
had not completed or made substantial progress in a domestic
violence treatment program for offenders, parenting classes, or
individual counseling.
DISCUSSION
“Mootness in the dependency context—as in any context—
depends on ‘whether the appellate court can provide any effective
relief if it finds reversible error.’ [Citations.]” (In re S.G. (2021)
71 Cal.App.5th 654, 663.) “An appeal may become moot where
subsequent events, including orders by the juvenile court, render
it impossible for the reviewing court to grant effective relief.”
(In re E.T. (2013) 217 Cal.App.4th 426, 436.)
Father requests the following relief in this appeal: “The
dispositional order removing A.J. from father’s custody and from
mother’s custody must be reversed. Additionally, this Court
should deem the minute order of the April 14, 2022 jurisdiction
and disposition hearing to control over the reporter’s transcript of
the April 14, 2022 hearing—specifically with respect to the
court’s ruling that father is A.J.’s biological father but not his
presumed father. Independently, the dispositional orders should
be conditionally affirmed, and the matter should be remanded
with direction the juvenile court order DCFS to conduct an initial
ICWA inquiry of A.J.’s extended family members.” With the
exception of father’s request to reverse the dispositional order,
which lacks merit, father’s arguments are moot.
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A. The Juvenile Court Has Recognized Father as a
Presumed Father; the Error at the Dispositional
Hearing In Denying Father Presumed Father Status
is Thus Moot
It is undisputed that father is A.J.’s presumed father. The
juvenile court erred at the dispositional hearing in referring to
father as a biological father. The juvenile court corrected its
error; the exit order specifies that father is a presumed father
and father was awarded joint legal custody.
Father requests that this court acknowledge that the
minute order from the dispositional hearing controls over the
reporter’s transcript. This relief would not assist father because
the minute order does not identify father as a presumed father,
and more important, the juvenile court has already found father
is a presumed father. Father’s argument that the juvenile court
erred in referring to him at the dispositional hearing as a
biological father is moot because this court can provide father no
effective relief. (In re E.T., supra, 217 Cal.App.4th at p. 436.)
B. We Decline To Exercise Discretion To Consider
Father’s Argument That the Section 300,
Subdivision (j) Count Is Not Supported By
Substantial Evidence
Father argues we should reverse the count sustained under
section 300, subdivision (j) because it is not supported by
substantial evidence where father was not A.B.’s child’s father
and the court struck the same allegations made under
section 300, subdivision (b)(1). Father “acknowledges” that
jurisdiction is appropriate under other counts but argues this
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court should exercise its “inherent discretion” to consider his
challenge. We decline to do so.
“Pursuant to the doctrine of justiciability, ‘ “ ‘[a] judicial
tribunal ordinarily may consider and determine only an existing
controversy, and not a moot question or abstract proposition.’ ” ’
[Citation.] Application of the doctrine of justiciability in the
dependency context leads to the conclusion that ‘[w]hen a
dependency petition alleges multiple grounds for its assertion
that a minor comes within the dependency court’s jurisdiction, a
reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need
not consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.’
[Citation.] This is true because no effective relief could be
granted in such a situation, as jurisdiction would be established
regardless of the appellate court’s conclusions with respect to any
such additional jurisdictional grounds.” (In re Madison S. (2017)
15 Cal.App.5th 308, 328–329.)
We decline to exercise our inherent discretion to consider
father’s challenge. (In re D.P. (2023) 14 Cal.5th 266, 282 [court
has inherent discretion to consider an issue even if technically
moot].) Father’s challenge to parentage is not based on
“particularly pernicious or stigmatizing conduct” and is not likely
to prejudice father in the current or future dependency cases
given the other jurisdictional bases unchallenged by father. (Id.
at pp. 285–286.)
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C. Subsequent Events Have Mooted Father’s Argument
That the Juvenile Court Erred In Removing A.J.
From Mother’s and Father’s Custody
First, father requests we reverse the dispositional order.
According to father, no substantial evidence supported the
finding that DCFS made reasonable efforts to avoid removal and
that there were no reasonable alternatives to removal. Father’s
argument is unpersuasive.
First, father’s argument is moot as to mother because the
juvenile court has since returned A.J. to mother’s custody. If this
court were to reverse the dispositional order and remand to the
juvenile court for a new dispositional hearing, the court would be
required to leave A.J. in mother’s custody. She was the custodial
parent at the time the dependency proceedings commenced and
“a court cannot award custody to a noncustodial parent [here
father] without first removing the child from the custodial
parent.” (In re Miguel C. (2011) 198 Cal.App.4th 965, 970.)
Father identifies no relief this court could provide him at a new
dispositional hearing.
Second, father’s argument that DCFS failed to show there
were no reasonable alternatives to removal is based on a statute
applicable to the custodial parent. Father, however, was not the
custodial parent at the time the dependency proceedings
commenced. We acknowledge that before removing a child from
the physical custody of a parent “with whom the child resides at
the time the petition was initiated,” the juvenile court shall find
“there are no reasonable means by which the minor’s physical
health can be protected without removing the minor from the
minor’s parent’s . . . physical custody.” (§ 361, subd. (c)(1).) That
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statute does not apply to a noncustodial parent like father. (In re
Anthony Q. (2016) 5 Cal.App.5th 336, 347, 350.)
The statute applicable to father as a noncustodial parent is
section 361.2, which allows a juvenile court to place a child with a
noncustodial parent who “requests custody” unless “placement
with that parent would be detrimental to the safety, protection,
or physical or emotional well-being of the child.” (§ 361.2,
subd. (a).) Here father never requested custody of A.J. at the
dispositional hearing. DCFS recommended against placing A.J.
with father and as noted above, father’s counsel stated, “I will
submit on the proposed case plan. I spoke to my client. He
indicates he’s enrolled in a parenting class; so I ask that upon
father presenting proof of that to the social worker, he be given
credit for any progress he’s made.” Because father did not
request custody at the dispositional hearing, the juvenile court
did not err in not placing A.J. in his care.
Finally, father identifies no evidence countering that
placing A.J. with father would have been detrimental to A.J. The
evidence demonstrated that father had a long history of abusing
mother. It also supported that he contributed to fracturing A.J.’s
ribs. No evidence supported the inference that father developed
insight into his abusive conduct. There was no evidence that
father had followed through with any of the referrals DCFS
provided. His counsel’s statement that father had started a
parenting class does not support the inference that A.J.
would not have been at risk if placed in father’s care.
Father’s argument that the court should have considered
placing A.J. in father’s custody “on the condition that the
paternal great-grandmother and the paternal grandfather
remain in the home” is unpersuasive because (1) father did not
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request that placement in the juvenile court and father identifies
no evidence that paternal great grandmother and paternal
grandfather agreed to such a plan; and (2) father identifies no
evidence that paternal great grandmother and paternal
grandfather could have ensured A.J.’s safety, especially given
that paternal grandfather had participated in father’s efforts
forcibly to remove A.J. from mother’s care.
D. Father’s Argument That Social Workers Should Have
Interviewed Extended Family Members About A.J.’s
Potential Indian Ancestry Is Moot
Father requests we “conditionally affirm” and remand to
the juvenile court for inquiry of extended family members as to
whether A.J. is an Indian child.
The record does not show that social workers interviewed
either mother’s or father’s extended family members. Assuming
arguendo that under section 224.2, subdivision (b), DCFS should
have asked extended family members about whether A.J. was an
Indian child, any such error would be moot because the juvenile
court returned A.J. to mother’s custody. (See In re Austin J.
(2020) 47 Cal.App.5th 870, 881, fn. 5 [where child returned to the
parents’ custody, question of noncompliance under The Indian
Child Welfare Act of 1978 was moot], superseded on another
point by amended section 224 (Assem. Bill No. 2944 (2019–2020
Reg. Sess.).) We decline to exercise our inherent discretion to
consider father’s challenge. (In re D.P., supra, 14 Cal.5th at
p. 282.)
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DISPOSITION
The juvenile court’s jurisdictional and dispositional orders
are affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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