In re N.D. CA2/5 ( 2022 )

Filed 1/14/22 In re N.D. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
In re N.D., a Person Coming Under B311099
the Juvenile Law.
(Los Angeles County
___________________________________ Super. Ct. No.
LOS ANGELES COUNTY 20CCJP04990A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Jean M. Nelson, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
A.F. (Father) appeals from dependency court jurisdiction
and disposition orders concerning his newborn son N.D. The
court initially removed N.D. from his mother (Mother) because of
her drug abuse and mental illness, and the court gave custody of
N.D. to Father. We primarily consider whether substantial
evidence supports the juvenile court’s later finding that Father
disobeyed the removal order by returning N.D. to Mother’s care
without authorization—which the court found required a further
order removing N.D. from Father’s care too.
I
A
Mother and N.D. tested positive for amphetamine and
methamphetamine when N.D. was born. Mother admitted she
used methamphetamine four months into her pregnancy (which
is when, according to her, she found out she was pregnant);
Mother claimed she stopped using at that time, but she had no
explanation for the positive drug test. Mother also revealed she
had previously been diagnosed with mental health problems,
including posttraumatic stress disorder and attention deficit
hyperactivity disorder. The Los Angeles County Department of
Children and Family Services (the Department) was alerted to
the positive drug test results.
The following day, the Department contacted Father as
part of its investigation into N.D.’s welfare. He worked as a truck
driver, which meant that he was often away from home on the
road. Father claimed he was unaware of Mother’s drug use and
he said he was unconcerned about leaving newborn N.D. in
Mother’s care. When N.D. was ready for discharge from the
hospital and the Department obtained an order removing him
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from Mother’s custody, Father told a Department social worker
that he wanted N.D. placed with the child’s paternal
grandparents.
The Department filed a dependency petition asking the
juvenile court to assume jurisdiction over N.D. based on Mother’s
drug abuse and mental and emotional problems. At the initial
detention hearing in late September 2020, the court detained
N.D. from Mother and released the child into Father’s custody,
with conditions. The court permitted visitation between N.D. and
Mother, but only with a Department-approved monitor present
for the visits.
At a later jurisdiction hearing, the juvenile court sustained
the dependency petition allegations against Mother. (Failure to
protect allegations that were included in the petition as against
Father were stricken by the court.) The court continued its prior
placement orders in effect: custody of N.D. to Father with only
monitored visitation for Mother. The court denied Father’s
request to terminate dependency court jurisdiction.
B
Later, on December 17, 2020, Mother called the
Department and said Father left N.D. with her some four days
earlier and had been unreachable. Explaining, Mother told the
Department that she agreed to give Father a ride to the airport.
When she arrived, Father unexpectedly brought N.D. with him
and, after they all stopped at an apartment building at Father’s
request, Father left the car and never returned (Mother drove
3
away with N.D. after waiting for over an hour). 1 Mother later
called the paternal grandparents and asked if they knew where
Father was, but they did not. The paternal grandparents were
also unwilling to take in N.D. when Mother tried to give the baby
to them.
The day after Mother called the Department, Father
showed up at the home where Mother was staying with N.D.; a
Department social worker was also at the residence at the time.
In response to questions from the social worker, Father admitted
he left N.D. with Mother unmonitored and said he had no
explanation for why he was not able to make alternative
childcare arrangements. Father said he was traveling to the
airport to travel to a job interview in Wisconsin and missed his
flight at the airport, which was scheduled to depart at 7:30 a.m.
Father claimed he was inside the apartment building where he
got out of the car (to “‘handle[ ] business’”; he would not
elaborate) for only “a short time” and Mother was gone when he
came back outside. When asked why he left N.D. with Mother
unsupervised for so long, Father had no answer. When asked
what his plans were for N.D., Father said he did not have a plan
and added he wanted a DNA test because he did not “ ‘believe
this baby [N.D.] is mine anyway.’”
In response to Father leaving N.D. in Mother’s care without
a monitor in violation of the juvenile court’s order, the
Department filed subsequent and supplemental dependency
1
Father did not bring any of the usual items (bottle, clothes,
diapers, etcetera) that parents bring when taking a baby on a
trip, and Mother went to a store to purchase such items after
Father left and did not return.
4
petitions.2 The juvenile court held a hearing on the petitions over
the course of two (non-consecutive) days in February and March
of 2021, and both Father and Mother testified.
Mother testified Father left N.D. with her from December
14, 2020, through December 18, 2020, and she did not know
where Father was during that time. She claimed she left the
apartment building where Father asked to stop only because she
got impatient (after 20 to 30 minutes), she did not call Father
thereafter because his phone was in her car, and she had no
concerns about Father parenting the child. Father testified
generally along the lines of his prior statement to the
Department, though he added that before he asked Mother for
the ride to the airport his father said he did not want Father and
N.D. staying in their home because Father’s grandmother had
come down with pneumonia.3 Father also added he was inside
the apartment building for 10-12 minutes “tops” until he came
back outside and Mother and N.D. were gone. Father said he
was unable to call Mother or anyone else because all of the phone
2
“A subsequent petition is filed when new, independent
allegations of dependency can be made after the court has
initially declared a minor to be a dependent child. [Citation.] A
supplemental petition is filed, inter alia, when a dependent child
has been placed with a parent, but the department now seeks to
remove the child, effectively requesting the court to modify its
previous placement order. [Citation.]” (In re Barbara P. (1994)
30 Cal.App.4th 926, 933 (Barbara P.).)
3
Father testified he planned to take N.D. with him to
Wisconsin but had not obtained a social worker’s approval to do
that because it was “spur of the moment.”
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numbers were in his phone and he had not committed any to
memory.4
The juvenile court sustained both the subsequent and
supplemental petitions as pled. The court found several aspects
of Father’s testimony (and Mother’s testimony) incredible: that
Father would stop at an apartment building early in the morning
before a 7:30 a.m. flight to transact unspecified business, that
Father planned to take N.D. with him to Wisconsin when he had
not brought any belongings along for the baby, and that Father
would choose Mother to give him a ride to the airport when that
“was the very person who is not supposed to have contact with
the baby.” As the juvenile court put it: “I don’t know what they
were doing that morning, but I’m not convinced [Father] was
going to the airport and he intended to bring the baby with him.
To be out that early in the morning . . . and not have gear for the
baby when taking a flight and on a trip that is going to be two
weeks long, those pieces do not fit together in a way that makes
sense. Something is not being told to the court and I think that
something else was going on and I think leaving the baby at all
with [Mother] is a danger and that has been proven by the
circumstances in that [Mother] either took off with the baby,
proving herself unreliable, or as she originally said she doesn’t
know what happened to Father and she didn’t know what to do,
which means [Father] is not reliable.”
Proceeding to disposition on both petitions, the juvenile
court removed N.D. from Father’s custody and ordered the
Department to find a suitable placement for the child. In making
4
Father testified he tried to call the Department but his
repeated calls were directed either to the wrong Department
office or “some type of court.”
6
that order, the court found “more than enough evidence for
removal” because “what happened here was extraordinarily
dangerous and the child essentially went missing.” The court
further remarked it was concerned that Father would not be
completely forthcoming if N.D. were again released to him. The
court ordered monitored visitation for Father and various
services, including individual counseling.
II
Father presents several challenges to the juvenile court’s
findings and orders, but all fail under the applicable standards of
review that incorporate due deference to the court’s credibility
findings. Father indisputably violated the court’s order
prohibiting unmonitored contact between N.D. and Mother—who
was previously found to pose a risk of harm to the child, as
Father well knew. The juvenile court was not required to believe
Father’s explanation for the violation and, indeed, there is ample
basis in the record for the court’s decision to disbelieve it. These
two observations essentially resolve all of Father’s contentions on
appeal: the asserted lack of sufficient evidence supporting the
court’s findings on the petitions and its order removing N.D. from
Father’s custody, plus the asserted abuse of discretion in limiting
Father to monitored visitation and compelling him to participate
in individual counseling.
A
“A [Welfare and Institutions Code] section 387
supplemental petition is used to change the placement of a
dependent child from the physical custody of a parent to a more
restrictive level of court-ordered care.” (In re T.W. (2013) 214
7
Cal.App.4th 1154, 1161 (T.W.).) To sustain such a petition, a
juvenile court must find that a previous disposition order was
ineffective in protecting the child. (In re F.S. (2016) 243
Cal.App.4th 799, 808, disapproved on another ground in
Conservatorship of O.B. (2020) 9 Cal.5th 989 (O.B.).) We review a
Welfare and Institutions Code section 387 finding using the
familiar substantial evidence standard of review, which accords
deference to a juvenile court’s credibility findings. (T.W., supra,
at 1161; In re H.G. (2006) 146 Cal.App.4th 1, 11-12; see also
People v. Williams (2015) 61 Cal.4th 1244, 1262 [“We defer to the
trial court’s credibility assessments ‘based, as they are, on
firsthand observations unavailable to us on appeal’”].)
“A subsequent petition is filed [under Welfare and
Institutions Code section 342] when new, independent allegations
of dependency can be made after the court has initially declared a
minor to be a dependent child.” (Barbara P., supra, 30
Cal.App.4th at 933.) Akin to a juvenile court’s determination of
an original petition under Welfare and Institutions Code section
300, we review a court’s findings sustaining a Welfare and
Institutions Code section 342 petition using the same substantial
evidence standard of review. (In re A.B. (2014) 225 Cal.App.4th
1358, 1364.)
The same evidence supports the juvenile court’s findings on
both the supplemental and subsequent petitions, and that
evidence is well more than substantial. There is no dispute that,
at the relevant time, Father was obviously aware the juvenile
court had already assumed jurisdiction over N.D. based on a
finding that Mother’s drug use and mental problems presented a
substantial risk of causing serious physical harm to the child.
There is also no dispute that Father left N.D. in Mother’s care for
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a time (whether 10-12 minutes, 20-30 minutes, or over an hour,
depending on which of the various accounts are believed) when
visiting the apartment building early in the morning—and then
left the child in Mother’s custody for four days while making
what are at best seen as rather minimal attempts to locate the
child and regain custody of him. These facts alone (particularly
leaving the child in an automobile driven by Mother, who was
known to have a drug problem) establish a sufficient predicate for
jurisdiction under Welfare and Institutions Code sections 342 or
387. That the juvenile court found many aspects of Father’s
explanation for leaving the child with Mother not credible—with
good reason, based on our review of the record—only reinforces
the correctness of the juvenile court’s findings.
B
Father additionally challenges the juvenile court’s decision
to remove N.D. from his custody and order the child suitably
placed by the Department. Under Welfare and Institutions Code
section 361, subdivision (c), a juvenile court may not remove a
child from a parent’s custody unless the court finds “[t]here is or
would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the
minor were returned home, and 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.” (Welf. & Inst. Code, § 361, subd. (c)(1).) “‘The parent
need not be dangerous and the minor need not have been actually
harmed before removal is appropriate. The focus of the statute is
on averting harm to the child.’ [Citation.] The court may
consider a parent’s past conduct as well as present
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circumstances. [Citation.]” (In re N.M. (2011) 197 Cal.App.4th
159, 169-170.)
We review the juvenile court’s order removing N.D. from
Father’s custody for substantial evidence, but we apply that
standard of review more stringently given the clear and
convincing standard of proof that applies in the juvenile court.
(In re V.L. (2020) 54 Cal.App.5th 147, 154-155; see also O.B.,
supra, 9 Cal.5th at 1011.) Due deference to the juvenile court’s
credibility determinations, however, is still required. (O.B.,
supra, at 995-996 [“[W]hen reviewing a finding that a fact has
been proved by clear and convincing evidence, 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. Consistent
with well-established principles governing review for sufficiency
of the evidence, in making this assessment the appellate court
must view the record in the light most favorable to the prevailing
party below 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”].)
We find it unnecessary to repeat what we have already
summarized in connection with the juvenile court’s findings
sustaining the supplemental and subsequent petitions. Suffice it
to say Father’s decision to leave N.D. with Mother in violation of
a court order, his implausible explanation for doing so, and his
statement to the social worker that he did not believe N.D. was
really his child, satisfy the somewhat more demanding standard
of review and warrant affirmance of the juvenile court’s removal
order.
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C
The juvenile court ordered monitored visitation for Father
and required him to participate in individual counseling. Neither
was an abuse of discretion. (See, e.g., In re D.P. (2020) 44
Cal.App.5th 1058, 1070-1071 [juvenile court visitation orders and
disposition case plan reviewed for an abuse of discretion] (D.P.).)
Monitored visitation was obviously justified in light of Father’s
knowing disregard of prior court orders made to ensure N.D.’s
safety. And the trial court was within its broad discretion (Welf.
& Inst. Code, § 362, subd. (d); D.P., supra, at 1071) to conclude
individual counseling was warranted too; as the juvenile court
itself explained, “Father needs to come to terms with the
decisions he’s made here and that is what you do in individual
counseling . . . you work through the errors that were made[,]
why you made them, and how you plan to avoid them.”
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DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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