In re M.M. CA2/8 ( 2021 )

Filed 10/22/21 In re M.M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.M., a Person Coming B310631
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19LJJP00244D)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Robin R. Kesler, Juvenile Court Referee. Dismissed in
part and affirmed in part.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
The juvenile court asserted jurisdiction over 13-year-old
M.M. after his mother tested positive for drugs and was
frequently absent from the home. The court placed M.M. with his
father, E.M., continued jurisdiction, and ordered services for the
father and the mother. The father alone appeals. We dismiss his
challenge to jurisdiction as nonjusticiable and otherwise affirm.
Statutory references are to the Welfare and Institutions Code.
I
We summarize the factual and procedural background.
A
The family has been involved with the Los Angeles County
Department of Children and Family Services before. The
Department investigated several referrals involving the mother’s
children between 2007 and 2017, all of which it deemed
unfounded or inconclusive. In 2019, the Department
substantiated a general neglect referral that alleged the mother
was “deeply addicted” to methamphetamine. The Department
found evidence of violence in the family home and of the home
lacking utilities. The mother declined to drug test. The mother
received voluntary family maintenance services until moving out
of Los Angeles County.
On November 5, 2020, the Department received a referral
alleging the mother was neglecting M.M. and his two younger
half brothers, 10-year-old W.R. and five-year-old D.R. The
mother and children were living with the maternal grandmother,
who told the Department the mother would leave the home for
2
days without telling the maternal grandmother where she was
going, return home full of energy, and then “knock[] out” the
entire next day. The grandmother reported when the mother was
home she fed the children fast food, and when she was not home
she did not leave enough food for the children despite receiving
child support money from both fathers. The maternal
grandmother lived on a limited income and was unable to provide
for the children on her own. When questioned the following
week, M.M. told the Department he had not seen the mother for
two days. The Department tried to contact the mother but
initially got no response. When a Department worker returned to
the home on November 18, the mother had not been home for two
weeks.
On November 19, 2020, the mother called the Department
back. She denied leaving the children for days or without food
and denied any substance use. She explained that her youngest
child, five-year-old D.R., was not enrolled in kindergarten
because his vaccination record was not up to date. Almost three
weeks later, she cried and admitted she still had not enrolled the
youngest child in school because she felt overwhelmed with his
brother W.R.’s schooling. She told the Department case worker
she felt “lost.”
On December 14, 2020, the mother tested positive for
amphetamine and methamphetamine at high levels. The mother
became upset when she heard the results, claimed she had never
used drugs, and asked for another test. As to the positive test
result, she said, “I don’t understand what happened.”
The next day, the Department received a phone call from
the two youngest children’s father. He said the mother did not
pick up the children as planned and caused a “melt down” by
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telling them she could not take them back to the maternal
grandmother’s home. The maternal grandmother had told the
mother to move out in the hope it would “help her to realize her
duties,” but instead the mother appeared to move into her
boyfriend’s motorhome.
On December 23, 2020, the Department obtained a removal
order against the mother based on her positive drug test and
arranged for W.R. and D.R. to remain with their father. The
maternal grandmother said she would need financial assistance
for M.M. to remain in her care. M.M. went to stay with his father
for the winter break.
B
We turn to the father.
Before the referral, M.M. stayed with the father one or two
weekends per month. The father was “erratic” picking up M.M.
for visits and had to be reminded by the maternal grandmother.
The Department noted the father did not know M.M.’s grade level
at school, the name of his school, or the names of his medical or
dental providers.
On December 2, 2020, the father said the maternal
grandmother had told him about the mother’s absences. The
father denied current drug use but disclosed his substance abuse
history. In the past he had “tried almost every kind of drug out
there.” He said he stopped using drugs in 2007, participates in
alcoholics anonymous meetings, and would submit to a drug test
if needed. The father lived in a two-bedroom apartment with the
paternal grandmother and paternal uncle. The grandmother and
uncle each had a bedroom, and the father slept in the living room.
A mattress leaned against the wall for M.M.’s use during visits.
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At a home visit the following week, the father said he did
not want to get in the middle of a “he said she said thing”
between the mother and maternal grandmother. The father said
he was willing to buy M.M. anything he needed and M.M. could
come live with the father if M.M. wanted.
After the mother’s positive drug test, the father expressed
concern about the mother having access to M.M. at the maternal
grandmother’s home. The Department advised it was relying on
the adults to be protective of M.M. while it secured a removal
order. The father took M.M. home for the winter break a couple
days later, and M.M. remained in his care.
The father has a criminal history of numerous arrests, as
well as convictions for theft in 1997; possessing, making, or
selling a dangerous weapon in 1999; and possessing a controlled
substance and driving under the influence in 2007. He served
time in jail and on probation.
All parties described M.M. as a quiet, mature, and well-
behaved boy who tries hard in school. He described himself as
self-sufficient and able to cook for himself when his mother was
not home.
C
On December 29, 2020, the Department filed a petition
under section 300, subdivision (b) on behalf of M.M. and his two
half brothers alleging the mother was an abuser of
methamphetamine and amphetamine which rendered her
incapable of caring for the children. The petition further alleged
the respective fathers knew or should have known of the mother’s
substance abuse and failed to protect their children.
At the December 31, 2020 detention hearing, the juvenile
court found section 300 applied to M.M., detained him from the
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mother, and released him to the father under the Department’s
supervision.
In response to the petition, the father alleged he had no
contact with the mother. He said they had used drugs together
when they were younger, but their relationship ended in 2007.
As to the present, he said, “As far as I knew, she was sober.” The
father admitted the maternal grandmother told him the mother
was becoming “unhinged.” The father took no action to protect
M.M. after learning this.
At the February 1, 2021 jurisdiction and disposition
hearing, the Department requested the court amend the section
300 petition to remove the allegation W.R. and D.R.’s father had
failed to protect them. The brothers’ father demonstrated
concern for the children and acted to protect them by petitioning
family court for custody. The court granted the request and
struck the allegation against this father.
The court heard argument from counsel. The Department
argued it was “hard to believe” M.M.’s father did not know of the
mother’s drug use given M.M.’s weekend visits, and emphasized
the father simply did not want to get between the mother and the
maternal grandmother.
The father’s counsel requested the court dismiss the
allegations as to the father. Regarding disposition, he asked the
court to close the case with an order granting him sole physical
custody of M.M. The children’s counsel expressed concern, noting
the father had previously been noncustodial, he had been
“checked out” prior to the dependency proceedings, and M.M. had
continuing need of protection. The Department’s counsel added
the father had declined a drug test and could benefit from
services because he had not previously had physical custody.
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The juvenile court sustained the section 300 petition as
amended and declared the three children dependents of the court.
It ordered family maintenance services for the father, including
two drug tests and family preservation services. The court
described 13-year-old M.M. as “parentified” by taking up the
mother’s responsibilities while living with her.
II
The father appeals, arguing insufficient evidence supported
the juvenile court’s jurisdictional finding the father failed to
protect M.M. He further argues the court abused its discretion
by not closing the case with an order granting him sole custody.
We dismiss the first claim and otherwise affirm.
A
An appellate court need not address jurisdictional findings
involving one parent when there are unchallenged findings
involving the other parent. (In re Briana V. (2015) 236
Cal.App.4th 297, 308–310 (Briana V.).) We generally view such
challenges as nonjusticiable. (Id. at p. 308; see generally In re
I.A. (2011) 201 Cal.App.4th 1484, 1489–1495.)
The father challenges the court’s assertion of jurisdiction
based on his failure to protect M.M. from the mother’s drug use
and neglect. Because the court’s jurisdictional findings against
the mother remain unchallenged, the outcome of this appeal will
not affect the court’s jurisdiction over M.M. Thus we can offer no
effective relief from jurisdiction, and the father’s claim is
nonjusticiable.
Nevertheless, an appellate court may choose to address the
merits of the jurisdictional challenge where the findings serve as
the basis for challenged dispositional orders, could be prejudicial
to the parent, could affect current or future dependency
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proceedings, or could have other consequences to the parent
beyond jurisdiction. (Briana V., supra, 236 Cal.App.4th at p.
309.)
This case has none of those circumstances. Because
jurisdiction attaches to M.M., not the father, the court would
have the power to impose dispositional orders based on the
findings against the mother alone. (See In re D.M. (2015) 242
Cal.App.4th 634, 645 [a jurisdictional finding against one parent
is good against both].)
The father argues the court’s assertion of jurisdiction
prejudices him because he “is now considered an ‘offending
parent’ when in fact he is a ‘non-offending parent’ under the
Welfare and Institutions Code.” The father does not provide the
section of the Welfare and Institutions Code he alleges
establishes his status as a nonoffending parent.
The father speculates the jurisdictional finding against him
may affect his parental rights in future dependency proceedings.
He cites section 361, subdivision (c)(1) for the rule that
jurisdiction findings may establish prima facie evidence a child
cannot safely remain in a parent’s home. But that rule narrowly
addresses jurisdictional finding under section 300, subdivision (e)
that a child under age five suffered severe physical abuse, and it
applies to the home of the parent with whom the child resided at
the time of injury. (§ 361, subd. (c)(1); see also In re G.C. (2020)
48 Cal.App.5th 257, 276–278 (dis. opn. of Menetrez, J.)
[surveying a common appellate error holding any jurisdictional
finding may establish prima facie evidence].) This court asserted
jurisdiction over 13-year-old M.M. pursuant to section 300,
subdivision (b) and removed him from the home of the mother,
not the father. In any event, the court found M.M. could safely
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remain in his father’s home and placed him there. The father’s
citation is inapposite.
Thus the father has not suggested any identifiable negative
effect on future dependency proceedings or alleged any other
adverse consequences. Accordingly, we decline to exercise our
discretion to reach the merits of the father’s challenge to
jurisdiction and dismiss this portion of his appeal.
B
The father also challenges the disposition, arguing the
juvenile court abused its discretion when it continued jurisdiction
over M.M. instead of terminating the case with an order placing
M.M. in the father’s custody. We review custody orders for abuse
of discretion. (In re Maya L. (2014) 232 Cal.App.4th 81, 102.)
The court has broad discretion to fashion disposition orders for
the child’s well-being. (In re Corrine W. (2009) 45 Cal.4th 522,
532.) The court did not abuse its discretion.
Section 361.2, subdivision (b) governs placement of a child
with a noncustodial parent following removal under section 300.
When a court orders a child placed in the custody of a formerly
noncustodial parent, it may terminate jurisdiction or order
custody subject to supervision. (§ 361.2, subd. (b)(1) & (3); In re
Austin P. (2004) 118 Cal.App.4th 1124, 1131 (Austin P.).)
This court chose the second route. The father’s case plan
was practical and limited. The court ordered him to do two
things: submit to two drug tests and participate in family
preservation services. The father initially said he was willing to
drug test “if needed,” but he had already declined one test. His
criminal history included drug-related arrests and convictions.
That the father did not know M.M.’s school or grade level
suggested he may be unprepared to take on the full burden of
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childcare. The court noted M.M. was “parentified” in his previous
home with the absentee mother. It was prudent to ensure M.M.
did not have to remain that way.
The court reasonably concluded the father, as a formerly
noncustodial parent with a criminal history, could benefit from
family preservation services in taking up new responsibilities and
supporting his son. (See § 361.2, subd. (b)(3); Austin P., 118
Cal.App.4th at pp. 1134–1135.) The court’s orders were properly
tailored to support the father’s transition to custodial parenthood
and M.M.’s transition to his father’s home. There was no abuse
of discretion.
DISPOSITION
We dismiss the father’s appeal as to jurisdiction. We
otherwise affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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