In re L.W. CA2/4 ( 2021 )

Filed 1/28/21 In re L.W. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re L.W., a Person Coming B305049
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. Nos.
20CCJP00208,
20CCJP00208A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
M.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sabina A. Helton, Judge. Dismissed.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Jessica S. Mitchell, Deputy County Counsel,
for Plaintiff and Respondent.
Mother M.W. appeals from the juvenile court order
establishing jurisdiction over her son, L., pursuant to Welfare
and Institutions Code section 300.1 Mother contends that there
was insufficient evidence to establish that L. was at risk of harm.
However, after the juvenile court removed L. from mother’s
custody at the dispositional hearing, mother absconded with L. to
Mexico. We conclude that under the disentitlement doctrine,
mother may not obtain review of the juvenile court’s order and at
the same time be in contempt of the very order from which she
appeals. We therefore dismiss the appeal.
BACKGROUND
Petition and Detention Report
Mother and father, A.Z., have one child together, L., born in
2008.2 Prior to the incident at issue, mother had full custody of
L. and father lived in Mexico.
On November 21, 2019, the Los Angeles County
Department of Children and Family Services (DCFS) received a
referral regarding a domestic violence incident between mother
and her boyfriend. The reporting party stated that on November
19, 2019, mother drank a bottle of wine and then got into a
physical altercation with her boyfriend while L. (then 11 years
old) was sleeping in the home. The police reported damage and
broken items throughout the home. Mother’s boyfriend told
police that during the fight she bit him on the forearm and kicked
him.
1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2Father is not a party to this appeal.
2
In an interview with a DCFS children’s social worker
(CSW) on November 26, 2019, mother admitted drinking after L.
went to sleep and said the broken glass in the home was from a
glass jar of coins she accidentally dropped. Mother told the CSW
that she had an argument with her boyfriend but did not
remember biting him, although she did not deny doing so. In
addition, mother reported an incident in 2018 when she cut her
wrists, also after drinking alcohol. She told the CSW that she
was hospitalized after the 2018 incident “until I got sober,” but
did not receive further mental health services after her release.
L. denied witnessing any altercations between mother and her
boyfriend and reported that he had only seen mother drunk on
one occasion.
DCFS filed a petition on January 14, 2020 under section
300, subdivisions (a) and (b)(1). The petition alleged in
paragraphs a-1 and b-1 that on November 19, 2019, mother and
her boyfriend engaged in a violent altercation in the home where
mother and L. lived. During this altercation, mother bit her
boyfriend’s arm and kicked him in the head. The petition further
alleged that L. was previously under the juvenile court’s
jurisdiction due to mother’s violent conduct.3 In paragraph b-2,
the petition alleged that mother had a history of substance abuse
and was a current abuser of alcohol and marijuana. Mother was
under the influence of alcohol on November 19, 2019, while L.
was in mother’s care. The petition also alleged that mother had
3 The family had a prior dependency case based on a 2011
incident of domestic violence against mother by a different
boyfriend. The case closed in 2014 after mother fully complied
with court orders.
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prior criminal convictions for driving under the influence (DUI).
Paragraph b-3 alleged that mother had mental and emotional
problems, including suicidal ideations, and that she was
involuntarily hospitalized for her psychiatric condition in 2018.
At the detention hearing on January 15, 2020, the court
found there was a prima facie case for jurisdiction over L.
pursuant to section 300, and no reasonable means available to
protect L. without removing him. The court therefore removed L.
from mother, ordered monitored visitation, and placed the child
with maternal grandmother.
Jurisdiction and Disposition
DCFS filed its jurisdiction/disposition report on January
30, 2020. Mother told DCFS that she had stopped drinking
because “when I drink . . . [t]hings tend to get out of hand.” She
also claimed that the incident was “not that big of a deal” and
just “a simple argument” between her and her boyfriend. She
admitted getting a citation for DUI in 2019. Mother denied any
suicidal behavior and stated she had cut her wrist in 2018 by
accident while drunk. Mother told DCFS that father was in
Mexico and did not have frequent contact with L.
DCFS reported that L. could not safely return to mother’s
care because of mother’s violent behavior toward her boyfriend,
her unaddressed alcohol abuse, and her mental health issues,
which placed L. at risk and created a detrimental home
environment. DCFS also noted that mother was minimizing the
November 2019 incident.
The court held the adjudication hearing on January 31,
2020. Mother signed a plea waiver and entered a no contest plea
to paragraph b-2. Accordingly, the court found the allegations of
paragraph b-2 true as amended: that mother “has a history of
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substance abuse and is a current abuser of alcohol, which renders
the mother incapable of providing regular care and supervision of
the child. On 11/19/2019, the mother was under the influence of
alcohol while the child was in the mother’s care and supervision.
The mother has criminal convictions for . . . DUI. While under
the influence, mother has engaged in self-harm and violent
conduct. The mother’s substance abuse endangers the child’s
physical health and safety, creates a detrimental home
environment, and places the child at risk of serious physical
harm, damage, and danger.” The court dismissed the remaining
paragraphs. The court ordered L. to remain detained with
maternal grandmother under DCFS supervision.
In a last-minute information filed on February 21, 2020,
DCFS reported that mother tested positive for marijuana on
November 28, 2019 and January 30, 2020, then missed her
scheduled drug tests on January 31 and February 5, 2020.
Mother then tested positive for marijuana on February 8, 2020.
At the disposition hearing on February 21, 2020, mother
testified that she had a “drinking problem” but had been sober for
the past three months. She stated that she had been attending
Alcoholics Anonymous meetings, counseling, and parenting and
domestic violence classes. She wanted L. returned to her care
and was willing to have maternal grandmother live with them.
She also acknowledged that she had two DUI convictions and a
psychiatric hospitalization related to her drinking. Mother
denied regularly using marijuana and testified that she would
eat a marijuana edible cookie to help her sleep instead of taking
medication.
Counsel for DCFS argued that mother had “little to no
insight about her alcohol problem,” noting that mother’s
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completion of programs from her DUI convictions, as well as her
hospitalization after cutting herself, did not cause her to stop
drinking. DCFS’s counsel also contended that mother minimized
the recent domestic violence incident and continued to use
marijuana despite claiming to be sober. L.’s counsel also opposed
releasing the child to mother, citing mother’s pattern of drinking
and her recent drug testing with “high levels of marijuana
followed by a no-show.” Mother’s counsel argued for releasing L.
to mother, based on mother’s recent sobriety and her willingness
to cooperate with DCFS to put a safety plan in place.
Citing mother’s testimony, the court found she lacked
insight “into her true substance addiction issue,” and that “when
mother has excessive amounts of alcohol, it leads to violent and
self-harming behaviors.” Accordingly, the court found by clear
and convincing evidence that removal of L. from mother was
necessary and that DCFS made reasonable efforts to prevent
removal. The court ordered family reunification services and
monitored visitation for mother. The court set a three-month
progress report hearing for May 14, 2020 to assess mother’s
progress and see “if it’s possible to entertain a return to home of
mother.” Mother timely appealed on February 24, 2020.
Subsequent Developments
In a May 2020 last-minute information, DCFS reported
that mother had 17 scheduled drug tests between January 29 and
May 4, 2020, but failed to test on 10 occasions. The remaining
seven tests were positive for marijuana. Mother was displaying
COVID-19 symptoms from mid-March to mid-April. In April,
DCFS began to make arrangements for alternative placement of
L. after maternal grandmother stated she intended to return to
Mexico. Mother agreed to have her boyfriend serve as the
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caregiver. On May 7, 2020, the boyfriend told DCFS that he no
longer wished to be L.’s caregiver and had not seen L. since
“sometime last week.” Maternal great-grandmother reported
that mother had taken L. from her home on May 4, 2020 in the
middle of the night, stating that she was taking the child to
Mexico.
On May 12, 2020, the court found that mother was at large
with L. and issued a protective custody warrant for L. and an
arrest warrant for mother.4
The CSW called mother later that day. Mother answered
the phone and told the CSW that she was in Mexico and that the
court was asking too much of her. She told the CSW that she
could not find a drug and alcohol outpatient program and there
was “no other way around it.” Mother stated she planned to stay
in Mexico. When the CSW explained that the court had issued
warrants for her and for L., mother replied that it did not matter
because she was never going to return.
DISCUSSION
Mother challenges the court’s dispositional finding that
removal was necessary to protect L. from risk of harm.
Respondent DCFS contends that we should decline to reach the
merits of mother’s challenge and dismiss the appeal under the
disentitlement doctrine. We agree with respondent that
dismissal is warranted.
The disentitlement doctrine refers to a reviewing court’s
“inherent power to dismiss an appeal by a party who has refused
4We granted respondent’s request for judicial notice of the
court’s May 12, 2020 minute order and May 26, 2020 last minute
information.
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to comply with the orders of the trial court.” (People v. Puluc-
Sique (2010) 182 Cal.App.4th 894, 897.) It “is not a jurisdictional
doctrine, but a discretionary tool that may be applied when the
balance of the equitable concerns make it a proper sanction.”
(Ibid.) “‘The case for application of the doctrine is most evident
where, as here, the party is a fugitive who refuses to comply with
court orders or make an appearance despite being given notice
and an opportunity to appear and be heard.’” (In re Kamelia S.
(2000) 82 Cal.App.4th 1224, 1229 (Kamelia S.), quoting Adoption
of Jacob C. (1994) 25 Cal.App.4th 617, 624.)
In the dependency context, given the enormity of the
interest at stake for a parent, courts have rarely applied the
disentitlement doctrine to dismiss a parent’s appeal. One key
exception, however, is where a parent removes the child from the
jurisdiction in violation of the court’s orders. For example, in
Kamelia S., supra, 82 Cal.App.4th at p. 1225, a father absconded
with his daughter after the juvenile court placed the child in
foster care. The court held the father was barred by the
disentitlement doctrine from appealing the placement order as
“[i]t is illogical and inequitable for appellant to seek appellate
review of the very orders he has blatantly violated.” (Id. at p.
1227.) The court reasoned that the father’s “intentional absence
violates the orders of the juvenile court and his secluding the
minor child undermines and frustrates the entire purpose of the
dependency law,” making it “virtually impossible for the court to
extend its protection” to the child at an unknown location. Thus,
disentitlement was appropriate because the father was “entirely
responsible for paralyzing the court’s ability to implement the
procedures intended to benefit the interests of the dependent
minor. He ‘stands in an attitude of contempt to legal orders and
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processes of the courts of this state.’” (Id. at p. 1229, quoting
MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277; see also In
re E.M. (2012) 204 Cal.App.4th 467, 469-471 [applying doctrine to
dismiss mother’s appeal of jurisdictional findings because she
“willfully left the jurisdiction with her children while the petition
was pending”]; In re Guardianship of Melissa W. (2002) 96
Cal.App.4th 1293, 1299 [grandparents could not appeal denial of
guardianship petition after they caused minor to be removed
from the jurisdiction in violation of court order]; Adoption of
Jacob C., supra, 25 Cal.App.4th at pp. 623–624 [barring mother
who had abducted child from contesting petition to terminate
mother’s parental rights to other child].)
Mother acknowledges the application of disentitlement to
cases, such as this one, where a parent appeals a dependency
order and then “subsequently leaves the jurisdiction with the
child in violation of the court’s orders.” Nevertheless, she urges
us to reach the merits of her appeal because the case has been
fully briefed and there is “little to be gained” from dismissing the
appeal. We find the reasoning of Kamelia S. squarely applicable
to this case. Mother was an active participant in the underlying
dependency proceedings until she violated the court’s orders by
removing L. from his placement and taking him out of the reach
of the court’s protective powers. Her conduct “undermines and
frustrates the entire purpose of the dependency law.” (Kamelia
S., supra, 82 Cal.App.4th at p. 1229.) As such, we conclude that
mother cannot pursue her appeal of the very orders she has
flagrantly violated. (See In re E.E. (2020) 49 Cal.App.5th 195,
208 [“When a parent’s violation of a juvenile court’s orders makes
the most crucial aspect of that court’s job impossible, it stands to
reason they should not be able to ask a reviewing court to
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overturn the juvenile court’s orders.”].)
Under the circumstances, the doctrine of disentitlement is
applicable to mother. We therefore dismiss this appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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