In re K.A. CA2/5 ( 2021 )

Filed 7/20/21 In re K.A. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re K.A. et al., Persons Coming B308091
Under Juvenile Court Law.
_________________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 20CCJP01315)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Judge Pro Tempore. Affirmed.
Pamela Deavours, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
________________________
Mother and father are the parents of a 13-year-old boy
(K.A.) and his 8-year-old brother (A.A.). The juvenile court
asserted jurisdiction over the minors based on mother’s domestic
violence with stepfather, her alcohol abuse, her emotional abuse
of the children, and father’s sexual abuse of another child. On
appeal, father challenges the jurisdictional finding against him,
as well as the juvenile court’s order removing the children from
his care. He argues there was insufficient evidence the children
were put at risk by his sexual abuse of another child. He also
contends the juvenile court applied the wrong statute at
disposition in support of removal. We find the challenge to the
jurisdictional findings non-justiciable. We also find no error in
the disposition order and, therefore, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Department of Children and Family Services
(Department) began investigating the family in March 2020 when
older son K.A. reported to the police that he saw mother punch
stepfather. Mother told the social worker she had been in a
relationship with stepfather for three to four years, and
acknowledged slapping him the day before. She denied prior
incidents of domestic violence with stepfather.
According to K.A., stepfather and mother hit each other
every two to three months. The day prior, mother and stepfather
had come home drunk from a party and had physically fought.
K.A. reported that he had previously had suicidal thoughts;
younger son A.A. also said he wanted to “hurt” himself because
his “ ‘parents are always fighting.’ ” Both boys denied any sexual
abuse.
Father’s whereabouts were unknown. K.A. said father left
the family about five years earlier. Mother said father did not
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financially support the children, she and father had a history of
domestic violence, and mother had not heard from him in over a
year.
The Department filed a petition alleging mother and
stepfather engaged in domestic violence in the children’s
presence, mother’s violent altercations caused the children
emotional distress, and mother abused alcohol.1 The court
detained the children who were placed with maternal aunt. The
court found that father was the children’s presumed father and
ordered the Department to conduct a due diligence search to
locate him.
In April 2020, the Department reported that father had
been deported to his home country of Guatemala. The court
appointed counsel for father, who waived his appearance at the
jurisdiction hearing.
K.A. told the social worker that father had hit him when
K.A. was “a kid,” however, K.A. expressed a desire to talk with
father over the phone and visit him in Guatemala. A.A. said he
remembered when father “fought” with mother and hit her, and
that he was not now seeking contact with father. Father told a
social worker over the phone that if mother failed to reunify with
the children, he wanted them to reside with him in Guatemala.
After filing the initial petition, the Department discovered
that the juvenile court had sustained findings of sexual abuse
under Welfare and Institutions Code section 300, subdivisions (d)
and (j) against father (not stepfather) in a 2018 case involving his
1 The petition also included an allegation that mother
physically abused the children which was later stricken.
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other sons, the one-year-old twin, half-brothers of K.A. and A.A.2
In that case, the juvenile court found that father sexually abused
the eight-year-old daughter of his girlfriend. The girlfriend’s
daughter was not related to K.A. or A.A., but was half-sister to
the one-year-old twins.
In the present case, the Department proceeded to file an
amended petition alleging that the juvenile court had previously
found K.A. and A.A.’s half-brothers to be dependents of the court
based on father’s sexual abuse of the twins’ half-sister. Father
had been found in the prior juvenile case to have “fondl[ed]” that
child’s vagina, buttocks, and breasts with his hands. The petition
further alleged that father had threatened his girlfriend’s
daughter if she were to disclose the sexual abuse. Father failed
to comply with the court’s case plan or reunify with his
girlfriend’s daughter or her siblings, including the twins. In the
current case, the petition alleged that father’s sexual abuse of the
girlfriend’s daughter endangered K.A. and A.A. under Welfare
and Institutions Code section 300, subdivisions (b), (d) and (j).
At the jurisdiction hearing, the court took judicial notice of
the sustained petition, case plan, and minute orders in the twins’
case.3 In the current case, the court sustained the petition’s
2 All further undesignated statutory references are to the
Welfare and Institutions Code
3 Father argues the juvenile court erred in taking judicial
notice of the prior sustained petition, minute orders, and case
plans. However, father did not object in the juvenile court, and
has therefore forfeited this claim. (In re S.B. (2004) 32 Cal.4th
1287, 1293.) The juvenile court properly took judicial notice of
“ ‘ “the truth of facts asserted in documents such as orders,
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allegations against mother and father, and ordered K.A. and A.A.
removed from their parents’ care. The minute order indicated the
court ordered removal under section 361, subdivision (a)(1)
[limits on parental control], subdivision (c) [substantial danger to
the physical health, or physical or emotional well-being of the
minor], and subdivision (d) [clear and convincing standard], as
well as section 362, subdivision (a) [“any and all reasonable
orders” for the custody of dependent children]. The court granted
the parents monitored visits and ordered the Department to
assist them with reunification services. Father timely appealed.4
DISCUSSION
1. Justiciability
Father’s only arguments on appeal deal with the
jurisdiction and removal orders based on the prior sexual abuse
of his girlfriend’s daughter. Father does not challenge the
juvenile court’s findings based on mother’s conduct. The
Department urges us not to reach the merits of father’s appeal for
the very reason that the juvenile court sustained unchallenged
jurisdictional findings against mother.
“ ‘When 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
findings of fact and conclusions of law, and judgments.” ’ ” (In re
Tanya F. (1980) 111 Cal.App.3d 436, 440.)
4 Mother is not a party to this appeal.
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statutory grounds for jurisdiction are supported by the evidence.’
[Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.) Stated
otherwise, when jurisdiction over a dependent child would exist
even if we were to conclude some jurisdictional findings were in
error, the appeal may be treated as not justiciable. (See, e.g., In
re Briana V. (2015) 236 Cal.App.4th 297, 308.)
The rule of justiciability notwithstanding, an appellate
court may exercise its discretion to consider a challenge to a
jurisdiction finding that may otherwise be considered moot if the
challenged finding “(1) serves as the basis for dispositional orders
that are also challenged on appeal [citation]; (2) could be
prejudicial to the appellant or could potentially impact the
current or future dependency proceedings [citations]; or (3) ‘could
have other consequences for [the appellant], beyond jurisdiction’
[citation].” (In re Drake M. (2012) 211 Cal.App.4th 754, 762–
763.)
Here, neither mother nor father appeals the jurisdictional
findings against mother. Father concedes the court will retain
jurisdiction over the minors based on the sustained allegations
against mother, but argues we should exercise our discretion to
reach his jurisdictional challenge. He contends that, under In re
Drake M., his challenge to the findings against him is justiciable
because the findings served as the basis for the removal order
from which he also appeals. At the same time, father
acknowledges that he was not the custodial parent and did not
seek custody of the children. Under these circumstances, we
decline to exercise our discretion to consider his challenge to the
jurisdiction findings against him.5
5 Father argues we should consider the jurisdictional
findings against him because they carry a stigma. (See In re
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2. The Court Did Not Err in Ordering Removal
Father’s second argument on appeal is that the trial court
erred in issuing the removal order.
a. Father’s statutory argument misunderstands the
juvenile court’s minute order. He presents no error.
Father argues that because he was a noncustodial parent
who did not seek custody of sons, removal was inappropriate
under section 361, subdivision (d), and the court should have
applied section 361, subdivision (a)(1), and section 362,
subdivision (a). Appellant misreads the minute order, which
indicates the juvenile court ordered removal of sons under all
three of those statutes. Father has not demonstrated error.6
b. Father forfeited his argument that the trial court
failed to state its reasons for removal
Father also argues the juvenile court failed to state facts
Drake M., supra, 211 Cal.App.4th at pp. 762–763.) While often a
legitimate consideration in determining the exercise of our
discretion to address such findings, here, any stigma attached not
to the jurisdictional findings in the current case, but to the
juvenile court’s earlier sustained finding in Los Angeles County
Superior Court case number 18CCJP01235 that father had
sexually abused his girlfriend’s daughter. (Father appealed those
findings (case No. B289599). The appeal was dismissed as
abandoned under In re Phoenix H. (2009) 47 Cal.4th 835, 838.)
6 Respondent argues father forfeited his claim by not
objecting on this basis below. However, we exercise our
discretion to reach the merits of his claim. (See In re Dakota J.
(2015) 242 Cal.App.4th 619, 630 [whether a juvenile court has
statutory authority to order removal presents a question of law
which may be reviewed in absence of an objection below].)
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supporting removal as required by section 361, subdivision (e).
The statute provides that the trial court “shall state the facts on
which the decision to remove the minor is based.” Father did not
object below to the absence of a statement of reasons, thus, his
argument on appeal is forfeited. If father had brought the issue to
the trial court’s attention, any defect could have been easily cured.
We do not countenance attorneys lying in wait and raising the
point for the first time on appeal, especially in a case of this
nature. (See In re S.B., supra, 32 Cal.4th at p. 1293 [“[A]
reviewing court ordinarily will not consider a challenge to a ruling
if an objection could have been but was not made in the trial
court”].)
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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