IN RE: DALTON R.

Reset A A Font size: Print

Court of Appeal, Second District, California.

IN RE: DALTON R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANITA R., Defendant and Appellant.

B217023

Decided: February 25, 2010

Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant. Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O'Crowley, Senior Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Anita R. (Mother) challenges the sufficiency of the petition and the evidence supporting dependency court jurisdiction over her son, Dalton R., born in May 1995, under Welfare and Institutions Code section 300, subdivision (b) ( section 300(b)) (failure to protect).1  We conclude that Mother forfeited her challenge to the sufficiency of the petition, and in any event the purported pleading defect does not require reversal because it provided meaningful notice of the bases for jurisdiction and there was sufficient evidence presented at the jurisdictional hearing to support the assertion of jurisdiction under section 300(b).  We affirm.

BACKGROUND

Mother and Scott B. (Father) never married or lived together.   A February 2008 family law court order afforded joint physical custody of Dalton, with a set custody and visitation schedule.2  Although Dalton was a gifted student, he had a history of tantrums and anger management issues;  he was on medication for diagnoses of oppositional defiant disorder and attention deficit disorder.   In March 2008, Mother was detained by the police for being under the influence of Valium.   Because of escalating altercations and problems between Dalton and Mother, in October 2008 Father gave Dalton a cell phone to call him in emergencies.

On November 6 and 10, 2008, the Los Angeles County of Children and Family Services (DCFS) received referrals that Mother abused and neglected Dalton.   DCFS substantiated two reports that (1) Mother hit Dalton in the back of his head during an argument in which Mother refused to allow Dalton to go to his baseball practice if Father was going to be there and (2) Mother got upset over Dalton hugging Father when she picked up Dalton from Father's home and accelerated her car with Dalton halfway inside, causing him to fall out of the car to the ground.   Police officers conducting a welfare check on Mother's home found the home to be filthy and Mother to have the appearance of being on drugs.

Before school on the morning of November 18, 2008, Mother and Dalton got into an argument about the condition of his cadet uniform.   Mother got angry when she discovered the cell phone that Father had given to Dalton without her knowledge and she attempted to take away Dalton's iPOD. Mother chased Dalton, who dropped or threw his iPOD and broke it.   Dalton opened the front door and part of the window glass, which was already broken, shattered.   Mother thought Dalton intentionally had broken the window and punched the side of Dalton's cheek with her fist.   According to Mother, Dalton bruised his cheek when he got angry at himself for breaking his iPOD and threw a temper tantrum, banging his head on the floor.   After Father picked up Dalton at school that evening and saw the bruise on his face, they filed a police report about the incident.

Dalton was detained in foster care for approximately a week and then placed with his paternal aunt until January 29, 2009, when he was placed home with Father, where he remains.   DCFS asked Mother to drug test on November 19, 2008, and January 21, 2009, but she refused.   In December 2008, Mother stormed out of a team decision-making meeting.

According to Mother's physician, Mother had an issue with prescription drugs in the past and he “ ‘had to cut her off many times.’ ”   The doctor suspected that Mother was “ ‘using something else like methamphetamines' ”;  the last time he saw Mother in October 2008, she had lesions on her face, had lost much weight in a short amount of time, and she had “ ‘a lot of problems, a lot of issues that have spiraled down since her father's death.’ ”

Mother was afforded monitored visits.   But because of Mother's angry and harassing telephone calls to Father and Dalton, and her opposition to Dalton's counseling with a therapist whom Dalton liked, Dalton refused to visit with Mother in late January 2009.   On February 13, 2009, the court ordered Dalton into therapy and that until the next hearing, Mother's visits were to be with Dalton's consent.   Mother's harassing telephone calls to Father continued;  the calls upset Dalton, who would break out in a rash after talking with Mother.   At the hearing on March 12, 2009, the court ordered that Dalton, but not Father, was to initiate monitored calls to Mother, and that until the jurisdictional hearing on April 21, 2009, Mother was not to attend Dalton's baseball games and practices.

In an April 21, 2009 last minute information for the court, DCFS stated that Father had completed his parenting and counseling program and had made positive progress in his communication and discipline skills.   Dalton was obtaining individual therapy, his school grades had significantly improved, and he had not demonstrated any emotional or behavioral problems in Father's care.   Mother had not yet enrolled in any programs, notwithstanding DCFS's no cost or low cost referrals.   Mother also had not yet complied with a March 12, 2009 court order that Mother return Dalton's computer, school textbooks, and sports trophies.   DCFS no longer had any concerns about Dalton's safety with Father and recommended that jurisdiction be terminated with a family law order giving Father sole physical custody, with monitored visitation for Mother.

At the jurisdictional hearing on April 21, 2009, the court admitted the DCFS reports of January 29, 2009, March 12, 2009, and April 21, 2009.   The parties did not offer any other witnesses or documents.   The court sustained two counts of the petition, as amended, finding that Dalton was a dependent of the juvenile court pursuant to section 300(b), based on Mother's history of substance abuse and the November 18, 2008 physical altercation with Dalton.3  On April 27, 2009, the juvenile court terminated jurisdiction and issued a custody order awarding physical and legal custody to Father.   Mother was afforded supervised visitation.   Mother appealed from the April 21, 2009 order.

DISCUSSION

For the first time on appeal, Mother challenges the sufficiency of the allegations of the amended petition to state a basis for the assertion of dependency jurisdiction under section 300(b).  Mother also challenges the sufficiency of the evidence.

In the initial pleading stage, the role of the dependency petition is to provide meaningful due process notice to the parents of the essential facts establishing at least one ground of juvenile court jurisdiction.  (In re S.O. (2002) 103 Cal.App.4th 453, 460.)   If the parent believes that the allegations do not support a finding that the child falls within one of the statutory bases for jurisdiction, the parent has the right to bring a motion akin to a demurrer.  (Ibid.)

There is a split of authority as to whether a challenge to the sufficiency of a juvenile dependency petition is forfeited if not raised below.   The Court of Appeal's First District, Division Five, in In re David H. (2008) 165 Cal.App.4th 1626 (David H.) discussed the previous cases and sided with those cases holding that the issue is forfeited if not raised in the dependency court, “although the reasoning of the cases requires updating.”  (David H., supra, 165 Cal.App.4th at p. 1638.)  David H. held that the no-forfeiture rule of Code of Civil Procedure section 430.80 did not apply in dependency proceedings.  (Id. at p. 1640.)

David H. is consistent with the reasoning in In re Athena P. (2002) 103 Cal.App.4th 617 (Athena P.).   In Athena P., the parent did not challenge the sufficiency of the petition below, and did not claim the petition afforded prejudicially inadequate notice of the factual allegations against her.   Under those circumstances, the Court of Appeal held that any insufficiency in the allegations of the petition constituted harmless error if the evidence presented at the hearing was sufficient to assert dependency jurisdiction.   (Id. at pp.   627-628.)   Whether or not the issue is forfeited for failure to raise it below, “the only issue before us is the sufficiency of the evidence at the jurisdictional hearing.”  (Id. at p. 628.)

Our Supreme Court has stated that even in dependency cases the “forfeiture rule is not automatic,” but our “discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.”   (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

We conclude that this is not an appropriate case to excuse Mother from the forfeiture rule because she does not argue that she was denied adequate notice or prejudiced by any purported deficiencies in the allegations of the petition.   And any purported defect would require reversal only if it were prejudicial, that is, if the evidence was insufficient to establish jurisdiction.  (Athena P., supra, 103 Cal.App.4th at pp.   627-628.)   In other words, the dispositive issue in this appeal is the sufficiency of the evidence, and we therefore turn to that issue.

“The basic question under section 300 is whether the circumstances at the time of the hearing subject the minor to the defined risk of harm.”  (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.)  “[A] child comes within [section 300, subdivision (b) ], if he or she has been harmed or abused or is at risk of being harmed or abused.   Under subdivision (b), however, the child does not remain a dependent child of the juvenile court under that subdivision if he or she is no longer at risk of suffering physical harm or illness.[ 4 ]  It follows, then, that dependency jurisdiction is not warranted under subdivision (b) if, at the time of the jurisdiction hearing, there no longer is a substantial risk that the child will suffer harm.”  (In re Carlos T. (2009) 174 Cal.App.4th 795, 803 (Carlos T.);   contra, In re J.K. (2009) 174 Cal.App.4th 1426, 1435, fn. 5.)

Mother labors under the misconception that the allegations in the original petition that were removed from the amended petition by interlineations on April 21, 2009 (see fn. 3, ante ), were found not true by the juvenile court.   Not so.   The amendment of the petition was not accompanied by any statements by the trial court indicating that the omitted language was found not to be true.   Nor is there anything in the record showing that the trial court struck or found not to be true any of the evidence in the reports admitted into evidence.   Mother fails to cite any authority supporting her claim that an amendment of the petition to delete allegations also has the effect of rendering inadmissible the evidence supporting the deleted allegations.   Accordingly, we consider all of the evidence set out in the reports admitted into evidence which is favorable to the juvenile court's jurisdictional ruling.

Considering the evidence in the reports in light of the principles set out in Carlos T., supra, 174 Cal.App.4th 795,we conclude that the evidence was sufficient to establish a basis for jurisdiction under section 300(b).  The evidence shows that Dalton was subject to verbal altercations with Mother both before and after he was detained;  even during the pendency of the proceedings below, contentious conversations with Mother caused Dalton great stress and caused him to break out with a rash.   Dalton also was subject to physical abuse by Mother in November 2008, when she hit and bruised his cheek.

Mother's physician confirmed Mother's past abuse of prescription drugs and suspected that she was using other drugs, based on her appearance and behavior in October 2008.   Mother refused DCFS's request that she drug test on two occasions.   Given the foregoing evidence, the juvenile court reasonably could have concluded that Mother was abusing substances in November 2008 and that such abuse was a factor that contributed to her November 2008 altercations with Dalton.   And because Mother failed to drug test during the pendency of the proceedings below or to avail herself of any programs to which she was referred by DCFS, the juvenile court reasonably could have concluded that Mother's substance abuse problem remained unresolved at the time of the jurisdictional hearing.   All of the foregoing evidence supports the implied finding by the juvenile court that at the time of the jurisdictional hearing, Dalton remained at substantial risk of future serious physical harm if placed in Mother's custody.

As Mother's briefs fail to persuade us that the evidence was insufficient to support dependency jurisdiction under section 300(b), we affirm the order.

DISPOSITION

The April 21, 2009 jurisdictional order is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Unspecified statutory references are to the Welfare and Institutions Code..  FN1. Unspecified statutory references are to the Welfare and Institutions Code.

FN2. In 2007, Father suffered a misdemeanor battery conviction arising out of physical abuse of Dalton and Mother obtained a restraining order against Father to protect Dalton.   Thereafter, Father completed parenting and anger management classes.   In February 2008, the restraining order was vacated and the parties began sharing custody of Dalton.   Because dependency jurisdiction was not based on Father's conduct, we do not set out the details or history of Father's conduct..  FN2. In 2007, Father suffered a misdemeanor battery conviction arising out of physical abuse of Dalton and Mother obtained a restraining order against Father to protect Dalton.   Thereafter, Father completed parenting and anger management classes.   In February 2008, the restraining order was vacated and the parties began sharing custody of Dalton.   Because dependency jurisdiction was not based on Father's conduct, we do not set out the details or history of Father's conduct.

FN3. The pertinent parts of the original petition, before the amendments of April 21, 2009, stated as follows:  “b-1 [¶] On 11/18/08, the child, [Dalton]'s mother, [Anita R.], physically abused the child by striking the child's face with the mother's fists, inflicting bruises to the child's face.   On prior occasions, the mother struck the child's chest and arms.   The physical abuse of the child by the mother was excessive and caused the child unreasonable pain and suffering.   The physical abuse of the child by the mother endangers the child's physical and emotional health and safety and places the child at risk of physical and emotional harm, damage, danger and physical abuse. [¶] ․ [¶] b-3 [¶] The child, [Dalton's] mother, [Anita R.], has a history of substance abuse, including cocaine and is a current abuser of prescription medication, which renders the mother incapable of providing the child with regular care and supervision.   In March 2008, the mother was under the influence of prescription medication to the degree that the mother was unable to provide care and supervision for the child.   The mother's history of illicit drug abuse and current abuse of prescription medication endangers the child's physical and emotional health and safety, creates a detrimental home environment and places the child at risk of physical and emotional harm and damage.”After amendment, the sustained petition stated:  “b-1 [¶] On 11/18/08, the child, [Dalton] and mother, [Anita R.], had a physical altercation.   The physical altercation places the child at risk of harm. [¶] ․ [¶] b-3 [¶] The child, [Dalton's] mother, [Anita R.], has a history of substance abuse.   The mother's history of substance abuse places the child at risk.”.  FN3. The pertinent parts of the original petition, before the amendments of April 21, 2009, stated as follows:  “b-1 [¶] On 11/18/08, the child, [Dalton]'s mother, [Anita R.], physically abused the child by striking the child's face with the mother's fists, inflicting bruises to the child's face.   On prior occasions, the mother struck the child's chest and arms.   The physical abuse of the child by the mother was excessive and caused the child unreasonable pain and suffering.   The physical abuse of the child by the mother endangers the child's physical and emotional health and safety and places the child at risk of physical and emotional harm, damage, danger and physical abuse. [¶] ․ [¶] b-3 [¶] The child, [Dalton's] mother, [Anita R.], has a history of substance abuse, including cocaine and is a current abuser of prescription medication, which renders the mother incapable of providing the child with regular care and supervision.   In March 2008, the mother was under the influence of prescription medication to the degree that the mother was unable to provide care and supervision for the child.   The mother's history of illicit drug abuse and current abuse of prescription medication endangers the child's physical and emotional health and safety, creates a detrimental home environment and places the child at risk of physical and emotional harm and damage.”After amendment, the sustained petition stated:  “b-1 [¶] On 11/18/08, the child, [Dalton] and mother, [Anita R.], had a physical altercation.   The physical altercation places the child at risk of harm. [¶] ․ [¶] b-3 [¶] The child, [Dalton's] mother, [Anita R.], has a history of substance abuse.   The mother's history of substance abuse places the child at risk.”

FN4. Section 300(b) provides in pertinent part:  “The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”.  FN4. Section 300(b) provides in pertinent part:  “The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.”

ROTHSCHILD, J. CHANEY, J.

Copied to clipboard