IN RE: JEL. C. et al.

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Court of Appeal, Second District, California.

IN RE: JEL. C. et al., Persons Coming Under the Juvenile Court Law. L.A. COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, v. DANIEL C., Defendant and Appellant, T. R., Defendant and Respondent,

B222897

Decided: February 28, 2011

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Appellant. Andre F.F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant, Daniel C. Karen B. Stalter, under appointment by the Court of Appeal, for Minors (Appellants). No appearance for Defendant and Respondent T. R.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Daniel C. (Father), the Los Angeles Department of Children and Family Services (DCFS) and Jel. C., Jam. C. and Jen. C. (minors) appeal from the juvenile court's jurisdictional and dispositional orders.

Father's Notice of Appeal in this matter, filed April 19, 2010, states that Father is appealing from “[a]ll findings and orders of the court made on February 18, 2010;  February 26, 2010;  and March 1, 2010, including the court sustaining a petition, taking jurisdiction, and making dispositional findings and orders.”   We appointed counsel to represent Father on appeal.   After examination of the record, counsel advised this court in writing that he was unable to identify any arguable issues.   On August 10, 2010, we notified Father that he had 30 days within which to personally submit any contentions he wished us to consider, and that failure to do so would result in dismissal of his appeal as abandoned.   To date, we have received no response from Father.   Accordingly, Father's appeal is dismissed as abandoned.  (In re Sade C. (1996) 13 Cal.4th 952, 994.)

DCFS and minors contend on appeal that the juvenile court erred in declining to sustain two allegations (b-4 & j-1) in the amended dependency petition under Welfare and Institutions Code section 300.1  As set forth more fully below, we need not decide this issue because the court sustained two other allegations in the petition as to Father (b-1 & b-2), and established jurisdiction over minors.   Neither DCFS nor minors have shown how the sustaining of these additional jurisdictional allegations would impact the dispositional orders or any other issue in the case.

DCFS also contends that the court abused its discretion in ordering reunification services for Father because of his failure to reunify with minors' half sibling, his conviction of a violent felony and his incarceration. (§ 361.5, subds.(b)(10), (b)(12) & (e)(1).)   Finding no error, we affirm.

BACKGROUND

On November 25, 2009, DCFS filed a petition under section 300, subdivisions (a) and (b), alleging a history of domestic violence, including “violent physical altercations,” between Father and minors' mother, T.R. (Mother) (allegations a-1 & b-1).   The petition also alleged that both Father and Mother had mental and emotional problems, schizophrenia for Father, and depression and a history of suicide attempts for Mother (allegations b-2 & b-3).   DCFS further alleged that Father had failed to take his psychotropic medication and had been hospitalized in October 2009 for “evaluation and treatment of his psychiatric condition.”   At the time of the petition, Father and Mother's son Jel. C. was nine years old, and their daughters Jam. C. and Jen. C. were seven and five, respectively.

As set forth in the detention report, on or about November 20, 2009, Mother informed DCFS about the history of domestic violence between her and Father, and that she suffered from depression and anxiety during the time she lived with Father.   Between 2002 and 2009, Mother attempted suicide two or three times.   After an attempt in September 2009, Mother stated that “she had suffered a mental breakdown from so much torture and abuse from [Father].”   Father was both verbally and physically abusive.   He would repeatedly accuse her “of having sexual relations with other men,” and also “would hit her on the lower extremities with a closed fist.”   On or about October 18, 2009, Mother was hospitalized after Father hit her with a stick.   She tried to block a blow with her arm.   The stick broke a bone in her arm and she required surgery.   Mother did not return to Father's home after that incident.

Father had custody of the children and Mother was not supposed to be living in his home, under an October 2008 family law order.   Father violated the order by allowing Mother to move back into the home.   The family law court had offered Father voluntary services, but he discontinued them before successful completion.

On October 20, 2009, Father did not pick up minors from school because he was hospitalized on a 51/50 psychological hold.   Thereafter, Father informed DCFS that he suffers from schizophrenia, but was not taking medication.   Father also told DCFS that he was a victim of domestic violence by Mother.   He accused her of bringing men into his home and having “sex with them while lying on his back while he was unconscious.”   He further accused Mother and the men of drugging him and sexually assaulting him in his sleep.   Father also stated that Mother engaged in some of the sex acts in minors' presence.   DCFS referred Father to a domestic violence shelter for counseling, but the shelter could not work with him because he was “ ‘too combative and contentious.’ ”

Each of the minors told DCFS a story about Mother bringing men into Father's home to have sex with her.   Jel. C. said that he had witnessed such an incident.   All of the minors used language and phrasing that was strikingly similar to that Father used in relating the story to DCFS. The social worker indicated that Father had told minors what to say.   DCFS reported:  “There is no evidence of this incident taking place and the mother denied this incident as well.”   None of the minors reported abuse or neglect by either parent.

In or about October and November 2009, Father went to minors' elementary school and reported that teachers and play yard monitors were having sex with Mother.   On more than one occasion, the principal of the school asked Father to leave the campus because of his “irate and irrational” behavior.   Father did not send minors to school between November 7 and 20, 2009.   He told DCFS he was afraid to pick them up from school because Mother might batter him again.

The school principal informed DCFS that she was made aware that Father was a registered sex offender.   Father neglected to inform the school of his status when he enrolled minors.   DCFS learned that Father had a prior conviction for lewd and lascivious acts with a child under 14.

DCFS also reported that Father had a failed reunification with his 16-year-old daughter, Danielle C., who had lived with Father's mother since she was three.   Danielle is minors' half sibling.

Before DCFS filed the dependency petition, it had placed minors in foster case.   At the detention hearing, Father requested that the juvenile court release minors to him, noting that he had had custody before minors' detention.   Mother requested a restraining order against Father.   The court ordered the children suitably placed with DCFS and issued a temporary restraining order for Mother against Father.   The court also ordered reunification services and monitored visits for both parents.

Father was later incarcerated on a charge of spousal abuse against Mother, which was filed on January 4, 2010.   The criminal court issued a protective order.

On January 25, 2010, DCFS filed a first amended petition under section 300.   DCFS included new allegations under subdivisions (b) and (j), stating:  “On or about 12/23/1997 [sic], [minors'] father, Daniel C[.], was convicted of 288(a) lewd or lascivious acts with [a] child under 14 years of age.   As a result of the conviction the children's father is ordered to register as a sexual offender.   In addition, the mother [T.R.] knew about father's conviction and failed to take action to protect the children in that the mother allowed the father to reside with the children and have unlimited access to the children.   Such criminal behavior by the father and failure to protect by the mother endangers the children's physical and emotional health and safety and places [them] at risk of physical and emotional harm.”  (Allegations b-4 & j-1.)

DCFS attached to the amended petition a certified criminal court case docket showing that on October 30, 1996, Father pleaded no contest and was convicted of one count of lewd and lascivious act with a child under 14 in violation of Penal Code section 288, subdivision (a).   DCFS also attached documents from a prior dependency case involving minors' half sibling Danielle.   The documents indicate that the victims in Father's 1996 criminal case were Danielle's half siblings (no relation to minors in this case).   The documents also indicate that in December 1996, the juvenile court sustained the dependency petition based on an allegation regarding Father's October 30, 1996 conviction.

Before adjudication in this case, minors and DCFS filed briefs arguing that, under section 355.1, subdivision (d), minors were at substantial risk of abuse or neglect based on Father's 1996 conviction for sexual abuse.   This statutory provision sets forth a rebuttable presumption of risk based on this type of criminal conduct.   Father filed a brief, arguing that his conviction did not place minors at substantial risk of suffering serious physical harm or illness.

At the March 1, 2010, adjudication/disposition hearing, the juvenile court sustained the petition based on allegations b-1, b-2 and b-3, regarding the parents' history of domestic violence and their mental and emotional problems.   The court concluded that minors are persons described by section 300, subdivision (b).  The court dismissed allegation a-1, which like b-1 also alleged the parents' history of domestic violence.

The juvenile court also dismissed without prejudice allegations b-4 and j-1.   The court concluded that Father had rebutted the presumption set forth in section 355.1, and the court was “unable to make findings that a conviction that happened 13 years ago would place these children at risk.”

The court ordered reunification services for Father under section 361.5, despite Father's 1996 conviction of a violent felony, because the court found reunification was in the best interest of minors.   The court ordered Father to complete a 52-week domestic violence program, and to participate in parenting education as well as individual counseling to address mental health, domestic violence, anger management and sexual abuse issues.   The court also ordered reunification services for Mother and monitored visitation for both parents, with DCFS having discretion to liberalize the visits.

As set forth above, minors, Father and DCFS appealed from the juvenile court's jurisdictional/dispositional orders.   DCFS joined in minors' arguments regarding the dismissal of allegations b-4 and j-1, and also asserted its own arguments challenging the order of reunification services for Father.   Although Father did not identify any arguable issues in support of his own appeal, he did file a respondent's brief in response to the arguments raised by minors and DCFS. Mother did not file an appeal or a respondent's brief.

DISCUSSION

I. Dismissal of Allegations b-4 and j-1

DCFS and minors contend that the juvenile court erred in declining to sustain-and instead dismissing without prejudice-allegations b-4 and j-1 in the first amended dependency petition regarding Father's October 30, 1996 conviction for lewd and lascivious acts with a child under 14.  (Pen.Code, § 288, subd. (a).)  As discussed above, the court concluded that Father had rebutted the presumption that minors were at risk of harm based on this criminal conduct, which occurred with relatives of minors' half sibling more than 13 years before the jurisdiction hearing. (§ 355.1.)

In his respondent's brief, Father argues that this court need not decide whether the juvenile court erred in declining to sustain these allegations because the court established jurisdiction over minors based on two other jurisdictional findings concerning Father's mental and emotional problems and history of domestic violence with Mother.2  Neither DCFS nor minors filed a reply brief on appeal, and thus did not respond to Father's argument.   We agree with Father on this issue.

“Any child who comes within any of the [provisions of Section 300] is within the jurisdiction of the juvenile court ․“ (§ 300;  see also In re Shelley J. (1998) 68 Cal.App.4th 322, 330 [“Section 300 contemplates that jurisdiction may be based on any single subdivision”].)   The juvenile court in this case found that minors came within subdivision (b) of section 300 based on conduct of both parents.   Additional jurisdictional findings would not have conferred any greater or different jurisdiction on the court.

Neither DCFS nor minors argue that the dispositional orders would have been different if the juvenile court had sustained allegation b-4 or j-1.   Nor do they argue that any issue in the case would have been affected by the sustaining of these allegations.   DCFS and minors have not presented any valid reason for us to reach this issue.   The juvenile court's dismissal of these allegations does not prevent DCFS from asserting these or similar allegations (regarding Father's status as a registered sex offender and the risk of harm to minors) in the future, in this or another dependency proceeding.

As addressed below, DCFS argues on appeal that the juvenile court should not have ordered reunification services for Father based on his 1996 conviction and other factors.   The issue of reunification services is not dependent on the court sustaining jurisdictional allegation b-4 or j-1.   Regardless of whether the court sustained or dismissed these allegations, the court was required to make findings under section 361.5 regarding Father's prior conviction and its impact on reunification services.   We now turn to our review of the court's order of reunification services for Father.

II. Reunification Services

DCFS contends that the juvenile court abused its discretion in ordering reunification services for Father because of his failure to reunify with minors' half sibling, his conviction of a violent felony and his incarceration. (§ 361.5, subds.(b)(10), (b)(12) & (e)(1).)   We find no error.

Section 361.5, subdivision (b), provides, in pertinent part:  “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶ ․ ¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.  [¶ ․ ¶] (12) That the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code.” Where these subsections apply, the court “shall not order reunification” for the parent “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c).)

Under subdivision (e)(1) of section 361.5, “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child.”

“Section 361.5, subdivision (a) explicitly directs the juvenile court to order child welfare services for the minor and the minor's parents whenever a minor is removed from a parent's custody.   This requirement implements the law's strong preference for maintaining the family relationship if at all possible.   [Citation.]  However, there are limited exceptions to this rule listed in subdivision (b).  Although these exceptions are narrow in scope and subject to proof by the enhanced ‘clear and convincing standard, they demonstrate a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child's interests.  [¶] The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly.   On appeal, this determination cannot be reversed absent a clear abuse of discretion.   [Citation.]”  (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)

Reviewing the order for abuse of discretion, we “should interfere only ‘ “if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.”  [Citations.]’  [Citation.]”  (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

In deciding whether to order reunification services for Father, the juvenile court addressed Father's conviction for lewd and lascivious acts with a child under 14 (Pen.Code, § 288, subd. (a)), a crime which constitutes a violent felony under Penal Code section 667.5, subdivision (c).  It is clear that section 361.5, subdivision (b)(12), set forth above, applies here.   Despite the conviction, the court determined that reunification with Father was in the best interest of minors, noting that its determination needed to be based on clear and convincing evidence.   The record does not demonstrate that the court's decision was arbitrary, capricious or beyond the bounds of reason.

Father was convicted of this violent felony more than 13 years before the hearing.   There was no allegation that Father had committed any acts of sexual abuse against minors.   There is no evidence that minors were aware of Father's crime, which occurred before any of them were born.

Minors were living with Father prior to detention.   A family law court had placed the children in Father's custody.   The juvenile court believed that Father “could be a good father” with successful treatment for his mental health issues.   The court found it in minors' best interest to “have a functioning father.”   We see no reason to disturb the court's exercise of discretion on this issue.

DCFS's reliance on Section 361.5, subdivision (b)(10), to support its challenge to reunification services is misplaced.   The juvenile court did not make any findings regarding the prior dependency proceeding involving minors' half sibling and Father's failure to reunify with that child.   The court criticized the documentation DCFS submitted because it was incomplete and it was not clear how DCFS had obtained the documents.   The court stated that it could not rely on the documents in making findings about the prior dependency case.   But even if the court had made findings demonstrating that (b)(10) applied, the court determined that reunification was in the best interest of minors.   We already have reviewed that determination for abuse of discretion.

Because father was incarcerated at the time of the hearing, section 361.5, subdivision (e), applied.   Thus, the juvenile court could have denied reunification services for Father if it determined, by clear and convincing evidence, that those services would have been detrimental to minors.   The court did not make that finding.   Instead, it determined that reunification was in minors' best interest.

The court did not abuse its discretion in ordering reunification services for Father under section 361.5.

DISPOSITION

Father Daniel C.'s appeal is dismissed.   The jurisdictional and dispositional orders are affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. The court also made these same jurisdictional findings with respect to Mother..  FN2. The court also made these same jurisdictional findings with respect to Mother.

MALLANO, P. J. JOHNSON, J.