IN RE: ANTHONY G.

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Court of Appeal, Second District, California.

IN RE: ANTHONY G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent, v. E.U., Appellant.

B223242

Decided: March 30, 2011

Mitchell Keiter, under appointment by the Court of Appeal, for Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Respondent.

CHANEY, J.

I concur:

ROTHSCHILD, J.

MALLANO, P. J., Dissenting.

E.U. challenges the sufficiency of the evidence as to the juvenile court's finding of jurisdiction under Welfare and Institutions Code section 300, subdivision (g) on the basis that there was no evidence that E.U. “left” Anthony, or alternatively, that there was no evidence that Anthony was left without provision for support.4  I disagree.   The evidence shows that Mother was struggling to provide support for Anthony and that E.U. did not provide financial support to Anthony, was not interested in him, and had no relationship with him.   And because Mother submitted to the jurisdiction of the juvenile court under section 300, subdivision (b), I conclude she was not providing good care for Anthony.

As pertinent here, a jurisdictional finding under section 300, subdivision (g) requires DCFS to show that [t]he minor has been left without any provision for support․  (In re Matthew S. (1996) 41 Cal.App.4th 1311, 13191320.)

In re J.O. (2009) 178 Cal.App.4th 139 is illustrative.   There, the court concluded that when a mother does not provide for the child's care, a father's failure to provide support can be used as justification for detention under section 300, subdivision (g).  (In re J.O., at pp.   153–155.)   In In re J.O., the juvenile court sustained jurisdiction over the minors against the father, the mother and the mother's husband under section 300, subdivision (a) (serious physical harm, based on the mother's use of safety pins and knife to scrape ink marks off minor's skin and use of excessive physical discipline);  subdivision (b) (failure to protect against the father, based on actions committed by the mother and the mother's husband);  subdivision (d) (sexual abuse, based on sexual comments and fondling by the mother's husband);  and subdivision (g) (no provision for support, based on the father's lack of support).  (In re J.O., supra, 178 Cal.App.4th at p. 144.)   The mother and the mother's husband stipulated to the jurisdictional findings.   (Id. at p. 144, fn. 5.) The father, but not the mother or the mother's husband, appealed from the juvenile court's jurisdiction and disposition orders.

The In re J.O. court concluded that the factual finding against the father as to section 300, subdivision (b) was not supported by the evidence because there was no causal nexus between the court's findings of serious injury and the findings relating to the father.  (In re J.O., supra, 178 Cal.App.4th at p. 152.)   The court concluded, however, that the evidence supported the juvenile court's finding of jurisdiction under section 300, subdivision (g).  Analogizing to cases involving incarcerated parents who may be unable to provide or arrange for care of the child and assuming that section 300, subdivision (g) applies only where the parent is unable to provide or arrange care for the children at the time of the jurisdictional hearing, the court held that substantial evidence supported the conclusion that the father was incapable of providing such care because he had no relationship with the children, he displayed no interest in them, he had given no financial support for the previous eight years, he had not lived with them for more than a dozen years, and he had ceased his rare telephone calls to them at least three years previously.  (In re J.O., supra, 178 Cal.App.4th at pp.   153–154.)

Similarly here, E.U. had no relationship with Anthony, displayed no interest in him, and did not provide financial support.   Notwithstanding the evidence that E.U. never provided support, E.U. urges that Anthony was not “left without any provision for support” because the record shows that Anthony was well groomed, dressed appropriately, and lived in stable housing with Mother and Grandmother, citing In re Matthew S., supra, 41 Cal.App.4th 1311, and In re Janet T. (2001) 93 Cal.App.4th 377.   In In re Matthew S., the court concluded that there was insufficient evidence supporting the juvenile court's finding of jurisdiction under section 300, subdivision (g) against the absent father because there was no evidence of “malnutrition, deprivation of shelter, clothes or medical care” for the minor.  (In re Matthew S., supra, 41 Cal.App.4th at p. 1320.)   In In re Janet T., the court reversed the juvenile court's order sustaining the allegation of the petition asserted under section 300, subdivision (g) against the father, even though it was factually supported, because it had reversed the other sustained allegations against the mother.  (In re Janet T., supra, 93 Cal.App.4th at p. 392.)   The court reasoned “[i]t would be anomalous to permit the fact of an absent father to be the sole justification to assert jurisdiction in this case and to detain the children from their custodial parent.”  (Ibid.)

In re Matthew S. and In re Janet T., however, differ from the present case in one significant respect:  in both of those cases the courts concluded that the mother had provided good care for the children.   As In re J.O. points out, “In In re Janet T ․ the court held that a finding under section 300, subdivision (g) that the father, whose whereabouts were unknown, had failed to provide support could not be used as justification to declare the children dependents and detain them from their custodial parent, the mother, who had provided good care.   To the same effect, see In re Matthew S. ․” (In re J.O., supra, 178 Cal.App.4th at p. 153, fn. 15.)

By contrast, in In re J.O., supra, 178 Cal.App.4th at page144, footnote 5, the mother stipulated to the jurisdictional findings.   Similarly, Mother submitted to the jurisdiction of the juvenile court under the section 300, subdivision (b) allegation that she failed to protect the minors.   And Mother was struggling to provide care for Anthony.   Thus, Mother did not provide good care to Anthony, and In re Matthew S., supra, 41 Cal.App.4th 1311, and In re Janet T., supra, 93 Cal.App.4th 377, are distinguishable.

I also reject E.U.'s contention that because he “had no reason to believe he was obligated to provide for [Anthony]” and there was no affirmative identification of him as the father until December 31, 2009, he cannot be said to have “ ‘left’ ” Anthony without any provision.   During his interview, E.U. admitted that he had sex with Mother and that he wanted Mother to stop calling him and telling him that he was Anthony's father.   His denial of paternity appears to be the product of immature and wishful thinking, and I reject his argument that he did not “leave” Anthony simply because he did not choose to believe he was Anthony's father.

I therefore conclude that the juvenile court's findings that Anthony was a child as described by section 300, subdivision (g) was supported by substantial evidence.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re ANTHONY G., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent,

v.

E. U.,

Appellant.

B223242

(Los Angeles County

Super. Ct. No. CK80542)

ORDER CERTIFYING OPINION FOR PUBLICATION

The opinion filed herein on March 30, 2011 was not certified for publication in the Official Reports.   For good cause it now appears that the opinion should be

MALLANO, P.J. CHANEY, J.

FOOTNOTES

FN4. Statutory references are to the Welfare and Institutions Code..  FN4. Statutory references are to the Welfare and Institutions Code.