Opinion
B309268
09-20-2021
In re MISHA R. et al, Persons Coming Under the Juvenile Court Law. v. RONALD R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Appellant.
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County No. 20CCJP02659 A-B, Jean M. Nelson, Judge. Dismissed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Appellant.
FEUER, J.
Ronald R. (Father) appeals from the jurisdiction findings and disposition order declaring five-year-old Misha R. and four-year-old Levi R. dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1), after the court sustained allegations Father and Olivia R. (Mother) engaged in a violent altercation in the presence of the children and Mother had a history of alcohol abuse. Father contends insufficient evidence supports the court's finding the children were at risk of harm from his conduct.
Further statutory references are to the Welfare and Institutions Code.
The Los Angeles County Department of Children and Family Services (Department) cross-appeals from the court's order striking the allegation Father failed to protect the children from Mother's alcohol abuse.
Because Mother does not appeal from the jurisdiction findings and Father does not challenge the jurisdiction findings against Mother, Father's appeal and the Department's cross-appeal are nonjusticiable. We dismiss the appeal and cross-appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral, Investigation, and Petition
On March 30, 2020 the Department received a referral involving a domestic violence incident that occurred on March 29. The caller reported Father and Mother, who were married, were arguing in their living room after Father discovered Mother had been texting with another man. Father followed Mother into the bedroom to question her. Mother grabbed an alarm clock from the dresser and struck Father on his face with it. Father raised his hand to separate himself from Mother, and Mother bit his thumb. Misha and Levi were present in the bedroom during the altercation but were not hurt. Father sustained injuries to his face, including bruising under his left eye and a small cut on his forehead; the caller did not report injuries to Mother. Mother was arrested.
On April 7, 2020 the social worker interviewed Father and Mother. Father stated Mother struck him with an alarm clock during an argument about her extramarital affair, and he “‘caught mother in the face'” when he lifted his left arm to block her. Father told the social worker about a prior incident in February 2020, when he found Mother drunk and passed out on the kitchen floor with a broken bottle nearby, while Levi slept on top of her and Misha roamed around the residence in a dirty diaper. Father was aware Mother had completed an alcohol and drug abuse program in connection with a voluntary family maintenance case that was opened with respect to Misha and Levi in December 2017 after Mother was arrested and charged with driving under the influence with Levi in the car. Father did not report the February 2020 incident to the Department.
The case was closed in September 2018 because the children were doing well in Mother's care.
Mother provided a very different version of the March 29 altercation to the social worker. According to Mother, Father blocked Mother's egress from the bedroom, grabbed her, and attempted to grab her phone when she threatened to call the police. Mother and Father then fell onto the bed, Father began choking Mother, and Mother bit Father's finger when he tried to squeeze her mouth to prevent her from screaming. Misha and Levi were on the bed at the time, and Levi yelled for Father to stop. Mother denied hitting Father with an alarm clock. She wanted to divorce Father.
The social worker reported Misha has autism and was non-verbal; Levi was also diagnosed with autism. Case workers and therapists involved in Misha's care reported they did not have concerns about the children's safety and wellbeing in the home. Mother and Father both tested negative for all substances.
On May 14, 2020 the Department filed a petition on behalf of Misha and Levi under section 300, subdivisions (a) and (b)(1), alleging Mother and Father had a history of engaging in violent physical altercations in the presence of the children, and on March 29 Mother bit Father's hand and struck him with an alarm clock, and Father pushed and choked Mother and squeezed her jaw with his fingers. The parents' conduct endangered the children, and Mother and Father failed to protect the children. The petition also alleged under section 300, subdivision (b)(1), that Mother had a history of substance abuse and was a current abuser of alcohol, which rendered her incapable of providing regular care and supervision of the children, and Father knew of Mother's alcohol abuse and failed to protect the children by allowing Mother to reside in the home and have unlimited access to the children. At the May 19, 2020 detention hearing, after Father agreed to move out of the family residence, the children were ordered released to the parents.
B. The Jurisdiction and Disposition Report
Father reported he and Mother had prior verbal conflicts, but the March 29 incident was the only physical altercation between Mother and Father. Father denied pushing, choking, or putting his fingers in Mother's mouth. Father acknowledged he should have called the police after the February 2020 incident, but he did ask Mother's family for help in an effort to keep his family together.
Mother likewise told the dependency investigator the March 29 altercation was an “‘isolated incident.'” She denied striking Father with an alarm clock and said she bit his hand because he was trying to break her jaw. She denied she had passed out in front of the children in 2020. Mother reported she “‘went to AA on a regular [basis] until the Covid-19, '” and the last time she drank alcohol was in March 2020.
Tifanni Dunschee, a neighbor, told the dependency investigator that on March 29, 2020, she heard Mother screaming “‘like she was being hurt.'” She later saw Mother's “‘whole mouth was bleeding, and her face was bruised.'” Mother told Dunschee that Father “‘was choking her to death and trying to kill her.'” Dunschee stated she heard Mother and Father yelling and heard banging on one earlier occasion in February 2020. She said the children were “‘always clean, happy and play[ful], but the parents don't belong together. They are good parents. They love their kids.'”
C. The Jurisdiction and Disposition Hearing
At the November 18, 2020 jurisdiction and disposition hearing, the juvenile court sustained the allegations as to Mother. The court sustained the allegations relating to the March 29 incident as to Father, but it struck the allegations as to Father's failure to protect the children from Mother's alcohol abuse in light of the absence of evidence of Mother's alcohol abuse between 2017 and February 2020.
Based on Father's indication he was a member of the Cherokee Nation, the Department sent notices to several Indian Tribes under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.). The Delaware Tribe of Oklahoma responded that Misha and Levi were eligible for enrollment. The tribe did not appear at the jurisdiction and disposition hearing.
As to the allegations concerning Mother and Father's domestic violence, the juvenile court found, “This does appear to be a single domestic violence incident in the parents' relationship, but it was a fairly significant one that resulted in bleeding, both parents having injuries that bled, and that it became quite physical and it was in close proximity to the children, who are unable to defend themselves as they are quite young and they are autistic.” The court found there was a risk of ongoing violence because “the parents will need to continue to co-parent” and “the jealousy issues are likely not resolved. But, also, particularly as to Mother, she is not acknowledging her role in that incident. She couldn't explain how Father ended up with injuries from the incident. It looks like mutual combat, or mutual violence....”
The juvenile court declared Misha and Levi dependents of the court under section 300, subdivisions (a) and (b), and ordered the children released to the home of the parents on the condition Mother and Father reside separately and use a third party to exchange the children, and that the Department make unannounced home visits in each parent's home. The court found “there is not clear and convincing evidence to remove the children from either parent.” The court ordered Mother to complete a drug and alcohol program, alcohol and drug testing, a domestic violence program for perpetrators, and individual counseling. Father agreed to enroll in individual counseling, but he objected to attending a domestic violence program for perpetrators. The court ordered Father to attend the program.
Father timely appealed. The Department timely cross-appealed.
DISCUSSION
On appeal, Father contends the juvenile court's jurisdiction findings as to him are not supported by substantial evidence. The Department contends Father's appeal is nonjusticiable because Father does not challenge the court's sustained jurisdiction findings as to Mother. Father acknowledges his appeal “will not change [the] fact that jurisdiction may be taken based upon [M]other's actions, ” but he argues we should exercise our discretion to consider his appeal because he is prejudiced by the jurisdiction finding insofar as he will be considered an “‘offending parent'” in later proceedings. However, Father has not identified any specific prejudice or adverse consequences he may suffer if we dismiss his appeal. His appeal is therefore nonjusticiable. The Department's cross-appeal is likewise nonjusticiable.
Father also contends that “[b]ecause the jurisdictional finding against father must be reversed, those portions of the dispositional order pertaining to him must be reversed as well.” However, Father does not challenge any specific disposition order, presenting no argument as to the order he enroll in a domestic violence program.
“‘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 statutory grounds for jurisdiction are supported by the evidence.'” (In re I.J. (2013) 56 Cal.4th 766, 773; accord, In re M.R. (2017) 7 Cal.App.5th 886, 896 [“‘[a]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate'”], quoting In re Ashley B. (2011) 202 Cal.App.4th 968, 979; In re Briana V. (2015) 236 Cal.App.4th 297, 309 [“[W]e need not address jurisdictional findings involving one parent where there are unchallenged findings involving the other parent.”].)
An appeal is not justiciable where “no effective relief could be granted..., as jurisdiction would be established regardless of the appellate court's conclusions with respect to any such [challenged] jurisdictional grounds.” (In re Madison S. (2017) 15 Cal.App.5th 308, 329; accord, In re I.A. (2011) 201 Cal.App.4th 1484, 1490 [“An important requirement for justiciability is the availability of ‘effective' relief-that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status.”].) As acknowledged by Father, the juvenile court “may base jurisdiction on the actions of one or both parents.” (In re H.R. (2016) 245 Cal.App.4th 1277, 1285; accord, In re Briana V., supra, 236 Cal.App.4th at p. 308 [“‘[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent.'”].)
Nevertheless, the appellate courts “may exercise their ‘discretion and reach the merits of a challenge to any jurisdictional finding when the 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 D.P. (2015) 237 Cal.App.4th 911, 917, quoting In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; accord, In re Madison S., supra, 15 Cal.App.5th at p. 329; In re Christopher M. (2014) 228 Cal.App.4th 1310, 1316.)
Father contends we should exercise our discretion to consider his appeal because the outcome of the appeal will affect whether he is an “‘offending parent'” under the Welfare and Institutions Code, which “‘may have far reaching implications'” with respect to his paternal rights and future dependency proceedings in this case. (Quoting In re Drake M., supra, 211 Cal.App.4th at p. 763.) Father is correct we and other appellate courts have exercised discretion to consider otherwise nonjusticiable appeals where the appellant's status as an offending parent could impact whether a child should be placed with the parent. In In re Christopher M., supra, 228 Cal.App.4th at page 1313, for example, the father was incarcerated at the time the Department filed a petition alleging the mother's physical abuse of Christopher's half-sibling and the father's failure to provide for the necessities of life; Christopher and his half-siblings were detained from the mother. The Court of Appeal exercised its discretion to consider the father's appeal of the jurisdiction findings against him because the findings could impact whether Christopher was placed with the father (who by then had been released from prison and had been visiting Christopher). (Id. at p. 1317.) The court explained “a jurisdictional finding based on conduct of a noncustodial parent would unquestionably be a consideration in assessing detriment under section 361.2, subdivision (a)” for purposes of assessing whether Christopher should be placed with the father as a noncustodial parent. (Christopher M., at p. 1317; see In re Quentin H. (2014) 230 Cal.App.4th 608, 610, 613 [exercising discretion to consider father's challenge to jurisdiction finding based on presumption under section 355.1, subdivision (d), that father posed a substantial risk of harm to children based on father's 25-year-old sexual abuse conviction, where children were removed from father's custody and placed with mother, and therefore father's being an offending parent based on jurisdiction finding could have far-reaching consequences].)
The court in In re Christopher M., supra, 228 Cal.App.4th at page 1317 noted that the term “‘nonoffending'” does not appear in the text of section 361.2, subdivision (a), but some courts nevertheless have recognized “‘an implicit nonoffending requirement in section 361.2'” for placement of a child with a noncustodial parent.
In In re Christopher and In re Quentin, the parent's status as an offending parent could impact whether the children would be placed with the parent. Here, by contrast, Misha and Levi were released to the home of Mother and Father, with the juvenile court finding there was “not clear and convincing evidence to remove the children from either parent.” Further, according to Father, as of May 2020 Mother and Father had permanently separated, Father had moved out of the family home, and Mother and Father were sharing custody without incident. Despite Father's summary assertion his offending status may have far reaching implications for his parental rights, Father has not articulated any specific consequences or prejudice he would suffer as an offending parent. If we were to accept Father's position that appellate review is appropriate based simply on the fact the juvenile court's jurisdiction finding caused him to be an offending parent, without any showing of potential negative consequences or prejudice, this would negate the general rule of justiciability that the court “need not address jurisdictional findings involving one parent where there are unchallenged findings involving the other parent.” (In re Briana V., supra, 236 Cal.App.4th at p. 309.)
Moreover, the fact that Father and Mother engaged in a physical altercation in the presence of their young, autistic children was admitted by both parents, and their statements to the police, social worker, and dependency investigator can be considered in later proceedings regardless of the jurisdiction finding as to Father; further, any future custody order would need to be based on conditions existing at that time. (See In re Madison S., supra, 15 Cal.App.5th at p. 330 [“[T]he substance of the spanking allegation would almost certainly be available in any future dependency or family court proceeding, regardless of any determination on our part as to whether it formed an independent basis for juvenile court jurisdiction.”]; In re I.A., supra, 201 Cal.App.4th at pp. 1494-1495 [“Father... fails to suggest any way in which this [jurisdiction] finding actually could affect a future dependency or family law proceeding, and we fail to find one on our own. In any future dependency proceeding, a finding of jurisdiction must be based on current conditions.”].)
The Department's cross-appeal is likewise nonjusticiable: the unchallenged jurisdiction findings as to Mother based on her alcohol abuse support dependency jurisdiction over Misha and Levi and the disposition order requiring Mother to complete a drug and alcohol program and submit to drug and alcohol testing. Thus, an appellate order requiring the juvenile court to sustain the allegation of Father's failure to protect the children from Mother's alcohol abuse would have no practical impact.
DISPOSITION
The appeal and cross-appeal are dismissed.
We concur: PERLUSS, P. J.SEGAL, J.