Filed 5/26/22 In re A.E. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from orders of the Superior Court of Los Angeles County. Brett Bianco, Judge. Dismissed in part and affirmed in part.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.

___________________________

INTRODUCTION

Ivan E. (Father) appeals from the juvenile court’s jurisdictional findings against him and dispositional orders made on August 16, 2021. Father concedes that the court’s jurisdiction over his children will be unaffected by the outcome of this appeal but requests that we exercise our discretion to review the jurisdictional orders as to him to avoid future prejudice. Because he has failed to identify any specific prejudice, we decline to do so. We also reject Father’s challenge to the court’s dispositional orders, which is premised on authority that has been superseded by statute.

FACTUAL AND PROCEDURAL BACKGROUND[1]

Father shares the three children that are the subject of these proceedings, A.E., M.E., and W.E. (Children), with Cindy B. (Mother). Children live in California with Mother, their stepfather, and half-brother G.S., who is Mother and stepfather’s son.[2] Stepfather is away from the home for weeks at a time for work, leaving Mother to care for all four children on her own. Father was deported to Mexico several years ago and has neither seen nor been involved in the upbringing of any of the Children since.

The Los Angeles County Department of Children and Family Services (DCFS) commenced the instant proceedings[3] in March of 2021 based on reports of possible physical, emotional, and verbal abuse directed by Mother at M.E.

The initial petition, filed in April of 2021, contained allegations under subdivisions (a), (b), (c), and (j) of Welfare and Institutions Code section 300,[4] all based on Mother’s alleged physical abuse of M.E. or her failure or inability to care for, supervise, or obtain services for, M.E. An amended petition filed June of 2021 added an allegation, under subdivision (b), that Father’s abuse of amphetamine and methamphetamine renders him “incapable of providing regular care and supervision of the children” and “endangers the children’s physical health and safety, places the children at risk of serious physical harm, damage, danger, and failure to protect.”

Mother agreed to plead no contest to two (b) counts, one involving her inability to care for and supervise M.E. (count b-2) and the other involving Father’s substance abuse (count b‑4). The court accepted Mother’s plea at a hearing in July but continued father’s portion to August for inadequate notice.

At the August hearing, Father appeared remotely from Mexico via WebEx and was represented by counsel. Father denied the allegations of count b-4 and counsel argued that the allegations lacked a causal nexus to any physical harm to Children and that Children faced no current risk of harm. The court sustained the b-2 allegations pursuant to Mother’s plea and the b-4 allegations pursuant to its adjudication of the matter based on the evidence adduced at the hearing. The court dismissed all other allegations. Interlineated petitions reflecting the allegations as sustained or dismissed, respectively, were filed with the court on the date of the hearing.

After finding jurisdiction, the juvenile court proceeded to, among other things, (i) remove Children from Father; (ii) release Children to the home of Mother; (iii) order services; and (iv) authorize in-person contact by Father via weekly two-hour visits in California.

Father timely appealed.

DISCUSSION

I. We Decline to Review the Trial Court’s Jurisdictional Findings

Father concedes that “the juvenile court has jurisdiction over [Children] based on the unchallenged counts pertaining to Mother.” Nevertheless, he argues that we should review the court’s jurisdictional findings as to him—i.e., count b‑4—in the exercise of our discretion. Specifically, he argues that we have “ ‘discretion to reach the merits of a challenge to any jurisdictional finding when the finding may be prejudicial to the appellant’ ” (quoting In re D.P. (2014) 225 Cal.App.4th 898, 902), and that review is appropriate where “the erroneous finding may have negative consequences for disposition, as well as if future dependency actions are filed” or “[w]here the outcome of the appeal could be the difference between an appellant’s being an offending parent or a non-offending parent . . . .”

However, Father fails to articulate any specific prejudice he would or likely would suffer if count b‑4 was sustained in error but allowed to stand. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1493 (I.A.) [declining review where father failed to suggest “a single specific legal or practical consequence from this finding, either within or outside the dependency proceedings”].) Indeed, the premise of Father’s argument—that his lack of involvement in Children’s upbringing renders his admitted drug abuse no threat to their safety—tends to negate the risk of any prejudice. By his own admission, Father has had “no contact with his children” for “several years”; was deported from the U.S., where Children live with Mother, and is “unlikely to be able to return”; and made no effort to seek custody of Children when they were put at risk by Mother’s struggles to care for them as the sole adult available to provide them with regular care.

Further, this case is unlike those cited by Father where parents sought review to avoid being tainted by the substantive conduct findings underlying the sustained allegations. In In re P.A. (2006) 144 Cal.App.4th 1339, 1343‑1345, the father challenged the sufficiency of the evidence that he sexually abused his daughter and argued that, even if he did, such abuse did not put his sons as risk because there was no evidence to suggest a propensity to sexually abuse a male child. According to the father, the finding implying he had such a propensity precipitated “numerous negative repercussions” in his life. (Id. at p. 1345, fn. 3.) Similarly, in In re D.P., supra, 225 Cal.App.4th 898, the mother disputed a finding that she had intentionally harmed her child. The court considered her challenge notwithstanding independently sufficient alternative grounds for jurisdiction because the finding “ha[d] the potential to impact future dependency proceedings.” (Id. at p. 902.)

Here, Father “admits that he abuses drugs.” He also admits that he has had no contact with Children for several years. He only challenges the conclusion that his drug abuse is a threat to Children’s safety given his absence from their lives. Father fails to articulate any incremental prejudice that would flow from the finding of risk to Children that would not flow from the admitted underlying facts (drug use, lack of parental involvement). Father’s reference to the potential of being found a non-offending parent is unavailing without more. As the court in I.A. noted, the statutory scheme makes little distinction between the offending and non-offending parents. (In re I.A., supra, 201 Cal.App.4th at p. 1494.) For example, section 361, subdivision (c)(1), requires the court to consider permitting a nonoffending parent to retain physical custody of a child when the child is removed from the custody of an offending parent. But such provision does not apply to Father because he never had physical custody of Children at any time relevant to the proceedings. (In re Miguel C. (2011) 198 Cal.App.4th 965, 970.)

Finally, Father’s jurisdictional challenge is based on facts, not on a legal question as was presented in In re Aaron S. (1991) 228 Cal.App.3d 202, 207 (challenge to trial court’s interpretation of section 300, subd. (g).) This, too, militates against undertaking a discretionary review. (Cf. In re I.A., supra, 201 Cal.App.4th at p. 1494, fn. 7 [declining to review jurisdictional findings and distinguishing appellant’s cited authority as presenting a legal question].)

In short, Father has not articulated prejudice sufficient to warrant discretionary review and we refuse to find it for him. We therefore decline to consider his challenge to the juvenile court’s jurisdictional finding b‑4 and dismiss that aspect of his appeal.

II. We Affirm the Dispositional Order

Father makes only one challenge to the dispositional order. He contends that the trial court erroneously removed Children from him “under section 361 because [Children] were not in [Father’s] physical custody at the time the section 300 petition was filed.” In support of this argument, Father relies on In re Dakota J. (2015) 242 Cal.App.4th 619 (Dakota J.), which held that section 361, subdivision (c)(1), could not be used to remove a child from a non-custodial parent.

As DCFS notes, section 361 was amended after Dakota J. was issued to add a new subdivision (d). (Assem. Bill No. 1332 (2017 Reg. Sess.) § 1.) That subdivision specifies the circumstances under which a dependent child may be removed from the custody of a parent with whom the child did not reside at the time the petition was initiated. (§ 361, subd. (d).) The minute order below reflects that the juvenile court specifically relied on that provision in this case. Father’s challenge, which fails to address the propriety of the court’s action under subdivision (d), is therefore without merit.

DISPOSITION

We dismiss Father’s appeal with respect to the jurisdictional findings. We affirm the juvenile court’s dispositional order.

HARUTUNIAN, J.^*

We concur:

GRIMES, Acting P. J.

WILEY, J.

[1] We state the facts in the manner most favorable to the juvenile court’s order. (In re D.S. (2020) 46 Cal.App.5th 1041, 1046.)

[2] G.S. was originally named in but later dismissed from the proceedings below.

[3] Two of the Children were the subject of prior referrals, one in 2008 involving both Mother and Father and concerning neglect of A.E.; and one in 2020 involving Mother only and concerning abuse of M.E.

[4] All further statutory references are to the Welfare and Institutions Code.

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.