Filed 5/26/22 In re T.F.D. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from orders of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.

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T.F. (Mother) appeals from the juvenile court’s dispositional orders concerning two of her five children, T.F.D. and Tr.F. She contends that the court erred by placing Tr.F. with his previously noncustodial father, Brandon J., and terminating the court’s jurisdiction over Tr.F. As to T.F.D., Mother contends that the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with its duty of inquiry to determine whether there is a reason to believe or know that T.F.D. is an Indian child within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).

We hold that the court did not abuse its discretion in giving custody of Tr.F. to Brandon J. and terminating its jurisdiction. We also conclude that Mother’s ICWA inquiry argument is moot because the court has placed T.F.D. with Mother. We therefore do not include the facts related to that subject.

FACTUAL AND PROCEDURAL SUMMARY

Mother has five children. Each child has a different father. Brandon J. is the presumed father of Tr.F. The fathers of the other children are not relevant to this appeal.

On June 8, 2020, Mother allegedly physically assaulted her female companion in the home where Mother lived with her children. One of Mother’s children witnessed the assault; three others, including Tr.F. (then, four years old), were in the home in a different room during the altercation. T.F.D. (then 11 years old) was away from the home with the maternal grandmother. Police arrested Mother, and DCFS took the four children who were in the home into protective custody.

Mother informed a social worker that the children did not have contact with their fathers, and she did not know Brandon J.’s whereabouts. When asked whether she had any concern for the children’s safety in the event that any of the fathers took custody of their child, she said, “ ‘No, we just don’t talk.’ ”

On the day of Mother’s arrest, Brandon J. met with a social worker and Tr.F. at a DCFS office. He told the social worker that he had “never ‘laid eyes’ on [Tr.F.]” Brandon J. explained that he last saw Mother when she was five months pregnant with Tr.F. and that Mother had “disappeared without informing him of her whereabouts.” According to the social worker, Brandon J. said “that he ‘prayed’ that this day would come where he would be united with his child,” and that “he is willing and able to support and provide [Tr.F.] with all the basic necessities.” DCFS released Tr.F. to Brandon J.

On June 10, 2020, DCFS filed a petition under Welfare and Institutions Code[1] section 300 seeking dependency court jurisdiction over each of the five children. As subsequently amended, DCFS alleged that Mother and her former companion have a history of engaging in physical altercations and that Mother’s conduct endangers the children’s physical health and safety and places them at risk of serious physical harm, damage, and danger.

At a detention hearing held on June 15, 2020, the court detained Tr.F. from Mother and released him to Brandon J. under DCFS supervision. The court also released the other children to their respective fathers, with the exception of T.F.D., whose father was incarcerated. T.F.D. was detained from Mother and released to the maternal grandmother.

In its jurisdiction/disposition report, DCFS reported that Brandon J. had no prior child welfare history.

On July 6, 2020, Brandon J. informed a social worker that he is the subject of a criminal case pending in Nevada. He explained that he had been charged with “ ‘[s]ex trafficking and coercion,’ ” and told the social worker that although the charges had been “ ‘dropped,’ ” he has been “ ‘informed there is a hearing on July 20th’ ” and he “ ‘guess[ed]’ ” he was “ ‘being indicted.’ ”

On July 23, 2020, a social worker conducted a records search with the Eighth Judicial District of Clark County, Nevada, which turned up no results for Brandon J.

On July 24, 2020, Brandon J. informed the social worker that his criminal case “ ‘got pushed back to September 16th.’ ” There appears to have been no further mention of this matter in the juvenile court proceedings.

In an addendum report filed in January 2021, DCFS noted that a prior concern about Brandon J.’s “lack of housing stability” had been resolved and that Tr.F. “can remain safely with [his] father.” A social worker who had recently visited with Tr.F. did not express any particular safety concerns as to Tr.F. living with Brandon J.

On February 11, 2021, the court sustained the petition based on the allegation of Mother’s physical altercations with her former companion. The court set a disposition hearing for April 7, 2021.

At the disposition hearing, DCFS recommended that the court terminate jurisdiction as to the four children who had been placed with their fathers with orders giving the fathers custody of their children. Counsel for Tr.F. and the three other children who had been placed with their fathers agreed with that recommendation. With respect to Tr.F., counsel stated that her “office” has noted a “bond between [Tr.F.] and [Brandon J.],” based on the conversations Tr.F. and Brandon J. have had, Brandon J.’s knowledge of Tr.F.’s needs, and Tr.F.’s “stated wishes.” Counsel for Brandon J. also agreed with DCFS’s recommendation.

Mother, through her counsel, argued for the placement of all children with the maternal grandmother and asserted that placing the children with their fathers is detrimental to the children because of the “very strong relationship between all of the siblings.” Mother did not raise Brandon J.’s criminal case during the hearing.

The court declared the children dependent children of the court. As to T.F.D.—the child whose father was incarcerated—the court placed her in DCFS custody, released her to the maternal grandmother, and ordered reunification services for Mother. As to Tr.F. and the other three children, the court rejected Mother’s request that the children be placed with maternal grandmother because Mother did not “take into account the significance of [the children] having been with their fathers for nine months, and the significance that removing them from their fathers’ custody . . . that just totally ignores the detriment that that would pose to the children.” The court then ordered the children be placed in the custody of their respective fathers, terminated jurisdiction over the children, and entered orders giving the fathers sole legal and physical custody and providing for monitored visits with Mother.[2]

Mother filed a timely notice of appeal from the dispositional orders.

On April 6, 2022, after Mother filed her opening brief, we granted DCFS’s unopposed motion for judicial notice of postjudgment evidence and additional evidence on appeal. The evidence includes the juvenile court’s minute order issued on December 6, 2021, ordering that T.F.D., who had been placed with maternal grandmother, be placed with Mother.

The additional evidence also includes what county counsel represents is a register of actions in the Nevada criminal case against Brandon J. According to the register of actions, Brandon J. had been charged with “[s]ex trafficking of [an] adult,” a felony (see Nev. Rev. Stat. § 201.300(2)(B)(1)); coercion with force or threat of force, a felony (see Nev. Rev. Stat. § 207.190(2)(a)), and “[b]attery which constitutes domestic violence on [a] pregnant victim,” a misdemeanor (see Nev. Rev. Stat. § 200.485(4)(A)). The document further states that the charges were dismissed and the “[c]ase [c]losed” on September 16, 2020.

DISCUSSION

A. Placement of Tr.F. with Brandon J. and Termination of Jurisdiction

Under section 361.2, a juvenile court that has removed a child from one parent may place the child with another, previously noncustodial parent who has requested custody “unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) If the court places the child with the previously noncustodial parent, the court may further order that the parent have legal and physical custody of the child and terminate its jurisdiction over the child. (§ 361.2, subd. (b)(1).) The superior court may subsequently modify the order. (Ibid.) We review the juvenile court’s determinations under these provisions for abuse of discretion. (In re C.W. (2019) 33 Cal.App.5th 835, 863.)

Mother contends that the juvenile court abused its discretion by giving Brandon J. custody of Tr.F. and terminating its jurisdiction because Brandon J. had disclosed that he had been charged with sex trafficking and “coercion.” Moreover, if DCFS had investigated the matter more thoroughly, it would have discovered what the postjudgment evidence revealed: that he had also been charged with battery of a pregnant victim.

Initially, we note that Mother has forfeited this argument by failing to raise it below. Although Mother objected to placing Tr.F. with Brandon J., the objection was based solely on the ground that placement of Mother’s five children with five different caretakers would be detrimental to the children. She did not mention the prior criminal allegations against Brandon J. and raised no particular concern as to Brandon J.’s ability to parent Tr.F.

Even if the issue has been preserved for appeal, the court did not abuse its discretion in placing Tr.F. with Brandon J. and terminating its jurisdiction. At the outset of the case, Brandon J. informed a social worker that he had “ ‘prayed’ ” to be “united with his child,” and that “he is willing and able to support and provide [Tr.F.] with all the basic necessities.” Brandon J. had no prior child welfare history. By the time of the disposition hearing, the charges against Brandon J. had been dismissed, an early concern about his housing stability had been resolved, social workers noted no concerns during their visits with Tr.F. and Brandon J., and they reportedly developed a bond between them during the nine months they had lived together.

Mother does not dispute the accuracy of the Nevada court’s register of action regarding Brandon J.’s criminal case showing the charges against him were dismissed. She argues, however, that the dismissal of the case does not preclude his subsequent indictment on the charges. The assertion, though accurate, is not predictive.

Under these circumstances, the court did not abuse its discretion in giving custody of Tr.F. to Brandon J. and terminating its jurisdiction.

B. Indian Child Inquiry

In her opening brief, Mother contends that DCFS failed to comply with its duty of inquiry with respect to determining whether there was a reason to believe or know that T.F.D. is an Indian child under ICWA. (See § 224.2; Cal. Rules of Court, rule 5.481(a).) By the time she filed her reply brief, however, the court had placed T.F.D. with Mother, thus rendering her ICWA inquiry argument moot. (See In re A.T. (2021) 63 Cal.App.5th 267, 274 [ICWA does not apply where child is placed with a parent]; In re Austin J. (2020) 47 Cal.App.5th 870, 881, fn. 5 [when court terminates foster care placement and returns child to parent’s custody, the “question whether to reverse the prior order based on noncompliance with ICWA is . . . moot”]; In re Dani R. (2001) 89 Cal.App.4th 402, 404 [“action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events”].)

In her reply brief, Mother acknowledges this principle, but contends that we should nevertheless address the alleged inadequacy of DCFS’s Indian child inquiry because “there is a reasonable probability that issues concerning ICWA compliance will arise again.” (See, e.g., In re Austin J., supra, 47 Cal.App.5th at p. 881, fn. 5.) Such issues would arise, however, only if the court must again determine whether to remove T.F.D. from Mother’s custody or terminate her parental rights. Mother offers no explanation as to why either scenario is reasonably probable. We therefore decline to address this moot issue.

DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

MORI, J.*

[1] Subsequent statutory references are to the Welfare and Institutions Code.

[2] On the day of the disposition hearing, Mother filed requests under section 388 to have the four children who had been living with their fathers placed with the maternal grandmother. Although she asserted that it would be detrimental for the children not to be placed together, and that they should not be placed with their fathers, she did not raise any specific concern as to Tr.F. being placed with Brandon J. After the disposition hearing, the court summarily denied the requests.

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