Filed 12/7/05 In re DeAnthony M. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
| In re DeANTHONY M., a Person Coming Under the Juvenile Court Law. | B181261 |
| LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MONTGOMERY S., Defendant and Appellant. | (Los Angeles County Super. Ct. No. CK17704) |
APPEAL from orders of the Superior Court of Los Angeles County. Steven Berman, Referee. Affirmed in part; reversed in part with directions.
Nancy Rabin Brucker, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Senior Deputy County Counsel, for Plaintiff and Rspondent.
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Montgomery S. appeals from the juvenile court's jurisdiction and disposition orders in the matter of his son, DeAnthony M. Father contends neither order is supported by substantial evidence as to him. He further contends the Department of Children and Family Services (DCFS) failed to give proper notice of the proceedings under the Indian Child Welfare Act (ICWA).[1] DCFS concedes error as to the notice.
We agree there was insufficient evidence to sustain the jurisdictional allegations as to Montgomery S. and find it reasonably probable this error affected the court's disposition order. Accordingly we reverse the jurisdictional order only insofar as it is based on allegations against Montgomery S. and reverse the disposition order. We further order the juvenile court to direct DCFS to give proper notice under the ICWA and not to make any order terminating parental rights until it determines such proper notice has been given.
FACTS AND PROCEEDINGS BELOW
In December 2004, three-year-old DeAnthony was removed from the home of his mother because of her drug use. DCFS filed a petition to declare DeAnthony a dependent child of the juvenile court pursuant to Welfare and Institutions Code sections (b) and (j)[2] alleging past drug use by the mother and the presence of drug paraphernalia in her home. The petition contained no allegations with respect to the child's father Montgomery S.
Montgomery S. appeared at the detention hearing and was determined to be DeAnthony's presumed father. He stated his desire to obtain custody of his son. Based on indications DeAnthony might have an American Indian heritage through both parents DCFS was ordered to give appropriate notice under the ICWA.[3] The court ordered DeAnthony detained at least until father's living situation and background could be evaluated.
At the jurisdiction hearing DCFS filed an amended petition which added a new count under section 300, subdivision (b) as to father. It alleged father had been convicted of shooting at an occupied vehicle, a felony, and of appropriating lost property, a misdemeanor. The evidence at the jurisdiction hearing showed the felony was committed in 1995 and the misdemeanor in 1993. Father admitted both convictions. Counsel for father and for DeAnthony argued these convictions were too remote in time to serve as a basis for sustaining the petition as to father. The court rejected these arguments and sustained the petition as to father under subdivision (b). The court also sustained the allegations of the petition as to the mother.
At the conclusion of the jurisdiction hearing the case proceeded to disposition. The court rejected father's request DeAnthony be placed in his custody and ruled there was no reasonable means to protect the child other than removing him from both parents' physical custody. DeAnthony was placed in the care of DCFS for suitable placement. Father was granted unmonitored visits.[4]
Father filed a timely appeal.
DISCUSSION
| I. | THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE PETITION UNDER SECTION 300, SUBDIVISION (B) AS TO FATHER. |
Father contends the finding of jurisdiction under section 300, subdivision (b) as it relates to him should be reversed because it is not supported by substantial evidence.
DCFS maintains we need not consider whether the juvenile court erred in sustaining the petition based on the allegation directed at father. Such an error would be harmless because the court would still have jurisdiction over the child based on the allegations sustained as to the mother. We agree insufficiency of the evidence to support the allegations as to father would not result in a reversal of the order finding jurisdiction.[5] We disagree, however, that sustaining the petition based on insufficient evidence would not prejudice father. Because the jurisdictional issue was actually litigated in the dependency proceeding, father would be collaterally estopped from relitigating that issue elsewhere such as in a future family court proceeding on custody and visitation[6] or in a subsequent dependency proceeding under section 300, subdivision (j) as to a sibling of DeAnthony. In addition, sustaining the subdivision (b) allegations of the petition as to father necessarily prejudiced father's ability to assume custody of his son.[7]
We review the juvenile court's jurisdictional findings to determine whether they are supported by substantial evidence.[8]
Section 300, subdivision (b) provides in relevant part a child may be declared a dependent child of the court if: â€
