In re Nathan N.
Filed 6/27/12 In re Nathan N. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 SEVEN
In re NATHAN N., a Person Coming Under the Juvenile Court
Law.
B234959
(Los
Angeles County
Super. Ct.
No. CK87645)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
CESAR N.,
Defendant
and Appellant.
APPEAL from orders of the Superior Court of
County, Jacqueline H. Lewis, Juvenile Court Referee. Affirmed.
Liana
Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and
Respondent.
In
this dependency appeal, appellant Cesar N. (“Father”
, appeals from thejuvenile court’s jurisdictional findings and disposition orders pursuant to
Welfare & Institutions Code
name="_ftnref1" title="">[1] section 395, contending that the orders
removing his minor son Nathan N. (“Minor”
, from his custody were not supportedby substantial evidence. As we explain hereafter, the jurisdictional
order is affirmed and the appeal from the dispositional order is dismissed as
moot.
AND PROCEDURAL SYNOPSIS
Background
leading to detention order.
Nathan N. is the
child subject to this appeal. The minor
is four years old. The family consists
of Father, Minor’s mother Martha N., Minor, and two maternal half-sisters. The half-sisters are 17-year-old Briana L.
and 11-year-old Samantha L.
name="_ftnref2" title="">[2] Father and M.N. married in 2005 after having
a relationship that commenced in 2003.
Father had been in the half siblings’ lives from the time that Briana L.
was nine and Samantha L. was three years old.
The reason for detaining Minor originated in a report by Briana L. to
her school counselor that Father made a sexual advance on her. Following an interview by the social worker,
during which Briana L. said that Father had sexually abused her on and off
starting when she was 12 years old, the Los Angeles County Department of
Children and Family Services (“Department”
detained Minor from Father. Evidence
considered at the detention hearing.
In addition to
evidence considered by the juvenile court set forth above as “background,” further
evidence was as follows: Samantha L. denied ever being sexually abused or
inappropriately touched by Father.
Samantha L. further denied that she ever saw Father sexually abuse her
sister. Briana L. was safe at home and
she recently was getting into trouble because she was skipping school and going
out on dates with boys.
Father
denied the allegations. Mother denied
having any knowledge of or witnessing Father sexually abuse Briana L. Mother acted appropriately and cooperated
with Department. Father was arrested on
grounds of child annoyance and solicitation of child pornography based on
allegations made by Briana L. that Father sent her many text messages. Further, that Father on one occasion asked
her to text him a nude photo of herself.
Father was released on bail. The
children were to remain in the care of Mother.
The
evidence considered at the detention hearing related to section 300
subdivisions (b), (d), and (j). The
allegations contained in the petitions stated that Father had sexually abused
Briana L., Mother had failed to protect Briana L., and that half-siblings
Samantha L. and Nathan B. were at risk of similar harm.
Detention hearing on May 3, 2011.
The parents were present. Father was found to be the presumed father of
the minor. Ricardo L. was found to be
the presumed father of Briana L. and Samantha L. Indian heritage was not an issue as conceded
by parents. Separate counsel was
appointed for Minor and the court found prima facie evidence supported the
petition. The children were ordered
detained in the custody of Mother. The
court ordered that at least weekly monitored visitation for Father with the
Minor was to occur.
The
Department filed a jurisdiction and
disposition report. In the report it
stated that Briana L. had recanted her allegations of sexual abuse. She explained the allegations were made up
because Father was too strict with her.
Briana L. had written a letter to the police detective investigating the
matter apologizing for lying about her statements about sexual abuse. In the letter Briana L. explained that she
wanted Father out of the home to give her freedom to do whatever she pleased. Samantha L. continued to deny that she had
been sexually abused by Father and she further denied that she had observed
Father sexually abusing her sister.
Minor was too young to be interviewed.
The paternal grandparents could not believe the allegations were
true. Briana L.’s father, Ricardo L.,
opined that Briana L. recanted under pressure and the allegations were true.
Father
continued to deny any sexual abuse of Briana L.
Father believed that Briana L. was retaliating against him for
disciplining her for skipping school and drinking alcohol. Father further maintained that Briana L.
wanted her parents to get back together.
Father was found to be employed full time and was living in the home of
the paternal grandparents following his release from jail. Father was supporting Mother and the children
who continued to reside in the family home.
The family would cooperate and would be willing to comply with ordered
services in order to resolve issues presented in the case.
Father’s
visits with Minor were found to be appropriate and Minor cried for his father
at the end of the visits and wanted Father to come home. The sisters also wanted to have visits with
Father.
In
its assessment, Department found the family to be at moderate risk for future
abuse and/or neglect. The Department’s
recommendation was that Minor be removed from Father’s custody and that Father
be offered family reunification services with the minor. A recommended case plan for Father included
parenting classes and individual counseling service with emphasis on sexual
abuse awareness. The Department further
recommended that all the children remain in the custody of Mother and further
that family maintenance services be provided to Mother.
Jurisdiction hearing on July 7, 2011.
Father was present, but the
matter was twice continued.
Jurisdiction hearing on July 12, 2011.
Father
was again present and was represented by counsel. The court admitted into evidence the report
of the Department prepared for the hearing, the medical records of Briana L.
from Kaiser Permanente and the police records from the police department for
the City of Bell. A supplemental report
of the Department dated June 30, 2011, was also admitted into evidence. However, it is missing from the record and
the clerk of the superior court certified in response to an augmentation request
that the report is missing from the juvenile file.
Also
admitted into evidence was Briana L.’s apology letter written a day earlier and
addressed to the court, in which Briana L. apologized for lying about the
sexual abuse allegations. Briana L. further
explained that she was tired of all of the rules laid down by her father and
she wanted the freedom to do as she pleased as she had only two months left in
high school. Briana L. further
maintained that she felt guilty and horrible for what she had done.
During
testimony taken in chambers, Briana L. testified that the social worker was
insistent on taking her to the hospital for a
was believed she might hurt herself in the face of the allegations she had
made. Briana L. denied Father came into
her room at night while she was sleeping and further denied that Father had
touched her in an inappropriate manner.
Briana L. further testified that she had never seen Father without
clothes on nor was she asked by Father to take her clothes off. She testified she was upset with her mother
and father, especially Father, for not letting her go out and particularly for
not wanting to take her on their planned trip to Las Vegas. Briana L. denied that anyone had asked her to
recant her story.
Briana
L. testified that prior to her recent false allegations, she had not told her
mother that Father was abusing her.
Briana L. said that since that time Mother had not allowed her to have
any contact with Father and furthermore she felt safe with her mother.
Court’s
ruling.
Following arguments after
completion of the evidentiary stage of the proceedings the court stated that it
did not believe Briana L.’s recantation and sustained the petition with an
amendment to the effect that Mother “should have known” and striking that
portion which stated that “mother knew” of the sexual abuse. The court declared Briana L., Samantha L. and
Minor to be dependents of the court, ordered Minor removed from Father’s
custody, and ordered the Department to provide reunification services and
monitored visits by Father with Minor.
The court ordered family maintenance services to Mother and allowed the
children to remain in her custody.
Father
filed a timely notice of appeal.
Standard
of review.
There
is no dispute as to the standard of review in this case. Both sides concede that the standard of
review is one for a search of the record to determine whether or not
substantial evidence supports the judgment of the trial court. If so, the judgment is required to be
affirmed by the court of appeal.
The
statement of the standard of review by
the People in this instance is more expansive than that of the appellant father
but nevertheless found by this court to be legally accurate. We therefore adopt the statement of the
People on the subject as follows: “A
petitioner in a dependency proceeding must prove by a preponderance of the
evidence that the child who is the subject of a petition comes under the
juvenile court’s jurisdiction. (§
355.) This Court reviews the juvenile
court’s jurisdictional and dispositional findings for substantial
evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654;
107, 111.) Under this standard of
review, the Court should examine the whole record in a light most favorable to
the findings and conclusions of the juvenile court and defer to the lower court
on issues of credibility of the evidence and witnesses. (In re
Luke M. (2003) 107 Cal.App.4th 1412, 1427 [The reviewing court ‘must defer
to the trial court’s assessments.
[Citation.] “We review a cold
record and, unlike a trial court, have no opportunity to observe the appearance
and demeanor of the witnesses.”
[Citation.]’]; In re Tania S.
(1992) 5 Cal.App.4th 728, 733-734.)
“The
juvenile court’s order must be upheld if there is any substantial evidence,
contradicted or uncontradicted, that supports the juvenile court’s order,
resolving all conflicts in support of the determination and indulging all
legitimate inferences in favor of the order.
(In re John V. (1992) 5
Cal.App.4th 1201, 1212; In re Eric B.
(1987) 189 Cal.App.3d 996, 1004-1005.)
The parent complaining about the dependency order ‘has the burden of
showing that there is no evidence of a sufficiently substantial nature to
support the finding or order.’ (
48, 57.)”
The
court properly exercised jurisdiction over the minor.
In capsule form,
Father contends there is “no” evidence to support the court’s findings that
Minor suffered serious physical harm, or illness or sexual abuse of any kind by
Father and that the Department made no such contention below. In using the term “no evidence” Father is in
effect declaring that an evidentiary vacuum exists which leads to a mandated
conclusion that the juvenile trial court had no jurisdiction over the matter. The position of Father emanates from the fact
that Minor, as a four-year-old, was not capable of appreciating Father’s
actions toward Minor’s half sisters. To
conclude, Father maintains that Minor was not at “substantial risk” of physical
harm or sexual abuse as required by section 300, subdivisions (b), (d), and (j)
and therefore the jurisdictional findings of the court must be reversed.
The
relevant portions of section 300 provide: “Any child who comes within any of
the following descriptions is within the jurisdiction of the juvenile court
which may adjudge that person to be a dependent child of the court. [¶¶] (b) The child has suffered, or there is
a substantial risk that the child will suffer, serious physical harm or
illness. . . . [¶¶] (d) The child has been sexually abused, or
there is a substantial risk that the child will be sexually abused.
. . . [¶¶] (j) The child’s sibling has been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (j), and there is a
substantial risk that the child will be abused or neglected, as defined in
those subdivisions.”
Mootness
of disposition order.
As conceded in the briefing on appeal by both sides, the
question of deprivation of custody of Minor from Father is now moot. Father, by subsequent order of the juvenile
court is now permitted to move back into the family home with protective
conditions stated. The appeal from the
disposition order should therefore be dismissed as moot. To buttress our opinion on the mootness
issue, we further note that when the court made its jurisdictional finding as
to Mother, no challenge was made at that time, or anytime. Because of the unchallenged posture, the
court had continuing jurisdiction over the minor.
“[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 her
within one of the statutory definitions of a dependent.
[Citations.] This accords with the purpose of a dependency
proceeding, which is to protect the child, rather than prosecute the
parent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397; see In
re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re Jeffrey P. (1990)
218 Cal.App.3d 1548, 1553-1554.)
Accordingly, the finding relating to the mother provides a sufficient
ground for affirming the declaration of dependency as to the minor. (See In
re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [single basis of jurisdiction
is sufficient to uphold dependency court’s order]; In re Jonathan B.
(1992) 5 Cal.App.4th 873, 875-876 [where one basis for jurisdiction supported
by substantial evidence, court need not consider sufficiency of evidence to
support other grounds].) Thus, we conclude that the
issue is moot as to Father because of the finding as to Mother.
The
jurisdictional findings and order of the juvenile court are affirmed. The dispositional order of the trial court is
dismissed as being moot.
WOODS,
J.
We concur:
PERLUSS, P. J. ZELON,
J.
name="_ftn1" title="">
[1] All
statutory references are to the Welfare & Institutions Code unless
otherwise indicated.
name="_ftn2" title="">[2] Father
was found at the detention hearing to be the presumed father of Minor. Rubio L. was found to be the presumed father
of the half siblings of Minor. Only
Father is the appellant in this appeal.
