In re N.W.
Filed 12/27/12 In
re N.W. CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
In re N.W., a
Person Coming Under the Juvenile Court Law.
B241203
(Los Angeles County
Super. Ct. No. CK91395)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.W.,
Objector and Appellant.
APPEAL
from an order of the Superior Court of the County of
Amy Pellman, Judge. Affirmed.
Karen
B. Stalter, under appointment by the Court of Appeal for Objector and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, Tracey F.
Dodds, Principal Deputy County Counsel for Plaintiff and Respondent.
>
INTRODUCTION
D.W.
(father) appeals from a dispositional order declaring his daughter, N.W., a
dependent of the court under Welfare and Institutions Code section 300,
subdivision (b).
name="_ftnref1" title="">[1] Father contends that there
was not substantial evidence to
support the juvenile court’s jurisdictional finding under section 300,
subdivision (b) as it pertains to him because there was insubstantial evidence
that he had care, custody and control over N.W. when she was injured.
is nonjusticiable, and in any event, father’s contention has no merit. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On
January 11, 2012, the Department of
Children and Family Services (Department) filed a detention report stating
that on January 4, 2012, then one-year-old N.W., and her siblings,
Department because of a mandated referral alleging severe neglect and physical
abuse, and that N.W. was hospitalized.
Father was present at the hospital.
Supervising Medical Doctor, Dr. Fernandez, told the Department that N.W.
sustained two cuts to her head, and mother told Dr. Fernandez that N.W. fell
and landed on her head on a bowl of food when mother was feeding her. The person making the referral to the
Department stated that “the child protection hotline was notified because the
treating physician feels mother’s explanation isn’t totally consistent with the
injuries. Per caller, mother stated that she was feeding N.W. on a bed
with no frame. Therefore, the bed is
sitting low directly on the carpeted floor.â€
According to the report, Dr. Astrid Heger stated that he could not rule
out “non accidental†[sic] trauma as
to N.W. and mother’s statement “is inconsistent with†N.W.’s injuries.
According
to the January
11, 2012, detention report, on January 4,
2012, mother stated that she and father were not legally married and they did
not live together. Father told the
Department’s children’s social worker (CSW) by telephone that he was N.W.’s
father, and that he was living with friends and does not have an address or
telephone number to give to the Department.
The CSW asked father to write down her telephone number but father said
he did could not do so because he did not have a pen or paper to use to write
down the information. Father stated that
he was transient and denied living with mother and N.W. According to the report, father’s whereabouts
were “[u]nknown.†The Department placed
N.W. in protective custody.
On
January 11, 2012, the Department filed a petition pursuant to section 300,
subdivisions (a), (b), (e), and (j) on behalf of N.W., and her siblings, L.L
and N.L.
title="">[4] The petition alleged, inter
alia, that on January 14, 2012, N.W. was hospitalized and “found to be
suffering . . . [from] two hematomas and three lacerations
requiring sutures to the child’s right parietal scalp. The mother[’s] . . .
explanation of the manner in which [N.W.] sustained the . . .
injuries is inconsistent with [N.W.’s] injuries. Such injuries would not ordinarily occur
except as the result of deliberate, unreasonable and/or neglectful acts
by . . . mother and father . . who had care,
custody and control of [N.W.]. Such
deliberate, unreasonable and neglectful acts on the part of the child’s parents
endangers [N.W.’s] physical health and safety and well being, creates a
detrimental home environment and places [N.W.] and [N.W.’s] sibling[s], [L.L.]
and [N.L.] at risk of physical harm, damage and danger.â€
Mother
and father appeared at the January 11, 2012, detention
hearing, and the juvenile court found father to be the presumed father of
N.W. The juvenile court made emergency
detention orders but set the matter for the following day to conduct a
contested detention hearing.
Mother
and father appeared at the January 12, 2012,
on the bed. When mother turned to get a
“wipey†to clean N.W.’s face, N.W. fell off the bed onto a glass bowl that
mother had placed on the floor. There
was carpet on the floor to the bedroom.
Shortly after N.W. fell off the bed, father “walked in to drop off the
diaper and [mother] told him to call 911 immediately.†The juvenile court ordered temporary
placement and care of N.W. be vested with the Department pending disposition,
the Department was to have discretion to detain N.W. with an appropriate
person, and the Department was to provide mother and father with reunification
services.
On
February 24,
2012, the Department filed a
jurisdiction/disposition report stating that the whereabouts of father was
unknown and he has not provided a statement to the Department. According to the report, there were several
inconsistent statements regarding the cause of N.W.’s January 4, 2012, injuries. N.L., N.W.’s
sibling, said that mother told her that N.W. “was jumping on the bed†and fell
off and landed on a glass bowl, but the paternal grandmother said that N.W. was
“unable to jump on a bed.†L.L. said
that mother told her that N.W. “was sleeping on the bed†and fell off onto a
glass bowl. L.L. also said that father
“left and when he came back†mother told him to call an ambulance.
On
February 24, 2012, the Department filed a first
amended petition pursuant to section 300, subdivisions (a), (b), (e), (g)
and (j) on behalf of N.W., and her siblings, L.L and N.L. The first amended petition alleged, inter
alia, substantially the same allegations as the original petition, and that
mother had a history of substance abuse and was a current abuser of marijuana,
which rendered her incapable of providing N.W. and her siblings with regular
care and supervision, thereby endangering the children. Father did not appear at the February 24, 2012, pre-trial resolution conference.
According
to the Department’s March 14, 2012, last minute
information for the court report, N.W. was placed in foster care, rather than
with the paternal grandmother, because the paternal grandmother was unable to
care for N.W. due to her work schedule and her responsibilities in caring for
L.L and N.L. On March 14, 2012, the Department filed an interim review report attaching a police
report of the incident. The police
report stated, inter alia, that mother said she and father were
“separated.†The interim review report
stated that a “[d]ue [d]iligence†investigation to determine the location of
father was pending, and that on March 8, 2012, the Department
was informed that father had been arrested and sentenced in Florida, and his
expected release was March 10, 2012. The report attached a declaration of due
diligence by an adoption assistant dated February 16, 2012, stating that, “Due
[d]iligence for [father] . . . is complete. Mail was found to be delivered at†a
specified address in Florida.
According
to the March 14, 2012, interim review report, Dr. Heger said N.W.’s January 4,
2012, injuries were “concerning,†and the injuries are difficult to explain by
an accidental fall from two feet high . . . . The interim
review report attached a police report regarding the January 4, 2012, incident
stating that Dr. Kohanteb, a doctor “[o]n scene,†confirmed that N.W’s injuries
“were consistent with [mother’s] statements.â€
Father
did not appear at the April 19, 2012, adjudication and disposition hearing;
father’s counsel represented that he was living in Florida. Mother submitted on the first amended
petition, as amended, and stipulated that there was a factual basis for
them. The juvenile court ordered that
father was to remain in the section 300, subdivision (b) amended petition
allegation, stating, “[T]he evidence shows that [father] was in the home, at
the time of the injuries, and there were court findings that he did have care,
custody, and control of [N.W.], and the court is going to leave him in (b)(1).â€
The
juvenile court sustained the first amended petition allegations, as amended, to
section 300, subdivision (b). The
juvenile court found true: “b-1 [¶] On
1/4/12, one year old [N.W.] suffered injuries including two hematomas and three
lacerations requiring sutures to the child’s right parietal scalp. Such injuries would not ordinarily occur
except as the result of neglectful acts by the child’s mother and
father . . . who had care, custody and control of the child. Such neglectful acts on the part of the
child’s parents places the child at risk of physical harm, damage and
danger. [¶] . . . .
[¶]
b-4 [¶] [M]other . . . has a
history of substance abuse and is a current user of marijuana, which
occasionally [illegible] . . . the mother’s ability to supervise
[N.W.]. The mother’s substance use
places [N.W.] at risk of harm.â€
The
juvenile court denied father’s counsel request that N.W. be released to him
pursuant to section 361.2.
name="_ftnref5" title="">[5] The juvenile court then
found under section 361, subdivision (c),
substantial risk if [N.W. was] returned to the home, to the physical health,
and safety, protection or physical emotional well-being of [N.W.]. and [she]
cannot be protected without removal from the parent’s physical custody.†The juvenile court ordered that custody of
N.W. be taken “from parent,†and placed in the care of the Department for
suitable placement.
DISCUSSION
Although
father’s appeal was taken from the juvenile court’s dispositional order, he
does not question that order. Rather,
his sole contention is that is there was not substantial evidence to support
the juvenile court’s sustained jurisdictional allegation
(b) as it pertains to him. Father’s
appeal is nonjusticiable.
“[I]t
is necessary only for the court to find that one parent’s conduct has created
circumstances triggering section 300 for the court to assert jurisdiction over
the child. [Citations.] Once the child is found to be endangered in
the manner described by one of the subdivisions of section 300[,] the child
comes within the court’s jurisdiction, even if the child was not in the
physical custody of one or both parents at the time the jurisdictional events
occurred. [Citation.] For jurisdictional purposes, it is irrelevant
which parent created those circumstances.
A jurisdictional finding involving the conduct of a particular parent is
not necessary for the court to enter orders binding on that parent, once
dependency jurisdiction has been established.
[Citation.] As a result, it is
commonly said that a jurisdictional finding involving 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.â€â€™
[Citation.] For this reason, an
appellate court may decline to address the evidentiary support for any
remaining jurisdictional findings once a single finding has been found to be
supported by the evidence. (E.g.,
438, 451 [90 Cal.Rptr.3d 44] [addressing remaining findings only ‘[f]or
[f]ather’s benefit’]; In re Joshua G.
[(2005)] 129 Cal.App.4th [189,] 202 [when a jurisdictional allegation involving
one parent is found supported, it is ‘irrelevant’ whether remaining allegations
are supported]; In re Shelley J.
(1998) 68 Cal.App.4th 322, 330 [declining to address remaining allegations
after one allegation found supported]; Randi
R. v. Superior Court (1998) 64 Cal.App.4th 67, 72 [74 Cal.Rptr.2d 770]
[same].)†(In re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.)
When
“issues raised in [an] appeal present no genuine challenge to the court’s
assumption of dependency jurisdiction[,] . . . any order we enter will have no
practical impact on the pending dependency proceeding, thereby precluding a
grant of effective relief. For that
reason, we find [such an] appeal to be nonjusticiable.†(In re
I.A., supra, 201 Cal.App.4th at
p. 1491.) “The many aspects of the
justiciability doctrine in California were summarized in Wilson v. L. A. County Civil Service Com. (1952) 112 Cal.App.2d 450
[246 P.2d 688]: “‘A judicial tribunal
ordinarily may consider and determine only an existing controversy, and not a
moot question or abstract proposition. . . . [A]s a general rule it is not within the
function of the court to act upon or decide a moot question or speculative,
theoretical or abstract question or proposition, or a purely academic question,
or to give an advisory opinion on such a question or proposition
. . . .’†(
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. “‘“‘It is this court’s duty ‘“to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot
questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.â€â€™â€â€™â€â€™ [Citations.]â€
(In re I.A.,
Here,
the juvenile court had jurisdiction over the children under section 300,
subdivision (b) based on mother’s conduct, even if the finding under section
300, subdivision (b) as to father, as he contends, was not supported by
substantial evidence. Father’s appeal
therefore is nonjusticiable. (
Citing
In re P.A. (2006) 144 Cal.App.4th
1339, and In re Aaron S. (1991) 228
Cal.App.3d 202, father contends that, “Reversal of a jurisdictional finding is
necessary, even though other bases for the dependency exist, because the
erroneous finding can have a negative consequences for disposition,
reunification, and if future dependency actions are filed.†Even thought the courts in
court erred in sustaining jurisdictional allegations based on the conduct of
one parent when there was jurisdiction over the children based on the other
parent’s conduct, these cases do not discuss the propriety of doing so. When cases do not address a point, they “are
not authority for propositions not considered.
(People v. Barragan (2004) 32
Cal.4th 236, 243 [9 Cal.Rptr.3d 76, 83 P.3d 480].)†(People
v. Williams (2004) 34 Cal.4th 397, 405.)
In
addition, father merely concludes that the jurisdictional findings as to his
conduct “can†have negative consequences “for disposition, reunification, and
if future dependency actions are filed.â€
Father does not develop this contention, or his general contention that
he may challenge the sustained jurisdictional allegation under section 300,
subdivision (b) as it pertains to him, despite the unchallenged, sustained
petition allegations under section 300, subdivision (b) as to the conduct of
the mother. As the court explained in
793, it is not the role of a reviewing court to independently seek out support
for appellant’s conclusory assertions, and such contentions may be rejected
without consideration. (See also
(2002) 100 Cal.App.4th 1190, 1206, fn. 11 [“It is not our responsibility to
develop an appellant’s argumentâ€]; Paterno
v. State of California (1999) 74 Cal.App.4th 68, 106 [“An appellate court
is not required to examine undeveloped claims, nor to make arguments for
partiesâ€].) Moreover, father’s
contention that the jurisdictional findings as to his conduct “can†have
negative consequences is speculative.
Father
has failed also to establish that those findings would have “negative
consequences for disposition, reunification, [or] if future dependency actions
are filed.†Disposition has already
occurred; the juvenile court determined that custody over N.W. is to be taken
from the parents and placed N.W. in the care of the Department for suitable
placement. Father does not challenge
this order on appeal. Father, therefore,
cannot establish that the jurisdiction findings as to him had “negative
consequences†for the “disposition.â€
In
addition, because father did not challenge the order granting him reunification
services on appeal,
name="_ftnref8" title="">[8] he cannot establish that the
jurisdictional findings as to him had “negative consequences†for
“reunification.†Moreover, the purpose
of reunification services is to help the parent overcome the deficiencies that
justified the juvenile court’s assumption of jurisdiction and the removal of the
child from parental custody. (
1236, 1244 [“‘“[T]he purpose of reunification services is to facilitate the
return of a dependent child to parental custodyâ€â€™â€].) The requirement that father undergo parent
education classes and have monitored visits in Los Angeles do not provide
substantial obstacles to his “reunifying†with N.W.
Finally,
whether the jurisdictional findings as to father imposes negative consequences
“if future†dependency actions are filed is speculative. There is no reasonable basis to conclude that
a future dependency action, let alone several of them, will be filed, or what
it, or they, may concern.
Assuming
father’s substantial evidence contention is justiciable, we alternatively hold
that it is not meritorious. In
determining whether substantial evidence supports the factual findings, “all
intendments are in favor of the judgment and [we] must accept as true the
evidence which tends to establish the correctness of the findings as made,
taking into account as well all inferences which might reasonably have been
drawn by the trial court.†(
403-404.) “‘“[T]he [appellate] court
must review the whole record in the light most favorable to the judgment below
to determine whether it discloses substantial evidence . . . such
that a reasonable trier of fact could [make the findings made].â€â€™ [Citations.]â€
(In re Matthew S. (1988) 201
Cal.App.3d 315, 321.) “[I]ssues of fact
and credibility are the province of the trial court. [Citation.]â€
(In re Heather A. (1996) 52
Cal.App.4th 183, 193.)
Substantial
evidence supports the finding under section 300, subdivision (b) that
father “had care, custody, and control ofâ€
N.W. at the time she was injured. Father
is the presumed father of N.W. L.L.
stated that father “left and when he came back,†and immediately after N.W.
fell, mother told father to call the ambulance.
Mother testified that after N.W. fell from the bed, father “walked in to
drop off the diaper†and she told him to call 911. A trier of fact could reasonably conclude
that father, N.W.’s presumed father, was in the home both immediately before
and after—if not during—the incident, and that father had the right to “walk
in†to the residence or mother’s bedroom even if he were to merely drop off a diaper.
In
addition, although father appeared before the juvenile court on January 11 and
12, 2012, he did not appear at any of the subsequent hearings. Father never provided the Department with his
contact information, and until the Department performed a due diligence
investigation concerning his location, his whereabouts were unknown to the
Department. Father never provided the
Department with a statement concerning the incident or the dependency
proceeding. At one point, defendant was
incarcerated in Florida, was expected to be released on March 10, 2012, and
there is no evidence in the record that father contacted the Department after
his release from custody to participate in the case. The juvenile court could reasonably infer
from father’s conduct that he was acting out of a consciousness of
culpability. While flight may not be the
sole evidence of guilt, a trier of fact can consider it in conjunction with
other factors. (People v. Mendoza (2000) 24 Cal.4th 130, 180.)
The
conclusion reached by the dependency court finding at N.W. came within the
jurisdiction of the court under section 300, subdivision (b) based upon
father’s conduct is supported by substantial
evidence.
The juvenile
court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
TURNER, P. J.
KRIEGLER, J.
name="_ftn1" title="">[1] All statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
name="_ftn2" title="">[2] The juvenile court also sustained the petition allegations
under section 300, subdivision (b) as to the conduct of N.W.’s mother, S.W.,
but mother did not challenge that order on appeal.
