In re Rudolph R.
Filed 3/1/13 In re Rudolph R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
In re RUDOLPH R., A Person
Coming Under the Juvenile Court Law.
B241262
(Los Angeles County
Super. Ct. No. CK20954)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RUDOLPH R.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court of
County, Veronica McBeth, Judge.
Affirmed.
Christopher R.
Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Office of the County Counsel, James M. Owens, Assistant County
Counsel, Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
Appellant
Rudolph R. (Father) appeals the juvenile court’s finding of jurisdiction under
Welfare and Institutions Code section 300, subdivision (b), and its
participate in individual counseling, parenting classes and fatherhood education.
Finding the court’s orders supported by substantial evidence, we affirm.
On December
29, 2011, 15-year old Rudolph R. (Rudy) was released from juvenile
custody. At the time, his parents,
Father and Magdalena M. (Mother) were incarcerated.
In addition, there was a dependency proceeding pending with respect to
Rudy’s two younger siblings, Isaac and Alex, and three half-siblings.
On January 4,
2012, the Department of Children and
Family Services (DCFS) filed a petition alleging that Rudy had no parent to
provide care, supervision and the necessities of life, including food, shelter,
clothing and medical care, because Mother was incarcerated and Father’s
whereabouts were unknown.
name="_ftnref4" title="">[4]
Rudy was detained and placed in a group home. The court gave DCFS discretion to place him
with any appropriate relative.
In January,
the caseworker learned that Father would be released from prison on January 31
and planned on residing with his mother.
The caseworker interviewed several relatives, including the paternal
grandmother and an aunt who had had custody of Rudy in the past, but was unable
to locate an appropriate relative placement.
The paternal grandmother stated she could not take Rudy. She reported that at one time, Father’s
children had been placed with her, but they were removed when she decided “it
was too much for her.†Rudy was left in
his placement at the group home, where he was doing well.
In March 2012,
the caseworker reported that Father had been released from custody and was
living with the paternal grandmother.
Father did not comply with a request to go to DCFS offices for an
interview, blaming his lack of a car.
Rudy stated he “would not mind†living with Father, but preferred to
stay in the group home until Mother was released.
Father claimed to have worked construction and provided for Rudy and the
other children when he was not incarcerated.
When he was incarcerated, he “hop[ed] [M]other would step up and take
care of the children.†The caseworker
stated that Father had no job or transportation and was not ready to assume
custody of Rudy. In addition, there did
not appear to be a “real bond†between father and son. DCFS recommended that Father be provided
reunification services, including conjoint therapy, “to work on building a
relationship†so that Rudy could “transition . . . to [Father’s] care.†However, Father stated he did not want to
attend classes or work on building a relationship with Rudy if Rudy was going
to “abandon him†when Mother was released.
At a hearing
on March 1, 2012, Father appeared for the first time. His attorney announced that jurisdiction
would be contested and requested that Rudy be released to Father. The court put the matter over for a contest,
granted Father visitation, and gave DCFS discretion to place Rudy with Father
once his home had been assessed.
Later in
March, the caseworker visited the paternal grandmother’s home. The grandmother and her adult daughter lived
in one of the three bedrooms. The
grandmother’s estranged husband still lived in the second bedroom because he
could not afford to move out and the couple could not afford to divorce. Father lived in the third bedroom. An adult son lived in a detached room in the
back of the house.
name="_ftnref9" title="">[9]
The grandmother said she would prefer that Father reunify with Rudy
after he had his own place because there was not enough room for the boy in her
house.
At the
jurisdictional/dispositional hearing on April 23, 2012, the court found that
Father was unable to provide Rudy the necessities of life, including food,
shelter and clothing, justifying assertion of jurisdiction under section 300,
subdivision (b) (failure to protect).
Father’s counsel asked that Rudy be released to Father, suggesting the
boy could stay with Father at the paternal grandmother’s house while Father
looked for another place to live. The
court pointed out that the grandmother had never indicated a willingness to
allow the boy to move into her home.
Turning to disposition, the court ordered Father to participate in
individual counseling, parenting classes, and a fatherhood class.
The court permitted unmonitored visitation. This appeal followed.
A. Jurisdiction
In order to
assert jurisdiction over a minor, the juvenile court must find that he or she
falls within one or more of the categories specified in section 300. (In re
Veronica G. (2007) 157 Cal.App.4th 179, 185.) DCFS bears the burden of proving by a
preponderance of the evidence that the minor comes under the juvenile court’s
jurisdiction. (Ibid.; In re Shelley J.
(1998) 68 Cal.App.4th 322, 329.) “We
review the juvenile court’s jurisdictional findings for sufficiency of the
evidence. [Citations.] We review the record to determine whether
there is any substantial evidence to support the juvenile court’s conclusions,
and we resolve all conflicts and make all reasonable inferences from the
evidence to uphold the court’s orders, if possible. [Citation.]â€
(In re David M. (2005) 134
Cal.App.4th 822, 828.)
Section 300,
subdivision (b), the provision under which the court asserted jurisdiction over
Rudy in the present matter, permits the court to adjudge a child a dependent of
the juvenile court where “[t]he child has suffered, or there is a substantial
risk that the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child . . . .â€
A true finding under subdivision (b) requires proof of: “(1) neglectful conduct by the parent in one
of the specified forms; (2) causation; and (3) ‘serious physical harm or
illness’ to the minor, or a ‘substantial risk’ of such harm or illness.†(In re
Rocco M. (1991) 1 Cal.App.4th 814, 820.)
DCFS must show that at the time of the jurisdictional hearing there was
a current risk of substantial harm, or that the child would be at substantial
risk of serious physical harm in the future.
(In re J.N. (2010) 181
Cal.App.4th 1010, 1023; In re Savannah M.
(2005) 131 Cal.App.4th 1387, 1396.)
When Rudy was
released from juvenile custody on December 29, 2011, Father and Mother were
incarcerated and unable to care for him.
Neither made arrangements for another responsible adult to care for
their son or to provide food and housing.
(See In re A.A. (2012) 203
Cal.App.4th 597, 606-607 [incarcerated parent can avoid assertion of dependency
jurisdiction by making suitable arrangements for child’s care during period of
incarceration].) Had DCFS not detained
Rudy, he would have had nowhere to go.
Father does
not dispute that Rudy was properly detained due to Father’s incarceration, but
suggests that in determining jurisdiction, the inquiry should have focused on
more current circumstances. Father
contends that no evidence supported a finding that he could not have
competently parented and provided for Rudy as of the date of the jurisdictional
hearing. We disagree. In determining whether a child is at risk of
current or future harm for jurisdictional purposes, the court may properly
consider the parent’s past actions. (
461.) The evidence established that
Father was in and out of prison throughout Rudy’s life, leaving the boy with
Mother and “hoping†she would care for him despite her own habitual criminal
behavior and frequent incarcerations. A
2010 jurisdictional petition had already been sustained based on Father’s
failure to provide care for Rudy’s siblings, Isaac and Alex. Father’s past actions demonstrated that he
had no appreciation of the importance of ensuring that a minor has a home and
proper adult supervision every day of his or her young life, no matter what the
parent’s circumstances. Moreover, the evidence
was clear that Father had secured no place for Rudy to live, although several
months had passed since his release. The
paternal grandmother had repeatedly made clear there was no room for Rudy in
her home. Substantial evidence supported
the court’s finding at the jurisdictional hearing that without dependency
intervention, Rudy would be at risk of being left homeless, without care and
support.
Citing In
re G.S.R. (2008) 159 Cal.App.4th 1202, Father contends jurisdiction was
wrongfully based on his indigency. In
findings with respect to the father, who had been noncustodial and deemed
“nonoffending.†(159 Cal.App.4th at p.
1207.) After proceedings began, the
father saw his children nearly every day, while he worked and saved money to
rent a place where they could live. (
suitable housing at the time of the dependency proceedings, that he was or had
ever been an unfit or negligent parent.
In reversing an order terminating parental rights, the appellate court
stated: “DCFS may not bootstrap the fact
that [the father] was too poor to afford housing, which would not have served
as a legitimate ground for removing the boys in the first place, to support
findings of detriment, all of which flow directly from the circumstances of
[his] poverty and his concomitant willingness to leave his sons in his family’s
care while he stayed close, maintained familial ties and worked to raise rent
money.†(Id. at p. 1213.) Here,
Father was named in the petition and the jurisdictional finding was not based
on his indigency alone but on his voluntary decision to repeatedly engage in
criminal conduct, his failure to make arrangements for Rudy’s care and
supervision during the periods of separation that inevitably followed, and his
failure to make any viable plan for Rudy’s housing or care after his release
from incarceration. The court’s decision
to assert jurisdiction and assist Father in becoming a competent parent was
fully supported.
B. Disposition
After finding
that a child is a person described in one of the subdivisions of section 300
and therefore the proper subject of dependency jurisdiction, the court must
determine “the proper disposition to be made of the child.†(§ 358.)
“A dependent child may not be taken from the physical custody of his or
her parents . . . with whom the child resides at the time the
petition was initiated, unless the juvenile court finds clear and convincing
evidence . . . [¶] . . . [that] [t]here is or would be a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected
without removing the minor from the minor’s parent’s
. . . physical custody.â€
(§ 361, subd. (c)(1).) “The
parent need not be dangerous and the child need not have been actually harmed
for removal to be appropriate. The focus
of the statute is on averting harm to the child.†(In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
On review of the court’s dispositional findings, “we employ the
substantial evidence test, however bearing in mind the heightened burden of
proof.†(In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Father’s sole
contention with respect to disposition is that the absence of evidence to
support a jurisdictional finding should lead to reversal of the dispositional
order.
title="">[12]
As we have concluded that the jurisdictional order was supported by
substantial evidence, there is no basis for overturning the dispositional
order. Moreover, our review of the
record convinces us that the dispositional order was fully supported under the
appropriate standard. The conclusion
that there would be a substantial danger to the boy if placed with Father was
supported by evidence that Father had failed to ensure that his son was
properly supervised and cared for when his parents were absent. The conclusion that Father and Rudy had no
real bond was supported by evidence that Father had been repeatedly absent from
his son’s life due to his frequent incarcerations, by Rudy’s statement that he
preferred to stay in the group home rather than live with Father, and by
Father’s statement that he did not want to work on his relationship with Rudy
if the boy was going to “abandon†him when Mother was released. The court reasonably concluded that Father
required dependency intervention and participation in therapy, parenting, and
fatherhood classes in order to build a bond with his son and to understand the
boy’s need for consistent care and supervision.
DISPOSITION
The
jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
Undesignated statutory
references are to the Welfare and Institutions Code.
Mother has a lengthy criminal
history going back to 1993, including arrests and/or convictions for burglary,
battery, grand theft, false impersonation, and possession of a controlled
substance. In 2008, she was sentenced to
180 days and 270 days in jail. In 2009,
she was sentenced to 37 days in jail. In
2010, she was sentenced to 18 months imprisonment. Father’s criminal history goes back to 1985
and includes convictions for taking a vehicle without the owner’s consent,
burglary, vehicle theft, corporal injury on a spouse, and possession of a
controlled substance. He was sentenced
to various terms of incarceration in 1994, 1997, 2008, and 2010.
