In re J.N.
| Decision Date | 02 April 2021 |
| Docket Number | B308879 |
| Citation | 276 Cal.Rptr.3d 885,62 Cal.App.5th 767 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE J.N., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. V.N., Defendant and Appellant. |
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
Appellant V.N. (Father) challenges the juvenile court's jurisdictional finding as to Father in dependency proceedings regarding his now seven-year-old son, J.N., as well as the court's dispositional order removing J.N. from Father's custody and denying Father reunification services. Father contends the challenged jurisdictional finding and removal order are solely based on Father's incarceration and criminal record, and that such evidence is insufficient to support either jurisdiction or removal. On the record before us, we agree. Accordingly, we vacate the juvenile court's jurisdictional finding as to Father and reverse the dispositional order removing J.N. from Father's custody.
Father further argues the trial court erred in denying him reunification services based on a detriment finding under Welfare and Institutions Code section 361.5, subdivision (e).1 We conclude section 361.5 is inapplicable and that Father was not entitled to reunification services, regardless of any potential detriment to J.N. therefrom. We nevertheless vacate the court's detriment finding, because it could prejudice Father in future dependency proceedings.
J.N., born in June 2013, is the son of C.D. (Mother)2 and Father. Father has been incarcerated since August 2019, and is not eligible for parole until February 2023.
The instant dependency proceedings arose from a referral generated in April 2020 when Mother and J.N.’s newborn half sibling, R.B., tested positive for marijuana at R.B.’s birth. Mother and R.B., along with J.N.’s two other maternal half siblings, lived with the maternal grandmother. A maternal aunt told authorities that Mother, maternal grandmother, and Mother's boyfriend (the father of infant R.B.) all smoked marijuana inside the home. The maternal aunt also described a recent physical altercation between Mother and her boyfriend.
On April 30, 2020, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition alleging J.N. and his half siblings were at risk of serious physical harm as the result of the violence and substance abuse of Mother and her boyfriend, as well as Mother's history of mental and emotional problems. The petition made no allegations against Father, who was incarcerated at the time of the referral.
The social worker's detention report did describe an inconclusive 2015 referral involving Father as part of the family's "prior child welfare history." (Capitalization omitted.) According to the referring party, in late December 2015, Mother and J.N. went to Father's residence to spend the night, and Mother and Father got into an argument, during which Father punched Mother in the face twice, causing visible injuries to her lip
and left eye. The description in the report does not indicate where J.N. was during this incident, although he was "with [M]other" that night. The reporting party claimed that Mother had obtained a restraining order against Father in 2014 after a previous incident of domestic violence. The allegations in the referral were deemed "[i]nconclusive," as Mother and Father presented conflicting versions of the events, and the prior restraining order the referring party referenced "was not verified."
At the detention hearing on May 5, 2020, the court made prima facie findings on the petition and detained the children. Father was not present or represented by counsel at the hearing. The court deferred paternity findings regarding J.N. until Father could be present.
In November 2020, DCFS filed an amended section 300 petition to allege J.N. was at risk of serious physical harm as the result of Father's "violent criminal history." The petition did not reference or rely on the 2015 inconclusive referral alleging domestic violence by Father, but rather relied exclusively on a list of his convictions and his associated incarceration. As supporting evidence for the allegations, the jurisdiction/disposition report attached Father's court dockets and detailed the results of his California Law Enforcement Telecommunications System report. According to these sources, Father was convicted in 2014 of threatening a crime with intent to terrorize and exhibiting a deadly weapon (other than a firearm), in 2016 of assault with a deadly weapon (other than a firearm), and in March 2019 of causing a fire of an inhabited structure/property and assault with a deadly weapon with force and by means likely to produce great bodily injury. The 2019 convictions, both of which occurred while Father was on probation for prior crimes, resulted in the eight-year prison sentence he is currently serving. Father's record also included an entry consistent with some law enforcement involvement in the incident described in the 2015 inconclusive referral. Specifically, it noted an arrest for inflicting corporal injury on a spouse or cohabitant on December 28, 2015, which did not result in any further court action for a "reason unknown." The report did not include any further information regarding the circumstances of any of Father's crimes.
The report also included Mother's statements that she had prevented Father from being a part of J.N.’s life since the 2015 incident. Mother indicated that Father "would look for [J.N.] but she did not allow any contact with him due to his aggressive behavior."
At the combined jurisdiction and disposition hearing in November 2020, Father was represented by counsel and appeared via phone. In response to questions from the court to establish paternity, Father indicated that he never lived with Mother, but that after J.N. was born in June 2013, he would visit Mother at her home to help care for J.N. He further stated that he took J.N. to his home for a week after J.N. was first born and then "every couple of days" during that time period. The court found Father to be J.N.’s presumed father and declared J.N. a dependent of the court.
The court sustained the marijuana-related jurisdictional allegations against Mother with certain amendments. The court also sustained the jurisdictional allegations against Father as pled, noting Father had "very serious convictions of crimes that impact child safety and a parent's safety while caring for their child," including "one ... for domestic violence." Because it "was not clear to the court whether [Father] made a request for custody," "in an abundance of caution," the court found by clear and convincing evidence that placement with Father would be detrimental to J.N. and removed J.N. from Father. The court placed J.N. with Mother.
The court also denied Father reunification services under section 361.5, subdivision (e)(1). Section 361.5 sets forth certain circumstances under which a court may deny a parent reunification services to which the parent is otherwise entitled. (See § 361.5, subds. (b) & (e).) The court found such circumstances existed here, because offering reunification services to Father would be detrimental to J.N. and Father was incarcerated. (See § 361.5, subd. (e)(1).)
Father timely appealed.
A. The Record Does Not Contain Substantial Evidence to Support the Court's Jurisdictional Finding as to Father
Father first challenges the court's jurisdictional finding as to him.
As a preliminary matter, we reject DCFS's argument that, because the court's unchallenged findings involving Mother create an independent basis for jurisdiction, we should not address the jurisdictional argument in Father's appeal. ( In re Alexis E. (2009) 171 Cal.App.4th 438, 451, 90 Cal.Rptr.3d 44.) However, we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when, as DCFS acknowledges is the case here, the finding serves as the basis for a dispositional order also challenged on appeal. (See, e.g., id. at p. 454, 90 Cal.Rptr.3d 44.) We therefore consider the merits of Father's appeal.
In reviewing a challenge ( In re Noe F. (2013) 213 Cal.App.4th 358, 366, 152 Cal.Rptr.3d 484.)
A child may come within the jurisdiction of the juvenile court under subdivision (b) of section 300 if the "child has...
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