Filed 9/14/20 In re S.B. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re S.B., a Person Coming B302933
Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. 19CCJP05954A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
TITUS H.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sabina A. Helton, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant Titus H.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________________
Titus H., the presumed father of now-one-year-old S.B.,
appeals the jurisdiction finding and disposition order declaring
S.B. a dependent child of the juvenile court, removing S.B. from
Titus’s custody and ordering monitored visitation, counseling and
drug testing for Titus. On appeal Titus argues the court’s
jurisdiction finding he had engaged in domestic violence was not
supported by substantial evidence. He also contends the court
abused its discretion by failing to terminate dependency
jurisdiction at the conclusion of the combined
jurisdiction/disposition hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial and Amended Dependency Petitions
On September 12, 2019 the Los Angeles County
Department of Children and Family Services (Department) filed
a petition pursuant to Welfare and Institutions Code section 300,
subdivisions (a) (serious physical harm) and (b) (failure to
protect)1 on behalf of S.B. alleging Titus and S.B.’s mother,
Ariyel B., had engaged in a violent altercation during which Titus
choked Ariyel, pulled her hair and bit her arm.
An amended petition filed October 24, 2019 added an
allegation Titus had a history of abusing, and was a current
abuser of, marijuana, which put S.B. at substantial risk of
serious physical harm.
1 Statutory references are to this code.
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2. The Jurisdiction/Disposition Report
S.B. was born five weeks premature in May 2019 with a
congenital heart defect that the doctors indicated would require
three surgeries over five years to correct. The first surgery was
performed when S.B. was eight days old, and he remained in the
hospital until he was three months old.
On July 14, 2019, while Titus and Ariyel were visiting S.B.
in the hospital, Ariyel became upset with Titus because he
smelled like marijuana. Titus then got angry over a picture of
another man Ariyel had posted to her social media account.
According to Ariyel’s statements to hospital personnel
immediately after the incident and to a Department social worker
a few days later, Titus grabbed her by the neck, choked her and
pulled her hair. When Ariyel picked up her phone to call the
police, Titus took the phone from her. Ariyel attempted to get the
phone back; Titus bit her on the forearm, leaving bite marks. A
nurse entered the room; and Ariyel asked for help getting her
phone from Titus, who immediately left the hospital. The nurses
assisted Ariyel in contacting the police, and she was given an
emergency protective order. Ariyel told the social worker the
assault was an isolated incident and nothing similar had
happened previously. She did not seek a permanent restraining
order because she did not feel threatened by Titus.
In an interview with the social worker in October 2019,
Ariyel recanted her allegations of assault. She said she had been
reaching for her phone and Titus blocked her. Ariyel stated it
was a “small argument”; “we just had a tassel [sic].” She claimed
Titus had not pulled her hair or bitten her. The bite marks on
her arm, she explained, were from an earlier fight with someone
else. Ariyel said Titus “never . . . put his hands on me like that.”
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However, she also said she no longer wanted to be in a
relationship with Titus because he had “crossed” her by causing a
scene and involving the Department.
Ariyel and S.B. were living with Ariyel’s mother until
construction on Ariyel’s house was finished. The social worker
observed S.B. was doing well, Ariyel was attentive to his needs
and mother and child appeared to be bonding. The social worker
noted Ariyel’s mother was very protective of Ariyel and S.B.
Despite multiple attempts the Department was not able to
interview Titus until mid-October 2019. At that time Titus
denied any physical violence had occurred at the hospital. He
said he had been looking at Ariyel’s phone and she got upset. He
left immediately after the argument because he was surprised at
her reaction and he did not want to cause a scene. Titus
admitted he smoked marijuana twice a day for “breathing
issues.” But he maintained he did not smoke around S.B. and
knew he was not supposed to be under the influence of marijuana
when he visited the baby. Titus told the social worker he hoped
to reconcile with Ariyel.
Although the Department expressed concern Ariyel had
recanted her allegations and was minimizing her situation, it
nonetheless recommended S.B. be placed in her care under the
supervision of the Department. The Department recommended
S.B. be removed from Titus’s custody. The Department believed
Titus did not understand the severity of the situation. He had
not been forthcoming about the argument with Ariyel, and he
had not attempted to contact the Department for three months
after the incident despite being made aware of the Department’s
involvement much earlier. The Department was also concerned
about Titus’s marijuana use. Although he indicated he was
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willing to submit to drug testing, Titus had twice failed to show
for testing. He had also failed to provide any documentation
supporting his claim of medical necessity for his marijuana use.
The Department posited, if Titus had high levels of marijuana in
his system, he might not be able to appropriately respond if S.B.
had a medical emergency while in his care. In addition, Titus
had not had any visits with S.B. for three months because S.B.’s
health condition prevented him from being brought to the
Department’s offices and Titus’s proposed monitor had not made
an appointment for fingerprinting.
3. The Combined Jurisdiction/Disposition Hearing
The jurisdiction/disposition hearing was held on
December 2, 2019. Ariyel and Titus requested the court dismiss
the allegations of domestic violence because they were based on
an isolated incident and did not rise to the level of court
intervention. S.B.’s counsel stated her primary concern was
Titus’s marijuana use given the baby’s fragile medical condition.
The Department requested the petition be sustained as alleged,
citing the parents’ minimization of the domestic violence
allegations and Titus’s failure to cooperate with the Department’s
investigation.
The juvenile court dismissed the section 300,
subdivision (a) count but sustained the subdivision (b) counts. As
to domestic violence, the court found Ariyel’s statements made
closer in time to the incident were more reliable than her later
denials.
Proceeding to disposition Ariyel requested the juvenile
court grant sole legal and physical custody to her with monitored
visitation for Titus and close the case. She argued she had
provided a safe home to S.B. in the five months since the case had
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been opened and had prevented him from having any
unauthorized contact with Titus. Titus joined in Ariyel’s request.
The juvenile court declined to terminate its jurisdiction and
placed S.B. with Ariyel under the supervision of the Department.
Titus was ordered to participate in individual counseling and to
submit to drug testing. Titus was permitted three hours
per week of monitored visitation.
Titus filed a timely notice of appeal on December 9, 2019.
Ariyel is not a party to this appeal.
DISCUSSION
1. Titus’s Challenge to the Juvenile Court’s Jurisdiction
Finding Is Not Justiciable
Titus argues the juvenile court’s jurisdiction finding S.B.
was at serious risk of physical harm due to domestic violence
between Titus and Ariyel was not supported by substantial
evidence because the violent altercation was a one-time incident
and there was no risk of future exposure to domestic violence.
Titus does not challenge the court’s finding he is a current abuser
of marijuana, was under the influence of marijuana in S.B.’s
presence, and his substance abuse places S.B. at risk of serious
physical harm. Those findings provide a sufficient and
independent basis for affirming dependency jurisdiction over S.B.
regardless of any error in the finding as to domestic violence.
(See In re M.R. (2017) 7 Cal.App.5th 886, 896 [“‘[a]s long as there
is one unassailable jurisdictional finding, it is immaterial that
another might be inappropriate’”]; see also In re Briana V. (2015)
236 Cal.App.4th 297, 309 [“we need not address jurisdictional
findings involving one parent where there are unchallenged
findings involving the other parent”]; In re I.A. (2011)
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201 Cal.App.4th 1484, 1490 [“[a]n important requirement for
justiciability 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”].) As a result, even if we
struck the jurisdiction finding as to the domestic violence, the
juvenile court would still be empowered to order all reasonable
services necessary to protect S.B., including services addressing
conduct not alleged in the petition or sustained by the court. (See
In re Briana V., at p. 311; see generally § 362, subd. (a).)
In his reply brief Titus urges us to consider his appeal on
the merits, arguing the finding he engaged in domestic violence
could have an adverse impact in any future dependency
proceedings. In limited circumstances reviewing courts have
exercised their discretion to consider a dependency appeal
challenging a jurisdiction finding despite the existence of
independent and unchallenged grounds for jurisdiction when the
jurisdiction findings “could be prejudicial to the appellant or
could impact the current or any future dependency proceedings”
or “the finding could have consequences for the appellant beyond
jurisdiction.” (In re J.C. (2014) 233 Cal.App.4th 1, 4; see In re
D.P. (2015) 237 Cal.App.4th 911, 917; In re Drake M. (2012)
211 Cal.App.4th 754, 763.)
Titus has failed to identify any specific prejudice or adverse
consequence that could possibly flow from the jurisdiction
findings in this case. Any future dependency proceeding would
have to be based on conditions existing at that time. A past
jurisdiction finding would have limited, if any, relevance and does
not create a high risk of prejudice. (See In re I.A., supra,
201 Cal.App.4th at p. 1495.) Because Titus has not established
any actual or threatened prejudice from the unchallenged
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jurisdiction finding regarding domestic violence, his challenge to
jurisdiction based on that finding does not raise a justiciable
controversy for our consideration. (In re Briana V., supra,
236 Cal.App.4th at pp. 309-310; In re J.C., supra,
233 Cal.App.4th at p. 4; In re I.A., at p. 1492.)
2. The Juvenile Court Did Not Abuse Its Discretion by
Continuing Its Jurisdiction at the Disposition Hearing
Titus contends the juvenile court erred by failing to
terminate dependency jurisdiction over S.B. at the conclusion of
the disposition hearing. Rather than place S.B. in Ariyel’s
custody with court supervision, Titus argues, the court should
have terminated jurisdiction with an order granting sole physical
custody of S.B. to Ariyel and allowing Titus to have monitored
visitation.
Once the juvenile court finds a basis to assume jurisdiction
over a child, “the court is then required to hear evidence on the
question of the proper disposition for the child.” (In re Destiny D.
(2017) 15 Cal.App.5th 197, 205.) “Typically, once the child has
been adjudged to be a dependent child pursuant to section 360,
subdivision (d), the juvenile court determines what services the
child and family need to be reunited and free from court
supervision.” (Ibid.) However, at the disposition hearing the
court is not required to continue dependency jurisdiction over the
child and order the parents to participate in services. Instead,
the court “retains the discretion in an appropriate case to
terminate its jurisdiction at the close of a disposition hearing
when it finds services and continued court supervision are not
necessary to protect the child.” (Id. at p. 208.) But termination
of jurisdiction at the disposition hearing should not be the norm.
“To the contrary, it will be an unusual case when protections
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imposed at disposition will be sufficient to permit the conclusion
that termination is appropriate.” (Id. at p. 211 [“[j]urisdiction
should not be terminated unless the court concludes services and
ongoing supervision are not necessary to protect the child”].)
We review the juvenile court’s decision whether to
terminate jurisdiction at the disposition hearing for abuse of
discretion. (See In re Destiny D., supra, 15 Cal.App.5th at p. 213;
see also Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285,
300-301.)
Here, the court acted well within its discretion in
determining that continued jurisdiction over S.B. was necessary.
It is true Ariyel had maintained a safe home for S.B. since the
domestic violence incident. However, S.B. was not discharged
from the hospital after his birth and subsequent surgery until
August 2019, less than four months before the disposition
hearing. Ariyel had indicated her living situation with her
mother was temporary; and it would be reasonable to infer that
some of her stability derived from residing with her mother, who
the Department noted was very protective of Ariyel and S.B.
Further, in the five months since the domestic violence incident,
Ariyel had failed to gain insight into the behavior that caused
Department involvement in the first place; in fact, she had
denied there had been any domestic violence. Finally, S.B. is not
only an infant requiring constant care, but also has a serious
medical condition requiring numerous medical appointments and
major surgeries. Given these circumstances, the court acted well
within its discretion in determining the family needed continued
supervision.
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DISPOSITION
The jurisdiction findings and disposition orders are
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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