Filed 9/22/22 In re A.W. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re A.W., a Person Coming Under B311541
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20CCJP04547)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LAVONTE W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Lisa Brackelmanns, Judge. Affirmed.
Vincent Uberti, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Principal Deputy County
Counsel, for Plaintiff and Respondent.
Lavonte W., the presumed father (father) of A.W., appeals from
the juvenile court’s jurisdictional findings and disposition order
removing A.W. (born Jan. 2015) from his custody. Despite the
continuing presence of jurisdiction over A.W. based on the conduct of
Asia P. (mother, who is not a party to this appeal), father challenges the
sufficiency of the evidence supporting the court’s jurisdictional findings
that his current incarceration, criminal history, and dangerous behavior
placed A.W. at a substantial risk of serious injury warranting removal
from his custody. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around July 2020, A.W. was living with mother, mother’s
boyfriend (E.A.), and A.W.’s younger half-siblings (A.A. and A.A.-P.;
born June 2017 and Aug. 2018, respectively).1 Throughout the entirety
of this case, father was serving a 22-year prison sentence for voluntary
manslaughter. Father had been incarcerated since December 2015.
To visit with A.W. on July 27, 2020, paternal aunt (Lariyha G.)
picked up A.W. from mother’s home. While in the car with A.W.,
Lariyha G. noticed a laceration to A.W.’s ear. When Lariyha G. asked
what happened, A.W. told Lariyha G. that E.A. had grabbed and
twisted her ear during an argument E.A. was having with mother.
Lariyha G. took A.W. to the police station, and the Los Angeles
1 E.A. is the father of A.A. and A.A.-P. E.A., A.A., and A.A.-P. are named
in the operative petition but are not subjects of this appeal.
2
Department of Children and Family Services (DCFS) received a referral
for emotional and physical abuse the next day.
A social worker interviewed mother and A.W. on August 11, 2020.
Mother reported that she had allowed E.A. to visit with A.W. and her
half-siblings even after mother ended her relationship with E.A. in
March 2020. Following the July 27, 2020 incident, however, mother
prohibited E.A. from having any contact with A.W. or her half-siblings.
A.W. confirmed that E.A. had twisted her ear on July 27, 2020. During
the same incident, A.W. reported that E.A. scratched her leg and
pinched her forehead. Regarding mother’s care, A.W. reported that
mother had cared for her alone after smoking something A.W. described
as smelling like “dead cat.”2 A.W. did not know the identity of her
biological father.
In an August 18, 2020 telephonic interview, E.A. denied that he
had injured A.W. the prior month. E.A. also reported that mother’s
housing situation was unstable, that mother used marijuana in A.W.’s
presence, and that mother left A.W. and her half-siblings in his care
with “rashes, scratches[,] and marks on their bodies.”
A social worker conducted a California Law Enforcement
Telecommunications System (CLETS) search for father. The search
revealed that father had a January 2014 conviction for battery of a
current or former spouse (Pen. Code, § 243, subd. (e)(1)), and was
2 A.W. was too young to understand the concept of drugs. Mother denied
using marijuana in the presence of children.
3
serving a 22-year prison sentence for a December 2015 conviction for
voluntary manslaughter (id., § 192, subd. (a)).
DCFS identified four prior referrals involving A.W. In one
substantiated referral in April 2019, mother left A.W. (then four years
old) and her half-siblings inside a car unsupervised for 45 minutes. The
referral resulted in a voluntary family maintenance case. The other
referrals, each deemed inconclusive, alleged that mother had failed to
adequately supervise A.W. and her half-siblings, and had engaged in
violent altercations with E.A. in the children’s presence. During
DCFS’s initial investigation in this case, mother failed to take A.W. and
her half-siblings to a HUB examination, and instead left the state with
A.W. without informing DCFS of her or A.W.’s whereabouts.3
On August 31, 2020, DCFS filed a Welfare and Institutions Code
section 300 petition alleging that A.W. was at risk of serious harm due
to E.A.’s physical abuse, mother’s failure to protect, and father’s history
of criminal convictions and incarceration.4 (See § 300, subds. (a), (b)(1).)
The court detained A.W. from parental custody and released A.W. to
mother’s custody under the supervision of DCFS.
A combined jurisdiction/disposition hearing was conducted on
March 11, 2021. In several reports filed with the court, DCFS indicated
3 Before leaving California, mother “dropped of[f] the other children to
the father [(E.A.)]; whom [sic] is currently being accused of physically
assaulting [A.W.].”
4 Undesignated statutory references are to the Welfare and Institutions
Code.
4
that on September 2, 2020, mother informed a social worker that she,
A.W., and her other children “are not safe.” When asked to clarify what
she meant by not feeling safe, mother told a social worker that father
and Lariyha G. were both gang members, and both knew where mother
and the children lived. Mother sent DCFS several text messages she
had received from father on August 31, 2020. In the August 2020 text
messages, father stated: “‘hahaha bitch just remember who the fuck you
talking to Asia on bloods and I didn’t give you permission to move my
baby out of state so just iknow [sic] I can put a stop to that at any time
bitch. I will come get [my] baby when I get out on bloods you can kill
yo[urself] for all I give a fuck I’m not first.” Mother was told to seek a
protective shelter.
As of March 2021, A.W. appeared well bonded to mother and was
comfortable living with mother in maternal grandparents’ home.
Mother indicated that if she received housing assistance, she would not
move out of California with A.W. and her other children. Father
maintained daily telephone contact with Lariyha G. and weekly
telephone contact with A.W. Due to logistical issues with the prison,
DCFS’s attempts at securing father’s interview for this case were
unsuccessful. DCFS recommended that A.W. remain in mother’s
custody with family maintenance services; DCFS did not recommend
reunification services for father.
Mother and father appeared for the contested
jurisdiction/disposition hearing. The court admitted DCFS’s reports
into evidence and heard argument from the parties. Father argued that
he should be stricken from the petition on two grounds: (1) his conduct
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was not the cause for intervention by DCFS; and (2) his incarceration
and criminal history were not adequate grounds for asserting
jurisdiction. Though counsel for DCFS agreed that it would not have
intervened “[i]f not for the actions” of mother and E.A., it was only after
its initial intervention that DCFS “learned of . . . father’s criminal
behavior, conviction[s], dangerous behavior, and its [sic] relation to
harm to [A.W.], and it’s obligated to file something when it [saw] a risk
of harm, which is—I guess, you can call it self-evident. But it’s also
based on the fact that [father is] not able to care for his child because of
his actions.”
Following argument of counsel, the court “adopt[ed] the argument
made by [DCFS] with regard to” the section 300, subdivision (b) count
alleged against father, and the court sustained the count on those
grounds. The court also sustained a section 300, subdivision (b) count
regarding E.A.’s physical abuse of A.W. and mother’s failure to protect.5
Proceeding to disposition, the court removed A.W. from father’s custody
“pursuant to dependency court disposition findings and orders, the
terms of which are contained in the minute order,”6 and released A.W.
to mother’s custody with family maintenance services. The court
ordered father unmonitored weekly telephone visits with A.W.
5 The court dismissed the allegations under subdivision (a) of section 300
that E.A. inflicted serious physical harm on A.W.
6 The minute order provided that the court found “by clear and
convincing evidence, pursuant to . . . sections 361(a)(1), 361(c), 361(d) and
362(a)” that it was “reasonable and necessary to remove the child from the
father.”
6
DISCUSSION
Father contends that the dependency court erred in sustaining the
allegation as to him under section 300, subdivision (b), and removing
A.W. from his care.
1. Justiciability
As a preliminary matter, DCFS contends that father’s appeal is
not properly before us. It is undisputed that A.W. remains under the
court’s jurisdiction based on mother’s own conduct. (See In re Alysha S.
(1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against
one parent is good against both”].) A single jurisdictional finding
supported by substantial evidence is generally sufficient to support
dependency jurisdiction and render moot a challenge to any other
jurisdictional finding. (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.)
We nonetheless retain discretion to consider the merits of a
parent’s appeal if the jurisdictional finding at issue “(1) serves as the
basis for dispositional orders that are also challenged on appeal
[citation]; (2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings [citations]; or (3)
‘could have other consequences for [the appellant], beyond jurisdiction.’”
(In re Drake M. (2012) 211 Cal.App.4th 754, 762–763; accord, In re
Christopher M. (2014) 228 Cal.App.4th 1310, 1316–1317.)
Here, father challenges the jurisdictional findings not in isolation,
but as predicate findings on which the court removed A.W. from his
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custody. We therefore exercise our discretion to review his claims
despite the ongoing presence of dependency jurisdiction over A.W.
2. Jurisdictional Findings
Father asserts substantial evidence does not support the juvenile
court’s jurisdictional findings against him.
As father concedes, our review of the juvenile court’s jurisdictional
findings is governed by the substantial evidence standard of review. (In
re Natalie A. (2015) 243 Cal.App.4th 178, 184.) Under that standard,
we must uphold the court’s findings “‘unless, after reviewing the entire
record and resolving all conflicts in favor of the respondent and drawing
all reasonable inferences in support of the judgment, we determine
there is no substantial evidence to support the findings. [Citation.]’”
(In re J.N. (2010) 181 Cal.App.4th 1010, 1022; accord, In re I.J. (2013)
56 Cal.4th 766, 773.)
As relevant here, the juvenile court may assert dependency
jurisdiction if the child has “suffered, or there is a substantial risk that
the child will suffer, serious physical harm . . . as a result of the failure
or inability of his or her parent . . . to adequately supervise or protect
the child, or the willful or negligent failure of the child’s parent . . . to
adequately supervise or protect the child from the conduct of the
custodian with whom the child has been left.” (§ 300, subd. (b)(1).)
Father asserts that the court’s jurisdictional findings against him
“cannot stand because they were based solely on his criminal history
and incarceration,” which he maintains bore no relationship to a risk of
harm to A.W. In support of this argument, father relies exclusively on
8
In re J.N. (2021) 62 Cal.App.5th 767 (J.N.). However, J.N. does not aid
father.
As here, the dependency proceedings in J.N. arose out of
endangering conduct by the mother and her boyfriend while the father
of J.N. was incarcerated. (J.N., supra, 62 Cal.App.5th at pp. 771–772.)
DCFS filed an original petition naming the mother and boyfriend as
offending parents, and a subsequent, amended petition alleging father’s
violent criminal history placed the child at risk of harm. (Id. at pp. 772–
773.) “As supporting evidence for the allegations [against the father],
the jurisdiction/disposition report attached [the father’s] court dockets
and detailed the results of his [CLETS] report.”7 (Ibid.) The report
noted an arrest for inflicting corporal injury on a spouse or cohabitant,
“which did not result in any further court action [against the father] for
a ‘reason unknown.’” (Id. at p. 773.) The report also included
statements by the mother that she had prevented the father from being
a part of the child’s life, and did not allow the father any contact with
the child “‘due to his aggressive behavior.’” (Ibid.) The juvenile court
sustained the jurisdictional findings against the father, “noting [that
the father] had ‘very serious convictions of crimes that impact child
safety and a parent’s safety while caring for their child,’ including ‘one
7 According to the CLETS reports, the father of J.N. suffered a 2014
conviction for threatening a crime with intent to terrorize and exhibiting a
deadly weapon; a 2016 conviction for assault with a deadly weapon; and two
2019 convictions for causing a fire of an inhabited property, and assault with
a deadly weapon and by means likely to produce great bodily injury. (J.N.,
supra, 62 Cal.App.5th at p. 773.)
9
. . . for domestic violence.’” (Ibid.) The court removed J.N. from the
father’s custody and placed J.N. with the mother. (Ibid.)
On appeal, the father argued, and the appellate court agreed, that
the record did not support the jurisdictional findings that the father’s
incarceration and criminal history placed J.N. at substantial risk of
harm. (J.N., supra, 62 Cal.App.5th at pp. 775.) The court reasoned
that while “a parent’s past violent criminal conduct will be highly
relevant in determining the likelihood of violence to a child in the
future,” there must be “some nexus between the past violence and some
likely future violence that could endanger the child.” (Id. at p. 776.) To
determine whether such a nexus existed, the court considered whether
the father had committed crimes of domestic violence or crimes
involving children; whether the father had fought or interfered with
efforts by the mother “to shield” the child from the father’s criminal
lifestyle; and whether the father failed to protect the child from an
abusive situation of which he knew or should have known. (Id. at
p. 776.) Finding no evidence to support these factors, the court
determined that there was no nexus between the father’s conduct and
potential harm to J.N., thereby compelling the reversal of the
jurisdictional findings under section 300, subdivision (b). (Ibid.)
Here, by contrast, father was convicted of a crime of domestic
violence (i.e., battery of a current or former spouse). Father was also in
contact with A.W. (through weekly telephone communication), and he
attempted to interfere with mother’s efforts to shield A.W. from father’s
criminal lifestyle. Father’s threat “on bloods” to stop mother from
moving out of California with A.W. confirmed mother’s report that he
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was gang affiliated, and reasonably suggests father could carry out this
threat from prison. Moreover, it does not appear that father ever
inquired about the adequacy of care A.W. was receiving. Instead, he
left A.W. in an environment in which the child was physically abused,
exposed to domestic violence and drug use, and left unsupervised for
extended periods of time. Viewing the record in totality, we therefore
conclude that substantial evidence supports the findings that father’s
criminal history, incarceration, and dangerous behavior placed A.W. at
substantial risk of suffering physical harm. (Accord, In re Alexis H.
(2005) 132 Cal.App.4th 11, 16; In re James C. (2002) 104 Cal.App.4th
470, 483.)
3. Disposition Order
Father also challenges the sufficiency of the evidence to support
the order removing A.W. from his custody.8
“After the juvenile court has assumed jurisdiction, the court is
required to hear evidence on the question of the proper disposition to be
made of the child.” (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345
8 In his opening brief, father alleged that the juvenile court committed
reversible error by failing to state a factual basis for its removal order. (See
§ 361, subd. (e) [the juvenile court “shall state the facts on which the decision
to remove the minor is based”].) Father did not raise an objection on this
basis at the contested jurisdiction/disposition hearing, and he provided no
response in his reply brief to DCFS’s argument that his failure to object
below forfeited the issue on appeal. We presume father has conceded he
forfeited the issue. (See In re John M. (2013) 217 Cal.App.4th 410, 419,
abrogated on another ground in In re R.T. (2017) 3 Cal.5th 622, 628; Dills v.
Redwood Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
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(Anthony Q.).) To remove a child from a parent with whom the child did
not reside at the time the petition was initiated, the court must find by
clear and convincing evidence that there would be a substantial danger
to the health, safety, protection, or well-being of the child for the parent
to live with the child or otherwise exercise the parent’s right to physical
custody, and there are no reasonable means by which the child’s health
can be protected without removing the child from parental custody.
(§ 361, subd. (d).)
For an incarcerated parent, “[t]he test must therefore be whether
[the parent] ‘otherwise exercis[ing his or her] . . . right to physical
custody’ [citation]—for example, by making arrangements for [the
child’s] living situation while [the parent] is still in prison—would
create the requisite substantial risk.” (J.N., supra, 62 Cal.App.5th at
p. 778.) Because the focus of disposition is on averting harm to the
child, the parent need not be dangerous, and the minor need not have
been harmed before ordering the child removed from parental custody.
(In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
On review of a finding that has been “proved by clear and
convincing evidence, the question before the appellate court is whether
the record as a whole contains substantial evidence from which a
reasonable fact finder could have found it highly probable that the fact
was true.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.);
cf. In re V.L. (2020) 54 Cal.App.5th 147, 155 [“O.B. is controlling in
dependency cases”].)
Here, father asserts the record is insufficient to support the
requisite findings that he intended to exercise his physical custody over
12
A.W., and even assuming he did intend to exercise that right, he
contends insufficient evidence supports a finding that he would place
A.W.’s health or well-being in substantial danger.
The intent of father to exercise physical custody over A.W. is
readily established by his recent threats to control A.W.’s living
situation. Upon learning of mother’s plan to move out of state with
A.W., father sent mother several threatening text messages from
prison. In those messages, father declared that he did not “give
[mother] permission to move my baby”; he could “put a stop to [the
move] at any time”; and he would “come get [my] baby when I get out on
bloods.” It is clear from these messages that father, if given the
opportunity, would exercise his physical custody over A.W. either
individually (if he was let out of prison), or by making his own
arrangements while in prison. (See In re Isayah C. (2004) 118
Cal.App.4th 684, 700 [“a parent may have custody of a child, in a legal
sense, even while delegating the day-to-day care of that child to a third
party”].)
Ample evidence also supports the finding that if father were to
exercise his right to physical custody over A.W., he would create the
requisite substantial risk. Father is gang affiliated and is serving a
lengthy prison sentence for unlawfully killing another person. (See In
re D.B. (2018) 26 Cal.App.5th 320, 332 [courts may consider as relevant
the parent’s past conduct and current circumstances].) Prior to his
current conviction, father was convicted of assaulting a current or
former spouse, a fact suggesting the likelihood that “future violence . . .
could endanger the child.” (J.N., supra, 62 Cal.App.5th at p. 776.)
13
Father’s violent criminal history, his continued ties to gang culture, and
his recent threats to forcibly control A.W.’s living situation support the
order “removing” A.W. from his custody—“that is, limiting [father’s]
control of the child, including the right to determine [A.W.’s]
placement.” (Anthony Q., supra, 5 Cal.App.5th at p. 354.)
DISPOSITION
The jurisdictional findings and disposition order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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