California Court of Appeal Oct 21, 2021 No. E076562Unpublished
Filed 10/21/21 In re A.P. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.P. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E076562
Plaintiff and Respondent, (Super. Ct. Nos. J286215, J286216)
v. OPINION
G.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy
County Counsel, for Plaintiff and Respondent.
1
I.
INTRODUCTION
In this juvenile dependency case, the parents were also involved in an ongoing
child custody battle in the family court over their teenage girls, L.P. and A.P. (born in
2006 and 2007, respectively). San Bernardino County Children and Family Services 1 (CFS) filed this case under Welfare and Institutions Code section 300, subdivisions (a)
Mother contends there was insufficient evidence to support a finding of
jurisdiction over the girls under section 300, subdivision (b)(1). We disagree.
Under R.T., supra, 3 Cal.5th 622, even assuming Mother was not blameworthy for
the girls’ misbehavior, Mother’s inability to supervise and protect the girls supported
jurisdiction under section 300, subdivision (b)(1). In R.T., at age 14, R.T. began running
away from home and not attending school. She also falsely reported that her mother had
abused her. At age 15, R.T. gave birth to a daughter and a few years later she had
another child. After R.T.’s mother unsuccessfully attempted to supervise and protect
R.T., the mother sought assistance from law enforcement and the county department of
children and family services (department). Because of R.T.’s history of falsely reporting
that mother abused her, it was difficult for the mother to discipline R.T. The mother
therefore arranged for R.T. to live with her maternal grandfather, who had worked with
troubled youth. R.T.’s grandparents also had difficulty controlling R.T., who struggled
with anger management issues and threw a chair at her grandfather. (R.T., supra, at p.
625.) The department filed a dependency petition and the court found jurisdiction under
14
section 300, subdivision (b)(1), on the ground neither the mother nor grandparents could
control R.T. The court authorized placement of R.T. in foster care while reunification
services were provided. Ultimately, R.T. was placed back with her maternal
grandparents. R.T.’s mother appealed the jurisdiction and disposition orders. The Court
of Appeal and our Supreme Court upheld the orders. (R.T., supra, at p. 625.)
In R.T., the Supreme Court held that section 300, subdivision (b)(1) “authorizes
dependency jurisdiction without a finding that a parent is at fault or blameworthy for her
failure or inability to supervise or protect her child.” (R.T., supra, 3 Cal.5th at p. 624.)
The court in R.T. explained that a child may be incorrigible without any neglectful
conduct on the parent’s part. (Id. at pp. 629, 633.) In R.T., the evidence suggested that
the child in R.T. “faced an ongoing risk of harm based on her increasingly self-destructive
behavior, behavior that mother simply could not control.” (Id. at p. 634.)
Mother argues there was no evidence the girls were physically harmed or were at
risk of future harm. Unlike R.T., they did not run away from home. Mother maintains
there is no evidence of any physical abuse or risk of abuse. While the facts in R.T. are
more extreme, we nevertheless conclude there was sufficient evidence to support the trial
court’s jurisdiction order under section 300, subdivision (b)(1). As in R.T., the adolescent
girls made false allegations of child abuse against their custodial parent with the intent of
being removed from their current home. In addition, although the girls did not run away,
they threatened to do so. The evidence also shows that, because of Mother’s concerted
effort to alienate the girls from Father and her repeated attempts to obtain physical
15
custody of the girls by lying, the girls became complicit in Mother’s custody efforts by
attempting to carry out a scheme of provoking physical violence by Father’s girlfriend.
In addition, because of the girls’ alienation from Father and their threats of
running away if placed with Father, there was the ongoing risk of physical harm if they
ran away, misbehaved in self-destructive ways, or acted out in defiance in response to
being placed with Father or in response to his girlfriend’s discipline. The evidence shows
that before the instant case was filed, the girls on numerous occasions refused to go to
Father’s home, resulting in the family court authorizing law enforcement to assist in
enforcing the court’s orders requiring the girls to return to Father’s home after visits with
Mother. Mother and the girls’ conduct leading to, and continuing during the instant
proceedings, was consistent with Mother and the girls’ history of lying, scheming, and
violating court custody orders, with the objective of convincing the court to allow Mother
to have physical custody of the girls.
The evidence also supports a reasonable finding that Mother urged and
encouraged the girls’ lies and schemes of falsely accusing Father and his girlfriend of
child abuse. The girls’ most recent scheme created a risk of physical violence
precipitated by the girls planning to provoke Father’s girlfriend to hit L.P.
16
In addition, there was a risk of harm if the girls were left with Mother, because she
had a history of not following court orders and the court had twice sustained sexual abuse
allegations against her husband, resulting in the court twice removing his adoptive son
from him. A.P. told a family law evaluator in December 2019, that she did not want to
live with Mother because of Mother’s husband. A.P. said she did not like the way he
looked at her. While the juvenile court did not state it was basing jurisdiction on this
factor, there was a risk of harm to the extent Mother’s husband was a known child sex
offender and Mother might fail to comply with court orders protecting the girls from her
husband because of her steadfast determination to obtain custody of the girls. There was
the risk of Mother ignoring or not disclosing sexual abuse of the girls and of discouraging
the girls from reporting it.
Mother argues that the girls’ misbehavior was not extreme and stopped while they
were in protective foster care for six months. Mother maintains that, therefore, at the
time of the jurisdiction hearing, there was no substantial risk of significant serious harm,
which was required for jurisdiction under section 300, subdivision (b)(1). But the girls
had little, if any, incentive to misbehave while in foster care because such conduct would
not likely lead to being placed with Mother. The circumstances of living in foster care
were quite different than those when the girls were living with Father and visiting
Mother. Although the girls did not misbehave while in foster care, this did not
demonstrate that they would not do so when returned to Father’s custody.
17
In addition, the girls’ alienation from Father and their false threats of child abuse
interfered with Father’s ability to discipline the girls. Such circumstances potentially
created a reluctance by Father to discipline the girls out of concern the girls would act out
or make false allegations against him. Mother’s steadfast determination to obtain custody
of the girls also potentially interfered with her ability to discipline the girls, because she
was motivated to give in to their desires, even if doing so was potentially harmful to the
girls.
We therefore conclude there was substantial evidence that, because of serious
alienation issues engendered by Mother over the years, the girls had become incorrigible,
disobedient, dishonest, and defiant when it came to being required to live with Father.
Even assuming, as Mother claims, she was not the instigator of the girls’ misbehavior,
Mother did nothing to discourage or prevent it. As in R.T., the court reasonably found the
girls were at risk of physical harm because of Mother’s failure to provide proper care and
supervision by not controlling the girls and effectively disciplining them.
V.
FAMILY COURT AND JUVENILE COURT DUAL JURISDICTION
Mother maintains that, instead of CFS filing a dependency petition and detaining
the girls, the better course of action would have been for CFS to return the girls to Father
and allow the family court to address Mother’s actions. Regardless, we conclude CFS
was not required to do so.
18
“The litigation of custody issues in family court does not estop the juvenile court
from reconsidering factually identical issues.” (In re Desiree B. (1992) 8 Cal.App.4th
286, 293.) “‘[T]he mere fact that a litigation is pending between the parents and that an
order granting the custody of the children has been made therein does not take away the
power of the state nor prevent the exercise of that power under the Juvenile Court Law.’”
(In re Travis C. (1991) 233 Cal.App.3d 492, 500, quoting Dupes v. Superior
Court (1917) 176 Cal. 440, 441-442 (Dupes); see In re Desiree B., supra, 8 Cal.App.4th
at pp. 292-293.) This is because the objective and focus of juvenile court is to protect the
children.
“When a juvenile court terminates its jurisdiction over a dependent child, it is
empowered to make ‘exit orders’ regarding custody and visitation. [Citations.] Such
orders become part of any family court proceeding concerning the same child and will
remain in effect until they are terminated or modified by the family court. [Citation.]”
(In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123.) Rule 5.695 (a)(7) states in
relevant part that at the disposition hearing, the court may “[d]eclare dependency, remove
physical custody from the parent . . . and: [¶] (A) After stating on the record or in
writing the factual basis for the order, order custody to a noncustodial parent, terminate
jurisdiction, and direct that Custody Order-Juvenile-Final Judgment (form JV-200) be
prepared and filed under rule 5.700,” which is what the court did in the instant case. The
juvenile court’s power under section 362.4 to make custody and visitation exit orders
19
requires it “to make an informed decision concerning the best interests of the child.” (In
re John W. (1996) 41 Cal.App.4th 961, 972.)
In the instant case, the juvenile court was authorized to take protective jurisdiction
over the girls, and under section 361.2, terminate jurisdiction and enter exit orders,
including child custody and visitation orders. Mother nevertheless argues that CFS’s
“involvement was inappropriate in view of the family court’s involvement and orders,”
and “CFS should have stood aside,” returned the girls to Father, and then let the family
court handle the matter.
As CFS notes, Mother’s contentions are perplexing in that Mother repeatedly
complained that CFS failed to respond and investigate the girls’ and her child abuse
allegations against Father. Mother also persistently attempted to keep the girls away
from Father, including by absconding with them to Arizona and repeatedly accusing
Father of child abuse. Mother’s counsel argued during the jurisdiction and disposition
hearing that, “[g]iven the minors’ relationship with [Father] and his documented abusive
history, placing the minors with [him] would be detrimental.” Furthermore, Mother
ultimately benefited from the petition and exit orders because the juvenile court ordered
joint legal custody, instead of awarding Father sole legal and physical custody, as
previously ordered by the family court.
Because substantial evidence demonstrates there was a serious risk of harm to the
girls and need to protect the girls when CFS filed its petition, CFS appropriately filed the
instant case in juvenile court and detained the girls in foster care, rather than deferring the
20
matter to the family court to address Mother’s actions and immediately returning the girls
to Father.
VI.
DISPOSITION
The February 4, 2021 orders and judgment are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
MILLER Acting P. J.
RAPHAEL J.
21
AI Brief
AI-generated · verify before citing
Holding. The juvenile court properly exercised dependency jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1) because the children were at substantial risk of harm due to their incorrigible behavior and the mother's inability to supervise or protect them, regardless of whether the mother was at fault.
Issues
Whether substantial evidence supported the juvenile court's exercise of dependency jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1).
Whether the juvenile court erred in asserting jurisdiction over a family already subject to ongoing family court custody proceedings.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The juvenile court found that Mother was not credible regarding the events leading to the dependency proceedings”
“Section 300, subdivision (b)(1) “authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child.””
“We therefore conclude there was substantial evidence that, because of serious alienation issues engendered by Mother over the years, the girls had become incorrigible, disobedient, dishonest, and defiant”