California Court of Appeal Apr 27, 2022 No. E077826Unpublished
Filed 4/27/22 In re S.C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.C., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E077826
Plaintiff and Respondent, (Super.Ct.No. RIJ2100411)
v. OPINION
J.C.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Harry (Skip) A. Staley,
Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, Teresa K.B. Beecham and Prabhath D.
Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
1
At a disposition hearing, the juvenile court ordered that S.C. remain removed
from the physical custody of her father, J.C. (Father). (Welf. & Inst. Code, § 361, subd.
(c)(1).)1 Father raises four issues on appeal. First, Father contends the jurisdictional
findings against him lack substantial evidence to support the elements of causation and
When a parent “requests evidence of the prima facie case [for detention], a
rehearing shall be held within three judicial days to consider evidence of the prima facie
case,” unless a witness is unavailable and then the rehearing can be held within five
days. (§ 321.) “In lieu of a requested rehearing, the court may set the matter for trial
within 10 days.” (Ibid.)
2. PROCEDURAL HISTORY
On July 20, 2021, the Department filed the original petition in the case, which
alleged, in part, that S.C. was at substantial risk of suffering physical harm because
Father “abuses controlled substances to include but is not limited to, methamphetamine
and excessive use of alcohol, while providing care to the child, [S.C.] On 06/23/2021,
he father [sic] refused to submit to an oral drug test and he failed to appear for an on-
demand test scheduled for 06/24/2021.” The petition was drafted by a Department
employee; it was not drafted by an attorney.
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On July 21, 2021, during the detention hearing, Father’s attorney said, “When I
look at the petition, Your Honor, I’m not sure why county counsel is not writing the
petition.” In other words, Father’s attorney asserted the Department’s petition should
have been drafted by County Counsel. Father’s attorney went on to explain why he
believed the detention report was deficient. Father’s attorney then returned to the
petition asserting, “The petition itself is very conclusionary. There is no reason to
detain [S.C.] from [Father’s] care. . . . [¶] So it’s just frustrating. If the Court is
inclined to detain, I’m going to ask for a detention re hearing [sic], have the worker
testify about her report.” County Counsel argued that the petition and the detention
report were sufficient.
The juvenile court explained that a rehearing would have to occur within one to
five days. The court said that it would be inclined to return S.C. to Father if Father had
two negative drug tests—one test on the day of the detention hearing and one random
test. The juvenile court said, “I would like to have some test results for your client. If
we do a detention re hearing [sic], we will come back in [a] few days. We will not have
those results, so I don’t know what your thoughts are. We can do maybe a 10-day juris
hearing. But I do recognize your client’s concerns and your arguments today.”
Father’s attorney asked, “What would be the 10-day date? That way the child
can go on the trip.” S.C. was planning to take a trip to Lake Havasu with Aunt. The
court said the 10-day date would be August 2 or 3, which would provide time “to get
testing.” The court set the 10-day jurisdiction hearing for August 2.
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2. ANALYSIS
Father asserts the petition was facially deficient because it failed to allege a risk
of serious physical harm. The Department asserts Father forfeited this issue both by (1)
effectively withdrawing any challenge to the petition by accepting a 10-day jurisdiction
hearing in place of a detention rehearing; and (2) by failing to file a written demurrer in
the juvenile court.
“ ‘[E]ven though a complaint is defective in some particular [manner], if the case
is tried on the theory that it is sufficient and evidence accordingly is received without
objection, the unsuccessful party cannot later effectively contest the sufficiency of the
pleading.’ ” (In re Athena P. (2002) 103 Cal.App.4th 617, 627.)
In the juvenile court, Father’s attorney asserted the petition was conclusory and
indicated he wanted a detention rehearing in order to “have the worker testify about her
report.” But then counsel agreed to a trial/jurisdiction hearing on the petition, scheduled
10 days out, so that S.C. could attend a trip with Aunt and Father could submit results
from at least one drug test. Father’s attorney’s allegations in the juvenile court
regarding a deficient petition did not preserve the issue for appeal because Father agreed
to proceed to trial on the petition.
Father asserts he may demurrer to the petition for the first time on appeal.
“There is a split of authority on whether a parent waives the right to challenge the
sufficiency of the allegations in a dependency petition on appeal after failing to raise the
issue by demurrer or other procedural mechanism in the juvenile court.” (In re James
C. (2002) 104 Cal.App.4th 470, 480; see also In re David. H. (2008) 165 Cal.App.4th
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1626, 1637.) Father fails to acknowledge there is a split of authority on the issue and
thus fails to provide any legal analysis of the split of authority.
Further, Father fails to provide any legal analysis of how he is raising this issue
for the first time on appeal when he raised the issue in the trial court and nevertheless
agreed to proceed to trial. Due to Father’s failure to provide reasoned legal analyses of
these issues on appeal, we find Father’s contention unpersuasive.
C. REMOVAL ORDER
1. PROCEDURAL HISTORY
Toward the end of the disposition hearing, the juvenile court said, “Reasonable
efforts were made to prevent or eliminate the need for removal of the children from the
home of the parents. [¶] There is clear and convincing evidence of circumstances set
out in WIC section 361 regarding both parents, and that’s (c)(1). Physical custody of
[V.P.] is removed from [Mother]. And the physical custody of [S.C.] is removed from
both parents, [Mother] and [Father].”
2. SECTION 361
“A dependent child shall 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 . . . . [¶] (1) There 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.” (§ 361, subd. (c)(1).)
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Further, “[t]he court shall make a determination as to whether reasonable efforts
were made to prevent or to eliminate the need for removal of the minor from his or her
home” and “[t]he court shall state the facts on which the decision to remove the minor is
based.” (§ 361, subd. (e).)
3. FORFEITURE
Father asserts the juvenile court erred by failing to state the facts supporting the
order removing S.C. from his custody. The Department contends Father forfeited this
issue by failing to object in the juvenile court. We agree. The juvenile court’s failure to
state the facts supporting its finding is not preserved for appeal unless an objection is
raised in the juvenile court. (Sander v. Superior Court (2018) 26 Cal.App.5th 651, 670
[“ ‘It is axiomatic that arguments not raised in the trial court are forfeited on appeal’ ”].)
In People v. Tillman (2000) 22 Cal.4th 300, 302, the Supreme Court wrote, “The
restitution fine under [Penal Code] section 1202.4 is mandatory unless the sentencing
court, in the words of the statute, ‘finds compelling and extraordinary reasons for not
doing so and states those reasons on the record.’ ” The high court explained, “At times,
sentencing courts have failed to discharge the duty imposed by these statutes, omitting
the fines from judgments of conviction without making the required finding on the
record. In several such cases, the People have sought to have the omission supplied
while the case was on appeal, asking the Court of Appeal to amend the trial court’s
judgment to add the fines.” (Ibid.)
16
The Supreme Court reasoned, “ ‘Although the court is required to impose
sentence in a lawful manner, counsel is charged with understanding, advocating, and
clarifying permissible sentencing choices at the hearing. Routine defects in the court’s
statement of reasons are easily prevented and corrected if called to the court’s
attention.’ ” (People v. Tillman, supra, 22 Cal.4th at p. 303.) The high court concluded
that the People’s lack of objection at the sentencing hearing to the trial court’s failure
“to state on the record its reasons for not imposing the restitution fines” meant the
People could not “obtain[] the relief they seek on appeal.” (Id. at pp. 302-303.)
Father did not object in the juvenile court to the court’s failure to state the facts
supporting its findings. Accordingly, the issue has been forfeited.
4. HARMLESS ERROR
Nevertheless, to the extent one would reach the merits of the issue, the error is
harmless. The juvenile court erred by failing to state the facts supporting its decision to
remove S.C. from Father’s physical custody. (In re L.O. (2021) 67 Cal.App.5th 227,
246-247; In re D.P. (2020) 44 Cal.App.5th 1058, 1067.) We examine whether it is
reasonably probable that, if the juvenile court had stated the facts supporting its
decision, then a decision more favorable to Father would have been made. (L.O., at p.
247.)
At the detention hearing on July 21, 2021, the juvenile court said, “And I will
just indicate, especially as to father and [S.C.], I’m interested in those drug test results.
Because my consideration is to potentially return [S.C.] to your care if they’re
17
negative.” The juvenile court said it wanted one drug test from the day of the detention
hearing and a random drug test.
Father failed to drug test on June 24, 2021; July 20, 2021; July 26, 2021; and
August 13, 2021. It appears Father took a drug test on September 22, 2021; however,
the results of that test are not in the record.
At the disposition hearing on September 29, 2021, Father’s attorney argued in
favor of S.C. being placed with Father on a plan of family maintenance. Father’s
attorney then argued, “If the Court is not inclined to place the child with [Father] today,
we ask upon [Father’s] submission of two clean [urinalysis] tests, that the child be
placed back in his care and custody. We have been waiting a couple months to have a
resolution of this, and that is my request.”
The juvenile court explicitly said at the detention hearing that it wanted two
negative drug tests from Father prior to placing S.C. in Father’s care. At the disposition
hearing, Father’s attorney seemingly recalled that requirement when he modified his
request by asking for S.C. to be placed with Father after Father submitted two negative
drug tests. Thus, one can reasonably infer that if the juvenile court had stated its
reasons, it would have said something to the effect of “I told Father he needed to
provide two negative drug tests. Father had three months to provide two negative drug
tests. Father has not provided two negative drug tests. The Department made
reasonable efforts by repeatedly referring Father for drug tests. Therefore, I find . . . .”
At which point, the juvenile court would have made the same findings. As a result, if
the juvenile court had stated the facts supporting its removal decision, then it is not
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reasonably probable that a result more favorable to Father would have occurred. In
sum, the error was harmless.
Father asserts “this Court should not imply findings” and “requests that this
Court should reject the Department’s invitation to bypass what the Legislature has
determined to be an absolute necessary to have express findings made by the juvenile
court before a parent loses custody of his or her child.” Father asserts the juvenile court
should have discussed alternatives to removing S.C. from the home, which the court
could not have done because “the Department’s reports contain no such discussion
excepts [sic] its efforts to force [F]ather to drug test and enroll in programs even before
the jurisdictional and dispositional hearing.”
The Department initially visited Father on June 23, 2021. The Department
offered Father a saliva drug test, which he declined. The Department referred Father for
a urine drug test, and he failed to appear for it. The social worker “recommended
counseling services and mental health services” and referred Father to substance abuse
treatment. Father did not participate in any of the services offered. On July 6, 2021, the
Department received a second referral in the case indicating that Father abused
methamphetamine in S.C.’s presence, that he hits S.C., and that he physically abused his
fiancée. On July 16, 2021, the Department removed S.C. from Father’s physical
custody.
The foregoing reflects the Department tried leaving S.C. in Father’s custody, but
Father did not drug test, he did not participate in services, and the Department learned
that Father was physically violent. Given that the Department tried leaving S.C. in
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Father’s custody, we are not persuaded that the juvenile court failed to consider
alternatives to removal.
Further, to the extent Father is asserting that the juvenile court should have made
a different order, e.g., Father moving out of the home, rather than S.C. moving out of
the home (§ 361, subd. (c)(1)(A)), that is the precise reason that Father needed to object
in the juvenile court. Father does not explain on appeal what viable alternatives to
removal the juvenile court missed; he simply asserts the juvenile court should have
discussed something more. Because Father fails to explain why it is reasonably
probable an order more favorable to Father would have been entered absent the error,
we find Father’s argument to be unpersuasive.
In an alternative argument, Father contends, “As an issue of first impression, this
Court should hold that the juvenile court’s adopting of the recommendation to remove a
child from a parent, without making the express findings required under section 361, as
happened here, results in the violation of the separation of powers doctrine as there is no
judiciary rendering mandated findings before a parent’s fundamental rights to custody
are severed.”
“ ‘[L]egal issues arise out of facts, and a party cannot ignore the facts in order to
raise an academic legal argument.’ ” (Bains v. Department of Industrial Relations
(2016) 244 Cal.App.4th 1120, 1130.) The juvenile court made the required findings.
The court said, “There is clear and convincing evidence of circumstances set out in WIC
section 361 regarding both parents, and that’s (c)(1).” That statement was the necessary
finding under section 361, subdivision (c). The court also said, “Reasonable efforts
20
were made to prevent or eliminate the need for removal of the children from the home
of the parents.” That statement was the required finding under section 361, subdivision
(e).
What the court failed to do was state the facts supporting its findings. (§ 361,
subd. (e).) Because the court made the required findings, we do not address the
argument raised by Father which is premised upon “no judiciary rendering mandated
findings.” (Bains, supra, 244 Cal.App.4th at p. 1130.)
D. APPEAL BY A NON-OFFENDING PARENT
Father asserts that he is “arguably a non-offending parent.” With that premise,
Father requests this court decide, “as a matter of first impression,” whether a non-
offending parent may appeal from the disposition order.
As noted ante, “ ‘legal issues arise out of facts, and a party cannot ignore the
facts in order to raise an academic legal argument.’ ” (Bains, supra, 244 Cal.App.4th at
p. 1130.) Father is an offending parent. Accordingly, we do not address the merits of
this contention, which is premised upon the hypothetical scenario of Father being a non-
offending parent.
The Department asserts “[t]he appeal should be dismissed” because Mother has
not appealed the jurisdictional findings made against her, and this court cannot reverse
as long as there are jurisdictional findings against Mother. We decline to dismiss the
appeal.
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DISPOSITION
The jurisdictional findings concerning S.C. being at risk of physical harm (§ 300,
subd. (b)(1)) due to not attending school (allegation b-5); Father having a prior
conviction for attempted robbery (allegation b-7); and Father having a prior dependency
case in Los Angeles County (allegation b-8) are reversed. In all other respects, the
orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
22
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the juvenile court's jurisdictional findings regarding the father's substance abuse and the removal order, while reversing the findings related to educational neglect, criminal history, and the prior dependency case due to the Department's concession. The court held that the father forfeited his challenge to the sufficiency of the petition and the court's failure to state facts for the removal order by failing to object in the trial court.
Issues
Whether substantial evidence supports the jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b)(1).
Whether the juvenile court's failure to state facts supporting the removal order constitutes reversible error.
Whether the father forfeited his challenge to the facial sufficiency of the dependency petition.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“The Department concedes that substantial evidence does not support the findings that S.C. is at substantial risk of serious physical harm due to (1) not attending school; (2) Father having a prior conviction for attempted robbery; and (3) Father having a prior dependency case in Los Angeles County.”
“The juvenile court’s failure to state the facts supporting its finding is not preserved for appeal unless an objection is raised in the juvenile court.”
“The record reflects that Father has angry outbursts when under the influence of methamphetamine; Father is physically violent; Father is unable to control his anger; and Father drives with S.C. while he is intoxicated.”