B341556_20250827

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County, Pete R. Navarro, Commissioner. Affirmed.

Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.

* * * * * *

Defendant and appellant Jose A. (Father) appeals from the juvenile court’s orders of October 17, 2024, sustaining a subsequent juvenile petition under Welfare and Institutions Code section 342¹ and removing his children, Ethan N. (Ethan, born July 2019), Scarlett A. (Scarlett, born July 2020), and Avery N. (Avery, born Feb. 2023), from his custody. On appeal, Father contends that the juvenile court based its finding that he was unable to care for his children on his indigency, and that the removal order was unnecessary. We find that the juvenile court’s finding was based upon substantial evidence unrelated to Father’s financial condition, and that the removal order was supported by clear and convincing evidence. Therefore, we affirm.

BACKGROUND

I. The Family

Father and L.S. (Mother) are the parents of Ethan, Scarlett, and Avery. On or about April 26, 2024, Mother asked Father to move out of the family home. Father moved out in August 2024 and was staying with a friend when the juvenile court made the finding and issued the removal orders on appeal.

II. Exercise of Dependency Jurisdiction

On August 2, 2022, before Avery was born, the Los Angeles County Department of Children and Family Services (DCFS) sought and obtained an expedited removal order for Ethan and Scarlett. On August 4, 2022, DCFS filed a petition under section 300 on behalf of Ethan and Scarlett. DCFS alleged that the children were at substantial risk of physical abuse and harm for multiple reasons, including Mother’s physical abuse of Scarlett, Mother and Father’s history of engaging in violent altercations in the children’s presence, Mother and Father’s filthy and unsanitary home environment, Mother’s mental health issues, and both Mother and Father’s substance abuse problems.

The juvenile court held an initial hearing on August 5, 2022, and ordered Ethan and Scarlett to remain detained from parental custody. On November 22, 2022, the juvenile court adjudicated the section 300 petition filed on behalf of Ethan and Scarlett. The juvenile court sustained an amended version of the petition. Specifically, the juvenile court sustained counts under section 300, subdivisions (a) (serious physical harm) and (b)(1) (failure to protect) related to Mother and Father’s physical altercations; counts under section 300, subdivision (b)(1) related to the filthy and unsanitary home environment, Mother’s mental health issues, and Mother and Father’s substance abuse problems; and a count under section 300, subdivision (j) (abuse of sibling) related to Mother’s physical abuse of Scarlett.

On January 6, 2023, the juvenile court held a disposition hearing. The juvenile court declared Ethan and Scarlett to be dependents of the court under section 300, subdivisions (a), (b)(1), and (j) and removed them from Mother and Father’s custody. The juvenile court ordered family reunification services. The court ordered Mother to attend substance abuse treatment, individual counseling, and mental health counseling. The court ordered Father to attend domestic violence and parenting programs, and to submit to random drug tests. The court authorized Father to have unmonitored visitation after submitting three negative drug tests.

III. Avery’s Birth

In February 2023, Mother gave birth to Avery. DCFS received a referral and initiated an investigation. Initially, DCFS took no action. Then, in July 2023, DCFS filed a section 300 petition on behalf of Avery and sought detention. The juvenile court held an adjudication hearing on September 12, 2023. The juvenile court declared Avery to be a dependent of the court under section 300, subdivision (j), placed her in Mother and Father’s home under the supervision of DCFS, and ordered DCFS to provide family maintenance services.

IV. Family Maintenance Period²

Father achieved three negative drug tests and began his unmonitored visits on March 7, 2023. However, Father did not appear for three scheduled drug tests in March and April 2023. Although Father tested negative on May 2, 2023, he admitted to the social worker on May 8, 2023, that he had recently used controlled substances, including cocaine, alcohol, and nitrous oxide. Father reported that he had been feeling “depressed and overwhelmed” and was uncertain whether he could maintain his sobriety, though he denied having been under the influence while caring for Avery or visiting Ethan and Scarlett. Father agreed to on-demand drug testing.

On May 10, 2023, DCFS filed a petition under section 388 requesting that the juvenile court order Father’s visitation to revert back to monitored visitation. DCFS also filed a request under section 385 seeking the same relief pending a hearing on the section 388 petition, which the court granted on May 12, 2023.

Father graduated from parenting and domestic violence treatment in May 2023, notwithstanding attendance and motivation issues. Father continued to attend therapy and contemplated enrolling in a substance abuse treatment program but missed five recent drug tests. The court held a hearing on DCFS’s section 388 petition on July 12, 2023, and ordered Father to have only monitored visits with Ethan and Scarlett.

The juvenile court conducted a review hearing for Ethan and Scarlett on October 5, 2023. The court found that Mother and Father had made substantial progress and ordered Ethan and Scarlett returned to their home. The court ordered DCFS to provide family maintenance and preservation services.

V. The November 2023 Supplemental Petition

On November 8, 2023, DCFS sought a removal order authorizing detention of Ethan, Scarlett, and Avery, which the juvenile court granted on November 9, 2023. On November 14, 2023, DCFS filed a supplemental petition under section 387 on behalf of Ethan, Scarlett, and Avery, alleging that the prior dispositions had not been effective in protecting them. Among other things, DCFS alleged that Father failed to submit to scheduled drug tests in October and November 2023, and that Father had tested positive for substances including cocaine and marijuana. DCFS also alleged that Father failed to participate in family preservation services and individual counseling.

On November 15, 2023, the juvenile court ordered all three children to be detained from Mother and Father and scheduled a hearing on the section 387 petition. Then, on December 8, 2023, the juvenile court adjudicated the section 387 petition and sustained the petition as pleaded. The juvenile court ordered the children to be removed from parental custody and ordered family reunification services. Among other things, the court ordered Father to attend a full drug/alcohol program with aftercare, participate in individual counseling with a licensed therapist, and submit to random weekly drug tests.

Father re-enrolled in outpatient drug treatment in or about December 2023, where he was successful. He tested negative for controlled substances. During the review hearing on July 9, 2024, the juvenile court found that Mother and Father had made substantial progress and ordered Ethan, Scarlett, and Avery returned to their custody. The court ordered that the family continue to receive family maintenance services from DCFS.

VI. Father’s Housing Issues

Father moved out of the family home in August 2024, having separated from Mother for “personal reasons.” On August 29, 2024, the social worker conducted an unannounced visit to Mother’s house and determined that Mother had relapsed in her drug abuse. The social worker contacted Father to inform him that DCFS may seek a removal order from Mother and asked whether the children could reside with him, even temporarily. It is undisputed that Father had not relapsed.

Father indicated that he was staying with a friend and needed to consult with him. Father stated that he was not sure whether he would be willing to go to a hotel or family shelter with the children. Father was working but said he would contact the social worker “to see if he can make a plan to pick up the children.” Father indicated that he “would struggle to care for the children” because he is employed full-time but agreed “to inquire about making a plan.” Father agreed to place the children in DCFS custody if he could not make a plan for the children.

The social worker contacted Father again on August 30, 2024. Although Father stated that he did not have appropriate housing for the children, he withdrew his consent to place the children in DCFS custody. Father requested assistance with hotel vouchers and housing. DCFS does not have hotel vouchers, and Father did not qualify for assistance from the Department of Public Social Services. The social worker provided Father with referrals to shelters and housing programs. Initially, Father did not respond to the referrals or tell the social worker whether he was able to speak with his friends or call the shelters and housing programs. Then, Father admitted that as of September 4, 2024, “he had not spoken to anyone of the children’s removal from the parents.” Father had previously reported that he had no family in California who could care for the children.

VII. The September 2024 Supplemental and Subsequent Petitions

On September 5, 2024, DCFS filed another supplemental petition under section 387 on behalf of Ethan, Scarlett, and Avery, alleging that Mother had failed to comply with court-ordered services, failed to take her medications as prescribed, and failed to participate in substance abuse testing and treatment. DCFS also filed a subsequent petition under section 342, alleging that Father was “unable and unwilling” to provide the children with ongoing care and supervision and the basic necessities of life.

The juvenile court held a detention hearing on September 6, 2024. The court ordered the children detained from Mother and Father and scheduled a hearing on the petitions. Father’s counsel requested “hotel vouchers, motels vouchers, and some housing assistance for him.” The court denied the request. The court stated that it needed “a full report as to what is going on” but ordered DCFS to provide housing referrals for Father.

The social worker interviewed Father on September 13, 2024. Father reported that he was still staying with a friend in a single bedroom residence in Montebello. Father told the social worker that he did not want to jeopardize his friend’s housing situation by bringing his children because he did not know how the landlords or the other tenants would react. Father did not indicate whether he could care for the children, but he acknowledged that he does not have his own housing and expressed gratitude that his children could return to their prior caregiver. Father stated that “he does not mind [if] the children stay in placement as long as he is able to take them out.” Father also stated that “he does not want the children returned to him all at once because he hopes to prepare, save money for rent, and look for a better situation for the children.” Father “indicated that he will let [DCFS] know when he is able and ready to have the children returned to his care.”

On September 25, 2024, the social worker submitted a housing referral on Father’s behalf to the “Bringing Family’s [sic] Home program.” The social worker also sent Father additional housing referrals. However, Father did not contact any of the agencies identified by the social worker. Father said that his friend had told him about one option called “PATH” that he would contact first before moving on to the social worker’s referrals. Father also said that “he does not want to talk to his friends about having the children there as he does not want to make them uncomfortable by having to live scan or be involved with [DCFS].”

The juvenile court held an adjudication hearing on October 17, 2024. Father’s counsel asked the court to dismiss the allegation. In the alternative, Father’s counsel asked the court to find that Father was “unable,” not “unwilling,” to care for his children: “We are asking the court to dismiss the S-1 [sic] in its entirety. If the court is not inclined to do so, we’d ask that it conform to proof. He is not necessarily unwilling. He just does not have the appropriate housing . . . .” The juvenile court sustained the petitions. With respect to Father, the court struck the words “and unwilling” and sustained an amended version of the section 342 petition pursuant to section 300, subdivision (b)(1) as follows: “[Father] is unable . . . to provide the children with ongoing care and supervision, and basic necessities of life including, food, clothing, shelter and medical treatment. Such inability and unwillingness on the part of the father to provide the children with ongoing care and supervision, endangers the children’s physical health and safety and places the children at risk of serious physical harm, damage, and danger.” The juvenile court removed the children from parental custody and ordered family reunification services. Specifically, the juvenile court ordered as follows: “The court orders that the care, custody, control, and conduct of the children be placed under the supervision of D.C.F.S. for suitable placement with the maternal grandfather, a specific placement with him.” Father filed a timely appeal.

DISCUSSION

A. The Juvenile Court’s Jurisdictional Finding Is Based upon Substantial Evidence Unrelated to Father’s Financial Condition

Father contends that the juvenile court erred in sustaining the allegation in the section 342 subsequent petition because the finding that Father was unable to care for his children was based upon his indigency, in violation of section 300, subdivision (b)(2).³ We review the court’s jurisdictional and dispositional findings for substantial evidence. (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) Evidence is substantial if it is reasonable, credible, and of solid value. (In re S.A. (2010) 182 Cal.App.4th 1128, 1140.) We review the juvenile court’s ruling, not its reasoning, and may affirm if it was correct on any ground. (In re Natasha A. (1996) 42 Cal.App.4th 28, 38.)

We find that the juvenile court’s finding is based upon substantial evidence unrelated to Father’s financial condition. Simply, Father did not make sufficient efforts to find suitable housing for his children. He made no affirmative plans for his children’s care. He refused to speak with his friend to determine whether his children could stay at his current residence and eventually admitted that he did not want his children to do so. Father’s social worker made a housing referral to one program on his behalf, and provided Father with numerous housing referrals to shelters and housing programs on multiple occasions, but Father did not pursue any of these potential solutions. Father admitted to the social worker that he could not take the children and at one point agreed to DCFS custody provided he could “take them out.” At the hearing, Father’s counsel argued that he is “making attempts to find appropriate housing,” but Father did not provide any details or evidence concerning his own efforts.

We are not insensitive to Father’s financial situation and sympathize with his challenges in this regard. However, the juvenile court’s finding is supported by Father’s failure to take advantage of the services offered to him, not his financial condition, which is a permissible consideration. (See In re M.D. (2023) 93 Cal.App.5th 836, 853–854.) Accordingly, we find no error in the juvenile court sustaining the amended allegation in the section 342 petition.

B. The Juvenile Court’s Removal Order Is Supported by Clear and Convincing Evidence of Substantial Danger

Father also contends that the juvenile court erred in removing the children from his custody. Under section 361, subdivision (c)(1), a juvenile court may remove a child from a parent’s physical custody when it finds, by clear and convincing evidence, that there is substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child, or there would be if the child were returned home, and there are no reasonable means to protect the child without removal from the parent’s physical custody. (§ 361, subd. (c)(1).) A child need not have been actually harmed before DCFS and the juvenile court may intervene. (In re Eric B. (1987) 189 Cal.App.3d 996, 1002–1003.) “In determining whether a child may be safely maintained in the parent’s physical custody, the juvenile court may consider the parent’s past conduct and current circumstances, and the parent’s response to the conditions that gave rise to juvenile court intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332.)  The issue before us 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,” giving deference to the trial court’s evidentiary findings. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012.)

As discussed, Father made no plan for his children’s care, acknowledging that he could not care for them, and he did not make sufficient efforts to resolve his housing issues. Moreover, the juvenile court was aware of Father’s past conduct giving rise to the section 300 petitions. This constitutes clear and convincing evidence that there was a substantial danger to the children’s well-being.

Father argues that “[he] was willing to have the children reside in the maternal grandfather’s home without an order removing them from Father.” Father never made this request to the juvenile court. Father asked the court to dismiss the petition or place the children with both parents but have them live primarily with Mother (who resided with her father). Mother requested that the court place the children with both parents in the primary care and custody of Mother. In the alternative, Mother asked the court “for suitable placement with the maternal grandfather” with permission for Mother to reside in the home and have visitation. Accordingly, Father forfeited this issue by failing to raise it before the juvenile court. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Regardless, Father presented no evidence that he was able to provide financial support to the maternal grandfather so he could care for the children. Nor did Father present any evidence that the maternal grandfather would be able or willing to care for his children in the absence of financial support. Because the children were removed from the physical custody of their parents, the maternal grandfather was eligible for foster care funding. (§ 11401, subd. (b).)

Father relies on In re Isayah C. (2004) 118 Cal.App.4th 684, in which the Court of Appeal recognized that “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 for a limited period of time.” (Id. at p. 700.) The distinction in the instant case is that Father never delegated the day-to-day care of his children to the maternal grandfather or anyone else. We have considered Father’s remaining arguments and find none to be persuasive. As a practical matter, we see no alternative to the removal order under the circumstances. Therefore, we affirm the juvenile court’s removal order.

DISPOSITION

The juvenile court’s orders of October 17, 2024, are affirmed.

GOORVITCH, J. ⁴

We concur:

LUI, P. J.

CHAVEZ, J.