L. A. Cnty. Dep't of Children & Family Servs. v. John B. (In re K.H.)

In re K.H., et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOHN B., et al. Defendants and Appellants.

B309615

California Court of Appeals, Second District, First Division

August 20, 2021

NOT TO BE PUBLISHED

APPEALS from orders of the Superior Court of Los Angeles County, No. 20CCJP03591 Sabina A. Helton, Judge. Reversed in part, affirmed in part, dismissed in part, and remanded with instructions.

Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant John. B.

Pamela Deavours, under appointment by the Court of Appeal, for Defendant and Appellant Andrew H.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.

CRANDALL, J. ^[*]

Following a combined jurisdictional and dispositional hearing that demonstrated sexual abuse of six-year-old N.W. by her 12-year-old half-brother K.H., the juvenile court ordered K.H. removed from his mother, Jessica H. (Mother), and denied K.H.'s placement with his noncustodial father, Andrew H. The court ordered N.W. removed from her noncustodial father John B., and placed with Mother under the supervision of the Department of Children and Family Services (Department).

In addition to the sexual abuse allegations, the court found true against both fathers substance abuse, domestic violence mental health, and other allegations, which additionally placed the children at serious risk of physical harm.

Although Mother is not contesting the jurisdictional or dispositional orders in this appeal, the noncustodial fathers (both of whom live in Alabama and have had very limited contact with their children) argue that insufficient evidence supported the juvenile court's jurisdictional findings and related dispositional orders.

While the appeal was pending, the juvenile court terminated the order placing K.H. in foster care and ordered him placed with Andrew.^[1] Accordingly, we dismiss Andrew's appeal of the court's dispositional order as moot.

As to the other orders, we conclude that substantial evidence supported some but not all of the specific jurisdictional findings as to the fathers. However, we conclude that clear and convincing evidence supported the court's dispositional order removing N.W. from John.

Andrew also argues the court erred in issuing dispositional orders without first making findings required under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and its corresponding provisions under California law (see Welf. & Inst. Code, § 224 et seq.). The Department agrees that ICWA compliance is lacking.

Accordingly, we conditionally affirm the dispositional order as to John and remand the matter to the juvenile court for the limited purpose of ICWA compliance.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Welfare and Institutions Code^[2] Section 300 Petition

In 2020, K.H. and N.W. lived with Mother in Los Angeles California. The children's fathers lived in Alabama. Andrew last saw K.H. when K.H. was three years old, and had not had contact with K.H. or Mother until these dependency proceedings. John never met N.W. in person. He and Mother resumed contact in 2019, and by August 2020, he had spoken with N.W. by video chat on two occasions. There are no custody orders relating to either child.^[3]

In May and June 2020, the Department received referrals reporting that K.H. had sexually abused N.W. for an unknown period of time. K.H. was observed engaging in sexual intercourse with N.W.

On July 7, 2020, the Department filed a petition pursuant to section 300, subdivisions (b) and (d). The Department alleged that Mother inadequately supervised the children, resulting in K.H.'s sexual abuse of N.W. (counts b-1, d-1), and was incapable of providing regular care for the children due to her emotional and mental issues (count b-2) and her marijuana use (count b-3).^[4]

B. The Children's Mental Health and Behavioral Issues

K.H. was detained and placed in an adolescent care facility. He was diagnosed with intermittent explosive disorder; post-traumatic stress disorder (PTSD); oppositional defiant disorder; major depressive disorder, single episode, mild; and delusional disorder. According to Mother, K.H. also suffers from bipolar disorder, dissociative identity disorder (DID), and attention deficit hyperactivity disorder (ADHD). He previously was prescribed psychotropic medication and, in 2013, was placed in a psychotropic hospital. K.H. refused to take the medication after 2015. K.H. has stolen money from Mother, run away, verbally and physically abused N.W., and visited pornographic websites. Mother believes K.H. suffers from PTSD because he was abused by John, maternal great uncles, and cousins in Alabama.

N.W. has PTSD, DID, and suffers from tantrums, screaming, and separation anxiety. According to Mother, N.W. suffered trauma in utero when John attempted to kill Mother and was also abused.

C. The Fathers

1. Andrew H.

Mother and Andrew met in Alabama. They began dating when he was 18 years old and married in 2007, when he was 23. At the time of Andrew's interview with the Department, he was 36 years old. Mother and Andrew are still married.

Andrew began taking opiate pills and smoking marijuana when he was 15 years old. Mother reported that she and John sold LSD to Andrew. Maternal grandfather used to work with Andrew and reported that “[b]etween the drugs and alcohol, [Andrew] couldn't control himself.... He used anything that would get him high.” Andrew denied any current drug or alcohol abuse. He stopped taking pills five years ago and stopped smoking marijuana three to six months prior to the Department's interview because he wanted to “get[ ] [his] life together.”

According to Mother, she and Andrew were together for 10 years, and he was violent towards her the entire time. Andrew stated that when they were together, he and Mother fought once or twice a week, during which time Mother would slap him and throw things at him. He admitted that K.H. was sometimes present during these altercations, but denied that K.H. was physically injured as a result. Andrew admitted that he pushed Mother away and to an incident of “tussl[ing]” with her to get his keys from her purse.

Mother reported that during her pregnancy in or about 2011, she obtained a permanent restraining order against Andrew.^[5] When they were no longer living together in 2012 or 2013, Andrew was served with the restraining order. By then, he was “unable to do anything about it.”

When he was 22 or 23 years old, Andrew attempted to commit suicide on four occasions and, as a result, was involuntarily committed to a state mental hospital twice. Andrew denied any current suicidal thoughts, and observed, “I can't do that to [K.H.].”

According to Mother, Andrew threatened to kill himself frequently. He was diagnosed with borderline personality disorder and intermittent explosive rage disorder and was prescribed medication. Andrew did not disclose either of those disorders and stated he was diagnosed with depression and ADHD.

Andrew reported that he wanted to reunify with K.H., was willing to participate in anger management or domestic violence classes in order to do so, and that Mother had kept his family from seeing K.H. Prior to receiving notice of the dependency proceedings, he did not know where K.H. was. By November 19, 2020, Andrew completed 16 hours of parenting classes.

The juvenile court found Andrew H. to be the presumed father of K.H.

2. John B.

Mother reported that she met John when she was 16 years old and he was 23 years old. They sold LSD together. John admitted that he started abusing alcohol when he was a teenager and using several drugs. He used substances “to mentally hide, ” and last used cocaine approximately 10 years ago. At the time of the interview, he was 46 years old.

In 2011, John caused a car with Mother and K.H. in it to go off the road by pulling the wheel of the car. John acknowledged that he had been drinking and claims that he blacked out. Mother reported John tried to kill her, and that after the accident, he began to hit her.^[6] John was incarcerated for 14 months.

The couple resumed their relationship in 2012 or 2013, and Mother became pregnant with N.W. When Mother was six months pregnant, John bit her on her legs, strangled her, and beat her. John was sentenced to three years in prison, but served only part of the sentence. He was placed on probation and in an alcohol abuse program. Mother also reported that, when she was under the influence of substances, John would rape her while K.H. slept in another room.

K.H. told Mother that John beat him when he was approximately five years old.

John reported one occasion when he came home from work drunk and high on pills, gave K.H. a bath, and blacked out. When John woke up, K.H. was on the floor next to him and had a large purple bruise on his face. As a result, a child welfare case was opened, and John participated in anger management and “compassion training.”

In 2017, John's 19-year-old son committed suicide. Mother believed this caused John to relapse into substance abuse. In January 2017, John was arrested for driving with an expired license and driving under the influence. He was “t-boned” by another car. He sought substance abuse treatment and reported to the Department investigator that he had been sober for over four years. John had convictions for public intoxication and possession of marijuana.

John acknowledged he had episodes of depression and anxiety in the past. He continued to work through “issues” and that a psychological evaluation might be...