L. A. Cnty. Dep't of Children & Family Servs. v. Gilberto G. (In re Ishani S.)

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In re ISHANI S., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GILBERTO G. Defendant and Appellant.

B323573

California Court of Appeals, Second District, Seventh Division

June 14, 2023

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County, No 18CCJP06798C Lisa A. Brackelmanns, Juvenile Court Referee. Conditionally affirmed with directions.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Senior Deputy County Counsel, for Plaintiff and Respondent.

SEGAL J.

INTRODUCTION

Gilberto G., the incarcerated father of eight-year-old Ishani S appeals from the juvenile court's jurisdiction findings and disposition orders, challenging the court's findings under Welfare and Institutions Code section 300, subdivisions (b) and (d),^[1] that Gilberto's sexual abuse of an 11-year-old girl and his resulting criminal convictions put Ishani at substantial risk of serious physical harm or sexual abuse. Gilberto argues that the judgment in a prior dependency case bars this proceeding under the doctrine of issue preclusion and that substantial evidence did not support the juvenile court's jurisdiction findings based on his criminal convictions. Gilberto also argues the juvenile court erred in denying him family reunification services under section 361.5.

We conclude that, because the juvenile court declared Ishani a dependent child of the court based on both her mother's conduct and on Gilberto's convictions, and because Gilberto has not challenged the jurisdiction findings based on the mother's conduct or shown the additional findings based on his convictions prejudice him, his appeal from the jurisdiction findings is nonjusticiable. We also conclude the court did not err in denying Gilberto reunification services.

Finally Gilberto contends the Los Angeles County Department of Children and Family Services did not comply with the requirements of the Indian Child Welfare Act (25 U.S.C § 1901 et seq.) (ICWA) and related California law. The Department concedes, and we agree, Gilberto is correct. Therefore, we conditionally affirm the juvenile court's findings and orders and direct the court to ensure the Department complies with ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Juvenile Court Sustains a Prior Petition and Terminates Jurisdiction with a Custody and Visitation Order

In 2016 the juvenile court sustained a petition by the Department under section 300, subdivision (b), alleging there was a substantial risk Ishani would suffer serious physical harm because her mother, Alma, had been arrested for domestic violence in connection with her relationship with Edwin G., her boyfriend at the time. The juvenile court initially placed Ishani with Gilberto, but eventually ordered Ishani to return to, and reside primarily with, Alma.

The Department later filed a supplemental petition under section 342 alleging Gilberto had sexually abused an 11-year-old girl and was arrested for lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)). The juvenile court sustained the supplemental petition. The court ultimately terminated its jurisdiction and entered a custody and visitation order granting Alma sole legal and physical custody of Ishani. When the court terminated its jurisdiction, Gilberto was incarcerated and awaiting trial on the criminal charges. The custody order granted Gilberto monthly monitored visits with Ishani and semiweekly phone calls.

B. The Juvenile Court Sustains a New Petition and Makes Disposition Orders

In 2020 the Department filed a new petition under section 300, subdivisions (a), (b), and (d). The Department alleged there was a substantial risk Ishani would suffer serious physical harm because Alma and her new boyfriend, Dandre, had a history of violent altercations in Ishani's presence, Alma "failed to enforce" a criminal protective order she had obtained after Dandre was convicted of inflicting corporal injury on her, and Alma allowed Dandre to live with her and Ishani. The Department also alleged under section 355.1, subdivision (d), that there was a rebuttable presumption Ishani was a dependent child of the court because Gilberto had (by then) been convicted of committing a lewd and lascivious act on a child under the age of 14 and committing an act of sexual penetration by force upon a child under the age of 14 (Pen. Code, §§ 288, subd. (a), 289, subd. (a)(1)(B)), and because Gilberto was a registered sex offender.

Gilberto filed a motion to dismiss the Department's allegations against him. He argued issue preclusion barred the Department's new petition because the allegations against him were "identical to those which were already litigated" in the Department's prior petition and there were no new facts or evidence supporting the allegations in the new petition.

At the combined jurisdiction and disposition hearing, the juvenile court denied Gilberto's motion, ruling issue preclusion did not bar the Department's petition because the allegations in the two petitions were not identical-in particular, Gilberto had been convicted of two sex crimes and was a registered sex offender. The court also ruled Gilberto's prior sexual abuse of a minor continued to place Ishani at risk. The juvenile court sustained the allegations against Alma and Gilberto, declared Ishani a dependent child of the court, removed her from Alma, and placed her with the Department. The court further ruled Gilberto was not entitled to reunification services under section 361.5, subdivision (e)(1), because he had been sentenced to prison for 20 years (12 years for sexual penetration of a minor, and eight years for lewd and lascivious acts with a minor) and was not eligible for parole until 2031-well past the reunification period authorized under section 361.5-and because the juvenile court had not ordered reunification services for Gilberto in the prior dependency proceeding. Gilberto timely appealed.

DISCUSSION

A. The Appeal from the Jurisdiction Findings Is Nonjusticiable

Gilberto contends the juvenile court erred in sustaining the Department's petition under section 300 based on his sexual abuse of a minor and resulting criminal convictions. The Department contends Gilberto's challenge to the court's jurisdiction findings is nonjusticiable because he does not contest the jurisdiction findings based on Alma's conduct.

When a petition under section 300 alleges multiple grounds for jurisdiction, "a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence." (In re Madison S. (2017) 15 Cal.App.5th 308, 328-329; see In re Travis C. (2017) 13 Cal.App.5th 1219, 1224; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) A child is a dependent child of the court "'if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent ....'" (In re Briana V. (2015) 236 Cal.App.4th 297, 308; see In re E.E. (2020) 49 Cal.App.5th 195, 212; In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) Therefore, "'an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence' or is unchallenged," if the ruling on the remaining findings would have no "practical, tangible impact on the parties' conduct or legal status." (In re L.O. (2021) 67 Cal.App.5th 227, 237; see Briana V., at p. 308; I.A., at p. 1492.)

Here, the juvenile court asserted jurisdiction over Ishani after sustaining the Department's allegations regarding the history of domestic violence between Alma and Dandre and Gilberto's criminal convictions. Because Gilberto does not challenge the juvenile court's jurisdiction findings based on Alma's conduct, reversing the juvenile court's jurisdiction findings against Gilberto would have no impact on the court's jurisdiction over Ishani. (See In re E.E., supra, 49 Cal.App.5th at p. 212 [because "substantial evidence supports the juvenile court's decision to find the [children] dependents based on mother's conduct," the reviewing court "need not review the evidentiary basis for the sustained allegations against father"]; In re I.A., supra, 201 Cal.App.4th. at pp. 1492-1493 [court would not review jurisdiction findings based on the father's conduct because the juvenile court would "still be entitled to assert jurisdiction over the minor on the basis of the unchallenged allegations" regarding the mother's conduct]; In re J.C. (2014) 233 Cal.App.4th 1, 3 [court would not review jurisdiction findings based on the father's conduct where the father did not contest the jurisdiction findings based on the mother's conduct and did not explain "any legal or practical consequences that might flow" from the finding against him].) Therefore, his appeal is nonjusticiable.

Gilberto contends we should review the court's jurisdiction findings against him because the juvenile court's decision to deny him reunification services "flowed directly" from those findings. As the Supreme Court recently explained in In re D.P. (2023) 14 Cal.5th 266, a court may review a jurisdiction finding where the finding "affects parental custody rights [citation] curtails a parent's contact with his or her child [citation], or 'has resulted in [disposition] orders which continue to adversely affect' a parent." (Id. at p. 278; see In re J.N. (2021) 62 Cal.App.5th 767, 774 [courts may...