In re N.B. CA4/2

• Court: California Court of Appeal
• Decided: January 8, 2025
• Docket: E083468
• Status: Unpublished

Opinion

Filed 1/8/25 In re N.B. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 N.B. et al., Persons Coming Under the Juvenile Court Law. E083468

(Super.Ct.Nos. J299261, J299263 SAN BERNARDINO COUNTY & J299264) CHILDREN AND FAMILY SERVICES, OPINION Plaintiff and Respondent,

v.

J.B.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

Mansi Thakkar, under appointment by the Court of Appeal, for Defendant and

Appellant.

Tom Bunton, County Counsel, and Kristina M. Robb, Deputy County Counsel, for

Plaintiff and Respondent.

1 The juvenile court found true the allegations pertaining to defendant and appellant

J.B. (father); removed Ja.B. (born January 2010) and N.B. (born December 2010)

(collectively minors);1 and bypassed reunification services to father pursuant to Welfare

and Institutions Code section 361.5, subdivisions (b)(12) (parent convicted of a violent

felony) and (e)(1) (parent incarcerated and services would be detrimental to the minor).2

On appeal, father contends insufficient evidence supports the jurisdictional finding

against him and, therefore, we must reverse the court’s order bypassing his reunification

services. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 2, 2023, personnel from plaintiff and respondent, San Bernardino

County Children and Family Services (the department), received an immediate response

referral alleging caregiver absence, incapacity, and general neglect. The reporting party

indicated that mother had been arrested for grand theft and contributing to the

delinquency of a minor while participating in a large-scale robbery ring involving her

four children, other children, and gang members.

1 J.B. is the father of minors. The proceedings below also involved minors K.K. and A.C., who had different fathers. The latter minors, their fathers, and mother are not parties to this appeal.

2 All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

2 Ja.B. admitted to the social worker that mother had been stealing clothing while

she and her sister, N.B., were present in the store, but she denied participating in any theft

herself. She said that father was currently incarcerated. Ja.B. reported using marijuana

twice. She indicated that mother had been arrested in the past.

N.B. admitted placing one item in her clothing but denied mother told her to do so.

N.B. denied being involved in any other thefts with mother at other locations. K.K.

denied any knowledge of mother stealing from the store, but admitted she was aware

mother had gone to jail twice for stealing.

A.C. admitted being in the store while mother shoplifted. She said mother gave

her several items with which to leave the store. A.C. said, “ ‘I wi[sh] my mother would

stop stealing, she steals because she doesn’t []want to use her own money.’ ” A.C.

admitted Ja.B. and N.B. have gone out with mother and returned with stolen items.

The maternal grandmother said that Ja.B and N.B. lived with her for 11 years. She

returned them to mother in hopes that mother could provide appropriately for them.

Mother had 10 prior department referrals, which were all deemed unfounded or

inconclusive. She had several prior arrests for petty theft, grand theft, retail theft, and

willful cruelty to a child between 2016 and 2023. Father had criminal convictions for

robbery in 2012, illegal possession of an assault weapon in 2014, and attempted murder

in 2022.

3 The department filed juvenile dependency petitions alleging mother had an

unstable lifestyle and lacked parenting skills (b-1), mother included minors in criminal

activity (b-2), father failed to provide a safe living environment (b-3), that mother left

minors without support while she was incarcerated (g-4), and that father left Ja.B. without

support while he was incarcerated (g-5).3

Father did not appear at the hearings on December 6 and 12, 2023. Father’s

counsel noted that father was in prison. The court detained minors on December 12,

2023.

In the jurisdiction and disposition report filed January 22, 2024, the social worker

recommended the court find the g-4 allegation untrue and the remaining allegations true.

The social worker recommended minors be removed from parents, mother receive

reunification services, and reunification services be denied father pursuant to

section 361.5, subdivisions (b)(12) and (e)(1). Father “reported he does not want to be

present for court ‘because it’s a process’ that he has to go through.”

The social worker received a copy of the crime report for one of the incidents on

December 2, 2023: “According to the report the mother ‘stole several items by

concealing them on her person and walking out of the business. [Mother’s] 12 year old

daughter concealed several items on her person and left without paying as well.’ ”

“ ‘[Mother] was seen on video at several other locations with her children stealing items.

[Mother] is using her children to steal items and the same methods of stealing occur at

3 The g-5 allegation was alleged pertaining to Ja.B. but not N.B.

4 other locations.’ ” Mother “ ‘is conspiring with her children to commit theft of retail

stores. Not only is she conspiring, but she is contributing to the delinquency of her own

children, by allowing and encouraging them to steal items from retail stores.’ ”

N.B. reported that “they went in the store and her mom put something [in] her own

shirt and that the mother put knives in her purse. The child reported that she put baby

powder in her pants.” Mother denied all the allegations.

Father was most recently admitted to prison on July 27, 2022; his parole eligibility

date was listed as January 2034. Mother reported that father was involved with minors

until they were about two years old; father was then incarcerated for five years. When he

got out of prison, “he then went right back in.” She reported that he has never been there

for them physically or mentally or provided support. When father calls, she tries to get

minors to talk to him, but sometimes they do not want to be bothered. Father reported he

had a good relationship with minors.

Ja.B. reported that father is in jail; “the last time she saw [him] was when he got

out and she went with him for a while.” She said he called her often. N.B. said, “she last

saw [] father when she was eight [] or when she was a baby.” She said, “she does not

really have a good relationship with the father.”

Father informed the social worker that he would like minors to be placed with his

sister. Mother suggested minors be placed with the maternal grandmother or the maternal

aunt.

5 The department initially placed minors with a great-aunt.4 Subsequently, the

great-aunt texted the social worker that she intended to “ ‘surrender’ ” minors to the

department: Minors “ ‘have become disruptive to the home and I have concerns for the

safety of my own children. It appears that they may have gang ties as I’ve heard their

conversations on the phone with their friends and [Ja.B.] last night was overheard saying

how she wants to fight . . . .’ ” They “ ‘are very angry and said they want to be removed

from my home.’ ” “ ‘They hate me and don’t want to be here and would rather be with’ ”

the department.

A maternal aunt, who had completed an assessment, was willing to take in minors.

The court placed minors with the maternal aunt on January 8, 2024.

On December 15, 2023, the court issued an order directing the warden to permit

father’s presence at the next hearing. On January 23, 2024, after being advised of his

right to appear, father waived his right to be physically present but indicated he wished to

participate by videoconference or telephone.

In father’s statement of parentage, father indicated he had helped minors with their

homework and purchased them clothes and shoes. He asserted that minors had spent

weekdays and weekends with his family and wished to be housed with his family.

At the jurisdiction and disposition hearing on January 25, 2024, the court

dismissed the g-4 allegation against mother. Father’s counsel stated, “that although

Father was on hold for, approximately, 40 minutes, he did waive any further appearance

4 The report does not specify whether this was a maternal or paternal great-aunt.

6 on this matter, and he authorized me to appear on his behalf.” Father’s counsel submitted

on the allegations.

Father’s counsel objected to the recommendation to deny father reunification

services: “He indicated to me that he does have an ongoing relationship with his

children; that he had regular and consistent telephone calls. He is asking that he be

allowed to resume telephone calls with his children, and . . . . Father has also

requested that Paternal Grandmother . . . be assessed for placement, as well as the

paternal aunt . . . , and I have their phone numbers and can provide them to County

Counsel and the Court officer.” The court responded, “They will also need to contact the

County as well.”

The juvenile court found the remaining allegations true. The department noted

that “father is currently in prison for attempted homicide. I think the conviction was in

2022, and I think he is going to be incarcerated for at least ten years.” The court ruled

father “will qualify under two bypass provisions, and the Court will find that those

provisions do apply, and that it would not be in the children’s best interest to provide

services to him.”

7 II. DISCUSSION

Father contends insufficient evidence supports the jurisdictional finding as to him

and, therefore, we should reverse the court’s order bypassing his reunification services.

We affirm.

A. Justiciability

“ ‘[A] jurisdictional finding good against one parent is good against both. More

accurately, the minor is a dependent if the actions of either parent bring [him] within one

of the statutory definitions of a dependent. [Citations.]’ ” (In re X.S. (2010) 190

Cal.App.4th 1154, 1161.) “As long as there is one unassailable jurisdictional finding, it

is immaterial that another might be inappropriate.” (In re Ashley B. (2011) 202

Cal.App.4th 968, 979 (Ashley B.); accord, In re M.R. (2017) 7 Cal.App.5th 886, 896.)

“ ‘For this reason, an appellate court may decline to address the evidentiary support for

any remaining jurisdictional findings . . . .’ [Citation.]” (In re Briana V. (2015) 236

Cal.App.4th 297, 308 (Briana V.); accord, In re L.O. (2021) 67 Cal.App.5th 227, 237

(L.O.).)

As here, where father does not challenge the jurisdictional findings as to mother,

“ ‘any decision we might render on the allegation[] involving Father will not result in a

reversal of the court’s order asserting jurisdiction. The juvenile court will still be entitled

to assert jurisdiction over the minor on the basis of the unchallenged allegations. Further,

the court will still be permitted to exercise personal jurisdiction over Father and

adjudicate his parental rights, if any, since that jurisdiction is derivative of the court’s

8 jurisdiction over the minor and is unrelated to Father’s role in creating the conditions

justifying the court’s assertion of dependency jurisdiction.’ ” (Briana V., supra, 236

Cal.App.4th at p. 308.)5

“In fact, there need not be a jurisdictional finding as to the particular parent upon

whom the court imposes a dispositional order.” (Briana V., supra, 236 Cal.App.4th at

p. 311; accord, In re S.F. (2023) 91 Cal.App.5th 696, 719-720 (S.F.); In re I.A. (2011)

201 Cal.App.4th 1484, 1492 (I.A.) [“A jurisdictional finding involving the conduct of a

particular parent is not necessary for the court to enter orders binding on that parent, once

dependency jurisdiction has been established.”].)

“However, we generally will exercise our discretion and reach the merits of a

challenge to any jurisdictional finding when the finding (1) serves as the basis for

dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial

to the appellant or could potentially impact the current or future dependency proceedings

[citations]; or (3) ‘could have other consequences for [the appellant], beyond

jurisdiction.’ ” (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; accord, In re

Rashad D. (2021) 63 Cal.App.5th 156, 164; contra, I.A., supra, 201 Cal.App.4th at

5 Father did not raise the justiciability issue in his opening brief, i.e., he did not address whether we had or should exercise any discretion to entertain his argument regarding the jurisdictional finding, considering that he does not challenge the jurisdictional findings against mother, until he filed his reply brief. “ ‘ “[I]t is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party.” ’ ” (People v. Silveria and Travis (2020) 10 Cal.5th 195, 255.) Similarly, father did not raise the issue of whether there was a basis for removal of the children until filing his reply brief. We hold that defendant forfeited the latter issue by failing to raise it in his opening brief.

9 p. 1495 [dismissing appeal and finding that “[i]n any future dependency proceeding, a

finding of jurisdiction must be based on current conditions”]; L.O., supra, 67 Cal.App.5th

at p. 237.)

Here, father does not challenge the jurisdictional findings against mother. Thus,

even if we found that insufficient evidence supported the court’s order sustaining the

allegations against father, the juvenile court would still have had jurisdiction over minors

and father.

Moreover, the court would still have had jurisdiction to enter the dispositional

order bypassing father’s reunification services. Furthermore, as discussed post, it is not

reasonably probable that even absent the jurisdictional finding against father, the juvenile

court would have granted him reunification services. Father fails to identify any other

potential basis for us to exercise our discretion to address his claim, such as any

prejudicial effect or any consequences beyond jurisdiction. Therefore, we decline to

exercise our discretion to review whether sufficient evidence supported the court’s

finding sustaining the allegation against father.

B. Sufficiency of the Evidence

Even assuming we exercised our discretion to review the court’s finding

sustaining the allegation against father, we would hold that sufficient evidence supported

it.

“ ‘ “In reviewing a challenge to the sufficiency of the evidence supporting the

jurisdictional findings and disposition, we determine if substantial evidence, contradicted

10 or uncontradicted, supports them. ‘In making this determination, we draw all reasonable

inferences from the evidence to support the findings and orders of the dependency court;

we review the record in the light most favorable to the court’s determinations; and we

note that issues of fact and credibility are the province of the trial court.’ [Citation.] ‘We

do not reweigh the evidence or exercise independent judgment, but merely determine if

there are sufficient facts to support the findings of the trial court.’ ” ’ [Citations.]” (L.O.,

supra, 67 Cal.App.5th at p. 238.)

Here, father had criminal convictions for robbery in 2012, illegal possession of an

assault weapon in 2014, and attempted murder in 2022. Mother reported that father was

involved with minors, who were each about 13 years of age at the time the court detained

them, only until they were about two years old; father was then incarcerated for five

years. When he got out of prison, “he then went right back in.” She reported that he had

never been there for them physically or mentally or provided support. Thus, there was

evidence that father showed no real interest in providing minors a stable living

environment in the past.

The department alleged father had failed to provide minors with a safe living

environment. At the time they were taken into protective custody, minors were living

with mother, who was actively using them in a gang-related, large-scale retail theft

operation. Thus, there was evidence that at the time the department took minors into

custody they were not living in a safe environment.

11 Father failed to appear at any of the hearings below, despite arrangements which

would have allowed him to participate despite his incarceration. Father “reported he does

not want to be present for court ‘because it’s a process’ that he has to go through.” Thus,

father showed little real interest in minors during the proceedings below.

Father’s latest criminal conviction was for attempted murder in 2022. Father was

admitted to prison on July 27, 2022; his parole eligibility date was listed as January 2034.

Thus, father was not likely to be able to provide minors a safe living environment in the

future. Therefore, there was substantial evidence from which the court could conclude

that father had never provided and would never be able to provide minors with a safe

living environment.6

C. Bypass of Father’s Reunification Services

Father argues, assuming we reversed the allegations against him, we would also be

required to reverse the order bypassing his reunification services. We disagree.

Here, “ ‘Even if we found no adequate evidentiary support for the juvenile court’s

findings with respect to [father’s] conduct, we would not reverse the court’s jurisdictional

and dispositional orders nor vacate the court’s assertion of personal jurisdiction over his

parental rights.’ ” (Briana V., supra, 236 Cal.App.4th at p. 308; Ashley B., supra, 202

6 Father’s contention that his mere request that minors be placed with the paternal aunt or paternal grandmother defeated the court’s true finding on the allegations is unavailing. Father provides no evidence that a placement with either person would have been safe. (In re J.F. (2019) 39 Cal.App.5th 70, 79 [“The juvenile court’s orders are ‘presumed to be correct, and it is appellant’s burden to affirmatively show error.’ [Citations.]”].) In fact, mother reported that the paternal aunt had been to jail, which may have defeated any placement assessment.

12 Cal.App.4th at p. 979 [“We will not reverse for error unless it appears reasonably

probable that, absent the error, the appellant would have obtained a more favorable result.

[Citation.]”.)

“[T]he juvenile court is not required to distinguish between a custodial and

noncustodial parent when ordering or bypassing reunification services for a child in out-

of-home placement.” (In re Adrianna P. (2008) 166 Cal.App.4th 44, 57; In re Nickolas

T. (2013) 217 Cal.App.4th 1492, 1508 [noting that juvenile court should have bypassed

non-offending, noncustodial parent’s reunification services].) “In fact, there need not be

a jurisdictional finding as to the particular parent upon whom the court imposes a

dispositional order.” (Briana V., supra, 236 Cal.App.4th at p. 311; accord, S.F., supra,

91 Cal.App.5th at pp. 719-720; I.A., supra, 201 Cal.App.4th at p. 1492 [“A jurisdictional

finding involving the conduct of a particular parent is not necessary for the court to enter

orders binding on that parent, once dependency jurisdiction has been established.”].)

Although “a court may not deny reunification services based solely on a parent

being incarcerated, [] section 361.5, subdivision (e)(1) expressly provides that a court

may consider whether imprisonment may make reunification impossible within the

statutory timelines.” (In re Christopher L. (2020) 56 Cal.App.5th 1172, 1192

(Christopher L.); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1366 [“When a child

cannot be returned to the parent within the statutory time frame, the court is required to

establish a permanent plan for the child and refer the case for a section 366.26

hearing.”].)

13 There can be no reasonable basis to argue that reunification services are in minors’

best interest where a parent’s incarceration would fall well outside the maximum

reunification period. (Christopher L., supra, 56 Cal.App.5th at pp. 1190-1191, affd. In re

Christopher L. (2022) 12 Cal.5th 1063; § 361.5, subd. (e)(1) [in considering whether to

grant an incarcerated parent reunification services, the court should consider “the

likelihood of the parent’s discharge from incarceration . . . within the reunification time

limitations”].)

Here, father’s latest criminal conviction was for attempted murder in 2022.

Father was admitted to prison on July 27, 2022; his parole eligibility date was listed as

January 2034. Thus, father would not only be incarcerated well beyond the maximum

reunification period, but he would also be incarcerated well beyond the minors’

attainment of majority. Therefore, it is not reasonably probable the juvenile court would

have found reunification services were in minors’ best interest.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

CODRINGTON J.

RAPHAEL J.