Los Angeles County Department of Children & Family Services v. K.G.
238 Cal. App. 4th 1444
| Cal. Ct. App. | 2015Background
- In Dec. 2013 mother was intoxicated with her two children in the car, taken to hospital; DCFS filed a §300(b) petition based on mother’s substance abuse and emotional problems. Children were detained with maternal grandfather; mother entered treatment and cooperated with DCFS.
- Father was located in jail; his CLETS criminal history showed prior convictions (including forcible rape and failure to register as a sex offender) and pending charges arising from a 2009 sexual assault allegation. Father claimed limited recent contact with the children and asserted he would be vindicated on pending charges.
- DCFS filed a subsequent (§342) petition and then an amended §342 petition adding counts that: (b-1/d-1) alleged father’s criminal history endangered the children; (b-2/d-2) alleged mother knew or should have known of father’s 2009 sexual offense and allowed him access; and (b-3) alleged mother failed to protect the children by declining a restraining order after a 2007 domestic violence incident.
- At the jurisdiction/disposition hearing father invoked his Fifth Amendment right; the court sustained the amended petition as to counts b-1, b-3, d-1 and also sustained b-2 and d-2 as amended (conforming allegations), then ordered reunification services for mother and denied reunification for father.
- Mother appealed, conceding jurisdiction based on her substance abuse but challenging counts b-2, b-3, and d-2; the Court of Appeal reviewed the merits, struck counts b-2, b-3, and d-2 for insufficient evidence, and affirmed the order as modified.
Issues
| Issue | Plaintiff's Argument (DCFS) | Defendant's Argument (Mother) | Held |
|---|---|---|---|
| Whether a single 2007 domestic violence incident plus mother’s failure to obtain a protective order supported jurisdiction for current risk (count b-3) | Past domestic violence and mother’s failure to seek a restraining order exposed children to ongoing risk and justified jurisdiction | Single 2007 incident and failure to obtain a protective order did not show a current or continuing risk to children | Struck b-3 — no substantial evidence the 2007 incident or mother’s failure to get an order created a present risk |
| Whether mother knew or should have known of father’s 2009 sexual offense and thus failed to protect the children (counts b-2 & d-2) | Mother should have known (court reasoned a 2007 restraining-order/CLETS chain would have revealed father’s sex-offender status) and thus negligently allowed access | Mother was unaware; no evidence she was willfully blind or had notice; no authority requires obtaining an emergency order or guarantees CLETS would reveal 2009 conduct | Struck b-2 and d-2 — no substantial evidence mother knew or reasonably should have known of the 2009 conduct |
| Whether the court should address these challenges despite other sustained jurisdictional findings | Jurisdictional error can affect dispositional orders and carry stigma; appellate review appropriate | Mother sought merits review of specific findings that have independent consequences | Court exercised discretion to review and remanded-modify by striking unsupported counts |
Key Cases Cited
- In re Rocco M., 1 Cal.App.4th 814 (past conduct probative but court must find current risk) (discusses timing of risk analysis for §300)
- In re Daisy H., 192 Cal.App.4th 713 (domestic violence supports jurisdiction only if ongoing or creates current risk)
- In re Heather A., 52 Cal.App.4th 183 (ongoing domestic violence in household can constitute failure to protect)
- In re Savannah M., 131 Cal.App.4th 1387 (mere speculation about future risk insufficient to support jurisdiction)
- In re I.J., 56 Cal.4th 766 (burden of proof and substantial-evidence standard in dependency jurisdiction)