In re J.F. et al., Persons Coming Under the Juvenile Court Law.
B335063
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 4/14/25
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. 23LJJP00259A–B)
APPEAL from orders of the Superior Court of Los Angeles County. Debra L. Gonzales, Commissioner. Affirmed.
Linda S. Votaw, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
Jeremiah F. (Father) appeals from jurisdictional findings and dispositional orders, declaring his children dependents of the juvenile court under
FACTUAL AND PROCEDURAL BACKGROUND
1. Initial dependency investigation
Father and Amanda F. (Mother) are the divorced parents of two children: J.F., a boy born in August 2013, and A.F., a girl born in January 2015. Prior to the start of these dependency proceedings, a family law court awarded sole legal and physical custody of the children to Father, and visitation to Mother, consisting of three weekends per month and every week from Thursday through Friday. The family law court also previously granted Father’s request for a domestic violence restraining order against Mother. The restraining order was in effect until January 2024.
On July 7, 2023, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging
That same day, the investigating social worker, along with two public health nurses, went to Father’s residence. Father came outside and spoke with them. He stated that J.F. was doing well and “breathing fine.” He also reported that he took J.F. home against the doctor’s advice because a respiratory therapist at the hospital told him the child was “fine.” Father denied that J.F. was diagnosed with asthma, and explained that the child had seasonal allergies as well as a cold a few days earlier. Although Father indicated that J.F. had an inhaler, he did not know the name of the child’s primary care doctor. Father allowed the social worker and nurses to meet briefly with J.F. outside the home. After the child provided his name and age, Father instructed him to go back inside. Father declined the social worker’s request to interview the children and conduct a home assessment.
Later that day, the social worker met with Mother and the children during Mother’s visitation time with them. Mother indicated that J.F. had been diagnosed with asthma and used an inhaler when he was wheezing. She reported that she took J.F. to the Children’s Hospital Los Angeles (CHLA) because she noticed that he was lethargic and walking slowly to the car, and he told her that his chest was “hurting really bad.” After Father
In his interview with the social worker, J.F. reported that he could not sleep the night before, and that Father gave him the inhaler but it did not work. J.F. further stated that Mother took him to the hospital because he was not feeling well and his chest was “hurting.” J.F. was aware that the hospital wanted to keep him there, but Father disagreed and took him home. J.F. indicated that he would use his inhaler when he had a “hard time breathing,” though Father told him that the inhaler was “not good for him.” J.F. also stated that he used to be allergic to two cats that Father had at his home because his eyes would swell up and he would have difficulty breathing. However, J.F. believed he was no longer allergic to the cats because he stopped having those symptoms.
DCFS subsequently received a report that, on July 8, 2023, Mother brought J.F. back to the CHLA emergency room due to exacerbated symptoms of asthma. It was reported that the attending physician had not been able to stabilize J.F., and the child might need to be admitted for further care. It also was reported that the police escorted Father from the hospital premises because he was being disruptive and making a scene. The medical staff was concerned that Father would not agree to J.F. being hospitalized if the physician was unable to stabilize the child and send him home.
During a July 10, 2023 telephone conversation with DCFS, Father expressed being upset that the agency instructed Mother to take J.F. for a medical clearance given that he had sole custody of the children. In response, DCFS explained that it needed to verify J.F. was medically cleared, and that the custody order allowed Mother to seek medical treatment for the children on an emergency basis. Father also complained that Mother took J.F. to CHLA rather than a hospital in their local area, and that she failed to disclose the name of the hospital to him. In addition, Father accused Mother of being a hypochondriac and having mental health issues, and claimed she was not making correct
On July 13, 2023, Father again declined DCFS’s request to conduct a home assessment. When the social worker asked if he had scheduled a followup visit with J.F.’s primary care doctor, Father stated he was working on it. In response to the social worker’s request that he inform her when that visit was scheduled, Father questioned why she cared and then stated he would think about it.
In a followup interview, Mother told DCFS that she took J.F. back to CHLA on July 8, 2023 because the child was having difficulty breathing. She also stated that J.F. started wheezing again a few days later, but he used his inhaler and was feeling better. While Mother denied being diagnosed with any mental health issues, she admitted she sought therapy for depression during her relationship with Father. J.F. similarly reported to DCFS that Mother took him back to the hospital after he told her that his chest was hurting. J.F. also confirmed that he had an inhaler at Father’s home, but only used it if his chest hurt “[r]eally bad.” The child described feeling safe in both parents’ homes.
As part of its investigation, DCFS spoke with Dr. Lourdes Escalona, the emergency room physician who treated J.F. during his July 7, 2023 visit. According to Dr. Escalona, she made it clear to Father that J.F.’s airways “were very swollen,” and
The respiratory therapist who treated J.F. at the hospital informed DCFS that the child “came in with increased difficulty breathing secondary to an asthma attack, where he required extra support and continuous breathing treatments to help reverse his condition.” The therapist also reported that when J.F. left the hospital, he “still requir[ed] oxygen” and “needed another dose of the hour long medication.” The therapist denied that Father consulted with him prior to taking the child home.
For its initial report, DCFS also obtained copies of some of J.F.’s records from his July 7 and 8, 2023 hospital visits.
2. Section 300 petition
On July 31, 2023, DCFS filed a non-detained petition for J.F. and A.F. under section 300, subdivisions (b) and (j). The petition alleged the children were at substantial risk of harm based on Father’s medical neglect of J.F.
On August 3, 2023, Father reported to DCFS that he took J.F. to his primary care doctor. He also claimed that he twice called the social worker to provide this information, but there was no answer. The social worker noted that she did not receive any calls from Father during her regular work hours or any voicemail messages from him. When the social worker asked Father if he was willing to provide medical information about
At a hearing held on August 14, 2023, Father and Mother each made their first appearance in the case, and were appointed counsel. The juvenile court ordered that the children remain released to their parents under the existing family law order, and set the matter for an adjudication hearing. The court also ordered the parents to make the children available to DCFS, the children’s counsel, and any public health nurses, and to comply with any home visits conducted by DCFS. In addition, the court ordered Father to provide DCFS with information about the children’s current doctors.
3. DCFS’s jurisdiction/disposition report
For DCFS’s jurisdiction/disposition report, the dependency investigator interviewed Mother and the children regarding the allegations in the section 300 petition. In her interview, Mother recalled that, on the day she took J.F. to the hospital, she picked up the children for her visitation time and noticed that J.F. did not look well. His shoulders were hunched over and he labored to breathe. Mother decided to take J.F. to CHLA because it specialized in children, and she believed he would get better treatment there. Mother brought J.F. back to CHLA the following day because DCFS told her the child needed to be medically cleared, and she thought it was best to take him to the same hospital that previously treated him. Mother believed that Father would not approve of her taking J.F. to the doctor because he took a holistic approach to medical treatment that Mother considered to be extreme. Mother also expressed concern about J.F.’s asthma and allergies to cats, which Father owned. Mother
Although the dependency investigator also attempted to interview Father, he would not agree unless the interview could be recorded. Because DCFS’s policy did not permit recorded interviews, the dependency investigator was unable to meet with him. While Father did provide the name of a pediatrician, when the dependency investigator contacted the doctor’s office, she was informed that neither child was a patient there. In response to DCFS’s request for clarification about the children’s current doctor, Father stated that further questions should be directed to his attorney. As a result, DCFS had not been able to determine who the children’s primary pediatrician was or where they had received medical care. In addition, Father still had not granted DCFS access to his home for a safety assessment.
In its jurisdiction/disposition report, DCFS also attached additional records from CHLA. The records showed that Mother brought J.F. to the emergency room in May 2022 for a persistent cough and difficulty breathing that started after the child came from Father’s home. The doctor’s notes from that visit indicated that J.F.’s symptoms were most likely due to a mild asthma exacerbation and cat allergy, and that the child’s condition improved with treatment. The doctor’s notes from J.F.’s July 7, 2023 visit stated that Dr. Escalona explained to Father that the child’s condition was serious, and that she pleaded with him to
4. Children’s detention from Father
At a hearing held on October 4, 2023, the juvenile court noted its prior order allowing the children to remain in Father’s home was conditioned upon him making the children available to DCFS and providing information about their medical providers. The court indicated that Father did not appear to be following that order, and advised his counsel that Father needed to comply with all conditions of the children’s release.
In an addendum report filed on October 5, 2023, DCFS stated that Father continued to refuse its request to interview the children and to assess his home. Because Father would not allow DCFS to visit his residence or meet with the children unless he could record any contact, the agency had not been able to complete this portion of its investigation. DCFS also noted that it had not received any further information from Father about the children’s current medical care.
On October 12, 2023, counsel for DCFS and counsel for the children joined in requesting that the juvenile court detain the children from Father and place them with Mother. The children’s counsel reported that Father refused to allow an investigator from her office to visit his home, and that she was unable to confirm if the children still felt safe in Father’s care. Father’s counsel objected to a change in placement, arguing that Father’s
After hearing from counsel, the court detained the children from Father, released them to Mother pending the adjudication hearing, and granted Father monitored visitation in a DCFS-approved setting. The court also continued the adjudication hearing to allow Father’s counsel time to review the documents that he provided to her. At a separate hearing attended by Father and his counsel, the court denied Father’s request to appoint a new attorney.
On October 19, 2023, Father told the social worker that he recently took the children for physical exams, but he refused to provide any further information and directed the social worker to contact his attorney. Father also refused to provide Mother with any medical information regarding the children, and objected to her taking the children to the doctor and having J.F. tested for allergies without his approval. Father later reported that the children’s last physical exams were in July 2023. However, he again refused the social worker’s request for additional information.
On November 1, 2023, Father’s counsel asked the court to grant a further continuance. His counsel noted that Father provided her with additional documents the previous week, but she was unable to review them because she was out due to illness. The court again found good cause to continue the adjudication hearing. The court also reiterated to the parties
In a series of last-minute-information reports, DCFS stated that the children had dental exams in November 2023 and physical exams in December 2023. DCFS also noted that, on November 27, 2023, Mother reported that J.F. required breathing treatment after being around cats during a visit with Father. DCFS opined that Father knew J.F. was allergic to cats but continued to expose the child to that allergen despite its triggering effects on his asthma. DCFS further opined that, while Mother had shown an ability to meet the children’s needs, Father had not demonstrated that he understood the importance of placing the children’s medical and emotional needs first. DCFS recommended the court sustain the section 300 petition and terminate jurisdiction with a family law order granting joint legal custody to both parents and sole physical custody to Mother.
5. Jurisdictional and dispositional hearing
Starting on January 9, 2024, the juvenile court held a combined jurisdictional and dispositional hearing. In addition to receiving into evidence DCFS’s various reports, the court admitted three exhibits offered by Father. Those exhibits consisted of medical records for the children’s July 22, 2023 visit to the Palmdale Urgent Care, and a July 31, 2023 prescription for an albuterol inhaler for J.F. The court denied Father’s request to admit additional exhibits consisting of numerous character reference letters from Father’s friends, family, and fellow church members.
Father was called to testify at the hearing by his counsel. According to his testimony, Father observed J.F. have mild wheezing and coughing on a few occasions. While Mother told
Before J.F. went to stay with Mother on July 7, 2023, the child had a cold and difficulty sleeping, but was feeling better. Mother later told Father that she was taking J.F. to the hospital, but she did not disclose which one. When Father arrived at CHLA, he felt that the doctor and hospital social worker were inexplicably hostile and accusatory toward him. Father’s understanding of J.F.’s condition at the time was that the child was in the exact same state as when he left Father’s home. He believed J.F. had some mild wheezing and cold symptoms, but was otherwise doing well. Father claimed the doctor refused his request for a second opinion, and physically grabbed his arm when he said wanted to take the child home. Father assured the hospital staff that he would take J.F. to an emergency room if there were any signs of oxygen deprivation. He denied knowing that there was a medical advisement for J.F. to remain at the hospital for more breathing treatments.
Father testified that he did not medically neglect J.F. in July 2023 because the child had a cold and needed to rest at home to heal. Father believed Mother initiated the dependency case to regain custody of the children after she lost custody “due to her instability.” Father was asked if he would permit DCFS and the children’s counsel to enter his home without recording them if the children were returned to him. Father replied that he would “take it as a situation by situation,” and that he remained concerned about granting access based on “several inaccuracies” that were reported about him. Father wanted the juvenile court to award him sole legal and physical custody of the children with monitored visitation for Mother.
The jurisdictional and dispositional hearing resumed on January 12, 2024. Counsel for DCFS and counsel for the children joined in asking the court to sustain the petition as pled and remove the children from Father. They also joined in requesting that the court terminate its jurisdiction with a custody order granting sole physical custody to Mother, and joint legal custody to both parents with tie-breaking authority to Mother. They also requested monitored visitation for Father. Father’s counsel asked the court to dismiss the petition in its entirety, and to either release the children to Father or grant him unmonitored and overnight visitation.
6. Termination of dependency jurisdiction
On January 25, 2024, Mother informed DCFS that the children returned from a recent visit with Father and disclosed spending time at Father’s home. Mother stated that Father’s cats were not present in the home, but J.F. was exposed to cat hair during the visit and experienced symptoms of asthma when he returned to Mother. DCFS reported that Father’s home was not approved for visits because he continued to deny access to his home for an assessment.
On January 26, 2024, the court held the hearing on the proposed juvenile custody order. Father’s counsel stated that she discussed DCFS’s latest report with Father, and that J.F. was only at his home for a short period to pick up some clothes. His counsel also stated that Father believed that jurisdiction had been terminated, and he was allowed to take the children to his home as long as a monitor was present. The children’s counsel expressed concern that Father placed J.F. “in a situation where he knew [the child] could have an asthma attack, and he did it because he believed the court had dismissed jurisdiction, and he was free to do what he wanted.” In response, the court emphasized that, under its existing order, Father’s visits were
Father timely appealed.
DISCUSSION
1. Denial of motion to substitute counsel
Father contends the juvenile court erred in denying his motion to substitute appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and that following the denial of the motion, his attorney provided ineffective assistance of counsel. We conclude Father’s claims lack merit.
On October 12, 2023, the originally scheduled date of the adjudication hearing, Father made a Marsden motion to replace his court-appointed attorney. At a Marsden hearing held with Father and his counsel, the juvenile court asked Father why he wanted a new attorney. Father explained that, over the past five weeks, he repeatedly tried to reach his attorney by e-mail and telephone, and that she did not respond until about a week ago. He also stated that, when they did talk, he “was not able to get the guidance or advice [he] was looking for legally.” Father noted that he was not questioning his counsel’s competence, but he was concerned that she had done nothing to prepare for the case. In response, counsel noted that she had an extensive conversation with Father at the initial hearing, but acknowledged there had been about a week delay in communicating with him following DCFS’s filing of its jurisdiction/disposition report. Counsel added that she “would defer to the court if [Father] believes there has been a breakdown in communication.”
Marsden, supra, 2 Cal.3d 118 addresses the circumstances under which criminal defendants have a right to the substitution of appointed counsel and the procedures to be employed by the trial courts in determining whether those circumstances exist. (In re Samuel A. (2021) 69 Cal.App.5th 67, 73, fn. 3.) “Because parents have a statutory and due process right to competent counsel in dependency proceedings, a comparable mechanism for challenging the adequacy of their representation by appointed counsel has been recognized by the courts.” (Ibid.; accord, In re M.P. (2013) 217 Cal.App.4th 441, 455; In re V.V. (2010) 188 Cal.App.4th 392, 398.) Relying on the Marsden model, juvenile courts have permitted the parents in dependency cases “to air their complaints about appointed counsel and request new counsel be appointed.” (In re V.V., at p. 398.)
When a criminal defendant brings a Marsden motion to substitute appointed counsel, ” ‘the trial court must permit the defendant to explain the basis of his contention and to relate
In this case, the juvenile court did not abuse its discretion in denying Father’s Marsden motion. The court allowed Father to explain why he was seeking the appointment of new counsel and to provide any examples of inadequate performance by his current attorney. The court also allowed counsel an opportunity to respond to Father’s reported complaints about a lack of contact and lack of preparation. In addition, the court indicated that it was willing to grant a continuance of the adjudication hearing if counsel needed additional time to gather evidence or investigate the case. Indeed, immediately following the Marsden hearing, the court granted counsel’s continuance request so that she could review documents that she recently received from Father. Based on the totality of information presented at the Marsden hearing, the court reasonably determined that Father and his counsel had not become embroiled in such an irreconcilable conflict that ineffective representation was likely to result.
Father also argues that, following the denial of his Marsden motion, his counsel provided ineffective assistance in preparing and presenting his case. “A parent seeking to establish
Here, Father’s complaints about his counsel’s performance generally concern the tactical decisions that his attorney made about what evidence to offer or object to at the adjudication hearing. In particular, Father asserts that his counsel failed to object to hearsay statements in DCFS’s reports, to cross-examine the social worker about the contents of the reports, to offer into evidence unspecified records from the family law case, and to timely obtain and present the children’s most recent medical records. On this record, however, we cannot say that counsel’s decisions about how to best present Father’s case to the juvenile court “had no rational tactical purpose,” or that Father would have obtained a more favorable result “but for [his] counsel’s failings.” (In re N.S. (2020) 55 Cal.App.5th 816, 843.) Father’s ineffective assistance claim accordingly fails.
2. Exclusion of Father’s character reference evidence
Father argues the juvenile court erred in refusing to admit the numerous character reference letters that his counsel offered into evidence at the jurisdictional and dispositional hearing. We find no abuse of discretion in the juvenile court’s ruling.
Here, Father’s proffered evidence consisted of 21 character reference letters. The majority of the letters were from Father’s friends and fellow church members, and described his positive relationship with his children. A letter from Father’s pastor explained that the church Father attended was not opposed to modern medicine, and a letter from Mother’s sister described Mother’s alleged character for dishonesty. While some of the letters were dated in October or December 2023, most were undated. None of the authors of the letters were offered as witnesses at the jurisdictional and dispositional hearing.
The juvenile court acted within its broad discretion in excluding this evidence. As DSCF’s counsel pointed out at the
Moreover, even if we were to conclude that the juvenile court abused its discretion in refusing to admit the evidence, any such error would have been harmless. Father has not shown there is a reasonable probability that he would have obtained a more favorable result had the court considered the character reference letters at either the jurisdictional or dispositional stage of the proceedings. On this record, Father has failed to demonstrate reversible error in the juvenile court’s ruling.
3. Sufficiency of the evidence supporting the jurisdictional findings and dispositional order
Father challenges the sufficiency of the evidence supporting the juvenile court’s jurisdictional findings and dispositional order. He argues the evidence was insufficient to show that he medically neglected J.F. in July 2023, or that the children were at risk of such neglect in the future. He also asserts there was insufficient evidence to establish that the
3.1. Standard of review
We review challenges to the sufficiency of the evidence underlying jurisdictional findings and dispositional orders for substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) “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.” (Ibid.) “When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court 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.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
3.2. Substantial evidence supported the jurisdictional findings
In exercising jurisdiction, the juvenile court sustained the following language in counts b-1 and j-1 of the
In this case, the juvenile court reasonably could find that Father medically neglected J.F. in July 2023. The evidence showed that J.F. suffered from chronic asthma, and that the child
The juvenile court also reasonably could find that both J.F. and A.F. were at substantial risk of harm at the time of the jurisdictional and dispositional hearing. During his testimony at the hearing, Father maintained that he did not medically neglect J.F. when he removed him from the hospital in July 2023 because Father believed the child merely had a cold and needed to rest at home. Even though the treating physician determined that J.F. needed supplemental oxygen and other interventions because of his difficulty breathing, Father testified that the child “was doing well” when he first saw him at the hospital and “was in the exact
3.3. Substantial evidence supported the dispositional order
“At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under
Here, the same evidence that supported the juvenile court’s jurisdictional findings based on Father’s medical neglect of J.F. also supported its removal order. (
Furthermore, the record shows that Father repeatedly refused to cooperate with DCFS or to allow a safety inspection of his home in violation of the juvenile court’s order. When asked at the jurisdictional and dispositional hearing whether he would be willing to grant DCFS and the children’s counsel access to his home without recording them, Father stated that he “would take it as a situation by situation.” Contrary to Father’s claim, the juvenile court did not base its removal order on his inability to
4. Order terminating jurisdiction over the children
Father argues the juvenile court failed to properly apply
Under
Here, the juvenile court chose the first option. After removing the children from Father’s custody, the court placed them with Mother as a nonoffending and previously noncustodial parent. The court then terminated its jurisdiction over the children and issued a juvenile custody order that granted joint legal custody to both parents, sole physical custody to Mother, and supervised visitation to Father. In deciding to terminate jurisdiction, the court found that continued supervision over the children was not necessary, and that releasing the children to
Citing In re Austin P. (2004) 118 Cal.App.4th 1124 (Austin P.), Father contends the juvenile court lacked the authority to terminate jurisdiction at the dispositional hearing, and instead was required to hold a separate hearing to determine whether continued supervision was necessary. That case however, solely concerned whether the juvenile court was required to terminate its jurisdiction once it placed a child with a noncustodial parent under
5. Order for supervised visitation for Father
Last, Father challenges the juvenile court’s custody order restricting his contact with the children to supervised visitation. He claims the visitation order must be reversed because it lacked any legal or factual support. We disagree.
When terminating jurisdiction over a dependent child,
Shortly before the January 26, 2024 hearing on the custody and visitation order, Father brought the children into his home because he assumed jurisdiction had been terminated and he was free to do so. Given Father’s willingness to disregard the advice of the children’s doctors and the court orders with which he personally disagreed, the juvenile court reasonably could find that the children’s best interests required that their visits with Father remain supervised. On this record, the juvenile court did not abuse its discretion in issuing the visitation order.
The juvenile court’s jurisdictional findings and dispositional orders are affirmed.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.