Filed 7/14/15 In re Rosemary D. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re Rosemary D., a Person Coming Under 

the Juvenile Court Law.

 B259831

 (Los Angeles County Super. Ct. 

 No. CK56302)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

Thomas D.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of the County of Los Angeles, Julie F. 

Blackshaw, Judge. Dismissed in part and affirmed in part.

Jarrette & Walmsley and Robert R. Walmsley, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel, 

Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

_______________________
2

The dependency court found 13-year-old Rosemary D. to be a minor described by 

Welfare and Institutions Code section 300, subdivision (b),

1 based on two separate 

counts. The first count alleged that Rosemary suffers from emotional problems and 

substance abuse, and that her father’s failure to take her to scheduled psychiatric 

appointments and drug dependency counseling constituted medical neglect, placing her at 

risk of harm. The second count alleged father placed Rosemary at risk of harm by taking 

her to relatives’ homes where father knew or should have known the residents possessed, 

used, and were under the influence of, marijuana. Father appeals the court’s order 

sustaining the second count only. He also challenges the dispositional order removing 

Rosemary from parental custody. 

Father’s appeal of a single jurisdictional finding is not justiciable, because even if 

we conclude the court erred in sustaining the second count, jurisdiction will still exist 

based on the remaining count. We affirm the court’s dispositional order, because it is 

supported by substantial evidence. 

FACTUAL AND PROCEDURAL BACKGROUND

Rosemary was born in 2001, and the Los Angeles County Department of Children 

and Family Services (Department) first became involved with Rosemary’s family in 

2004, when the Department filed a petition based on mother’s mental illness and her 

inability to care for Rosemary.2 The prior dependency case was resolved in 2006, with 

an exit order granting father sole legal and physical custody of Rosemary. Father has an 

extensive criminal history, with convictions for misdemeanor and felony offenses such as 

 

1 All statutory references are to the Welfare and Institutions Code, unless 

otherwise indicated. 

2 Mother did not appear in the current proceedings before the dependency court, 

nor is she a party to the current appeal.
3

burglary, possession of narcotics for sale, and firearm possession by a felon, but all 

convictions predate Rosemary’s birth. 

The Department received a large number of additional referrals expressing 

concerns about sexualized behavior by Rosemary, as well as Rosemary being the victim 

of physical abuse and neglect, including exposure to drug and alcohol use, by father and a 

woman referred to as Rosemary’s stepmother.3 Each referral was closed as inconclusive 

or unsubstantiated. The referrals from January, March, and April 2014, express 

increasing concern with Rosemary’s behavior and her mental and emotional status, 

noting that father had failed to take Rosemary to two scheduled appointments with a 

psychiatrist in February and March 2014, as well as continued exposure to drug use. 

Rosemary reported she started smoking marijuana when she was seven years old. 

Her stepmother threatened to kill her if she did not smoke. Rosemary said she smoked 

every night she stayed with her stepmother, and that her friends at school now just give 

her marijuana when she asks for it. Rosemary was caught smoking marijuana at school 

twice and having it in her possession three times. In February 2014, Rosemary was sent 

to the office after a pill fell out of her pocket and she refused to identify it. After several 

acts of defiance, she used a pencil to stab a school staff member in the stomach. She was 

arrested and charged with three felony counts of assault and battery. 

Rosemary has lived off and on with distant maternal cousins who she refers to as 

her “grandma” (Lillie J.) and “aunt” (Jan R.). Until March 2014, Rosemary lived with 

grandma Lillie and aunt Jan during the week, and stayed with her father on weekends. 

Lillie and Jan both complained to the Department that father has been uncooperative with 

ensuring Rosemary’s medical needs are met, in part because when they would ask him to 

sign medical consent forms, he would not. In March 2014, Rosemary’s behavior became 

too much for Lillie and Jan to handle, and she began living with her father. Rosemary 

was attending a continuation school, where the principal has said father does not want 

 

3

It appears that the woman is no longer Rosemary’s stepmother, but father now 

has a girlfriend. 
4

anything to do with Rosemary and does not want to be her father. Father would 

sometimes lose patience with Rosemary and refuse to pick her up from school until Lillie 

or Jan threatened to call the police or the Department. 

The psychiatrist who has seen Rosemary since September 2012 reported that 

Rosemary was doing well when she was in Lillie and Jan’s care, but when the 

psychiatrist first met father in November 2013, father was unable to provide basic 

information about Rosemary, such as who took her to school. Father did not bring 

Rosemary to scheduled psychiatric appointments on March 3, 2014, and April 28, 2014, 

and told the psychiatrist on March 24, 2014, that Rosemary had been “kicked out” of her 

grandmother’s home because of her behavior. He also told the psychiatrist Rosemary 

was stealing his pornography and condoms and he wanted to know how to get her into a 

group home so she would not be on the streets. The psychiatrist felt that father lacked the 

ability to parent, and Rosemary did better while in Lillie and Jan’s care. Rosemary also 

missed a few weeks of chemical dependency counseling during the spring of 2014.

Rosemary missed two court dates in April 2014 for the juvenile delinquency case 

arising from the school stabbing and felony charges. A bench warrant was issued for her 

arrest after she failed to appear on April 21, 2014.

On June 14, 2014, the Department filed a petition seeking to have Rosemary 

declared a minor described by section 300, subdivision (b), and the court issued an order 

authorizing her detention from father’s home, but granted father limited unmonitored 

visitation. Rosemary was initially placed with Lillie, but was later moved to a group 

home after Lillie had to call the police on several occasions because of Rosemary’s 

aggressive behavior. Rosemary was refusing to take her medications or go to school, and 

she was seen playing with fire and trying to smoke coffee and oregano leaves. The 

Department noted that it was not possible to place Rosemary in a foster or lower level 

group home because she had been charged with three felony counts in connection with 

the school stabbing. 

At the jurisdictional hearing on October 1, 2014, the court received the 

Department’s reports into evidence and heard argument from all attorneys. It then 
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sustained counts b-1 and b-2 against father, finding his inability to provide regular care 

and supervision to Rosemary placed her at risk of physical harm and damage. 

The parties requested to continue the disposition hearing to conduct a team 

decision-making meeting, but the court proceeded with disposition. It found by clear and 

convincing evidence under section 361, subdivision (c), there would be a substantial risk 

to Rosemary if she were returned to father, removed her from parental custody, and 

granted father unmonitored visits and reunification services. Father objected to the case 

plan, but made no objection to the removal order. Father filed a timely notice of appeal. 

DISCUSSION

Jurisdictional Findings

Father challenges only the jurisdictional finding based on count b-2, which alleged 

he took Rosemary to homes where he should have known she would have access to 

marijuana. Because father concedes substantial evidence supports the court’s 

jurisdictional findings based on count b-1, regarding his failure to take Rosemary to her 

psychiatric appointments, we find his appeal of the remaining count to be nonjusticiable 

and decline to exercise our discretion to address whether substantial evidence supports 

the appealed count. 

In order for a controversy to be justiciable, the Court of Appeal must be able to 

grant effective relief, in other words an order or remedy that will have a practical, 

tangible impact on the legal status of the parties to the appeal. (In re I.A. (2011) 201 

Cal.App.4th 1484, 1490.) Father concedes that jurisdiction exists based on count b-1, 

thereby relieving this court of any obligation to consider whether the other count is 

supported by the evidence, unless he can show what practical tangible impact such 

review will have. “‘When a dependency petition alleges multiple grounds for its 

assertion that a minor comes within the dependency court’s jurisdiction, a reviewing 

court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of 
6

the statutory bases for jurisdiction that are enumerated in the petition is supported by 

substantial evidence. In such a case, the reviewing court need not consider whether any 

or all of the other alleged statutory grounds for jurisdiction are supported by the 

evidence.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.) 

In In re Drake M. (2012) 211 Cal.App.4th 754, 762, the court explained that it is 

appropriate to reach the merits of an appealed jurisdictional finding when the finding 

meets one of several criteria, including whether it “serves as the basis for dispositional 

orders that are also challenged on appeal.” Here, father argues that without the findings 

based on count b-2, “it does not reasonably follow that removal from [f]ather’s custody 

was a sustainable disposition.” Because we find substantial evidence supports the court’s 

removal order regardless of whether there was evidence to support the court’s 

jurisdictional finding on count b-2, we need not review that single jurisdictional finding. 

Removal Order

Father contends there was insufficient evidence to support the dependency court’s 

order removing Rosemary from his custody under section 361, subdivision (c)(1). We 

conclude there was no error. 

As an initial matter, we disagree with the Department’s contention that father’s 

failure to object to the court’s removal order forfeited his right to raise the issue on 

appeal. A claim that the evidence is insufficient to support a dispositional order is not 

forfeited even if not raised in the dependency court. (In re R.V., Jr. (2012) 208 

Cal.App.4th 837, 848-849.) 

We review a dispositional order removing a child from parental custody for 

substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562, 1574.) In other words, 

“we look to see if substantial evidence, contradicted or uncontradicted, supports [it]. 

[Citation.] 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 . . . .” (In re Heather A.
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(1996) 52 Cal.App.4th 183, 193.) Issues of fact and the credibility of witnesses are 

questions for the trial court. (In re Carmaleta B. (1978) 21 Cal.3d 482, 495.) “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.]” (In re Matthew S.

(1988) 201 Cal.App.3d 315, 321.) Thus, the pertinent inquiry is whether substantial 

evidence supports the finding, not whether a contrary finding might have been made. (In 

re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

Under section 361, subdivision (c)(1), a dependent child may not be removed from 

a parent unless the dependency court finds by clear and convincing evidence “[t]here is or 

would be a substantial danger to the physical health, safety, protection, or physical or 

emotional well-being of the minor if the minor were returned home, and there are no 

reasonable means by which the minor’s physical health can be protected without 

removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd. 

(c)(1).) “‘The parent need not be dangerous and the minor need not have been actually 

harmed before removal is appropriate. The focus of the statute is on averting harm to the 

child.’ [Citation.] The court may consider a parent’s past conduct as well as present 

circumstances. [Citation.]” (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.) 

We hold that the record contains substantial evidence that Rosemary could not 

safely remain in father’s custody. Multiple sources described father as either incapable or 

uncooperative. His communications with Rosemary’s maternal relatives, her school, and 

the Department demonstrate either an inability or an unwillingness to take steps to protect 

his daughter’s welfare. When the Department was receiving multiple referrals regarding 

Rosemary in the spring of 2014, father was uncooperative, stating he did not have time to 

talk to the social worker for two and a half weeks, and watching television during a 

scheduled meeting with the social worker. Father also called Rosemary a liar and said he 

did not want her on medication because it will not change the fact that she lies. While the 

record does not make it clear why Rosemary failed to appear in court to answer felony 

charges, it would be reasonable for the court to infer that father is neglecting his duties as 
8

a parent by permitting such a lapse to occur not once, but twice. Taken together, all of 

this information supports the court’s finding that removal was required.

Father points to In re James T. (1987) 190 Cal.App.3d 58 and In re Jeanette S. 

(1979) 94 Cal.App.3d 52, 60 to contend the court erred in removing Rosemary without 

first considering what services could be provided to avoid the need for removal. Father 

argues that if the Department had provided services such as respite care, transportation, 

homemaking, family support service, and mental health treatment, it would not have been 

necessary to remove Rosemary to protect her from potential harm. While there is no 

evidence the Department formally offered such services to father, it is clear that father 

was not engaged with the Department in trying to resolve the issues affecting his 

daughter, and so we reject father’s argument.

DISPOSITION

The portion of father’s appeal challenging the court’s jurisdictional finding is 

dismissed, and the court’s dispositional order is affirmed.

KRIEGLER, J. 

We concur: 

TURNER, P. J.

MOSK, J.