Opinion
F087054
06-25-2024
In re I.J., a Person Coming Under the Juvenile Court Law. v. S.V., Defendant and Appellant; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, D.J., Respondent.
Laurel Thorpe and Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. Lelah Forrey-Baker, under appointment by the Court of Appeal, for Respondent D.J. Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County, No. 23CEJ300103-1 Amythest Freeman, Judge.
Laurel Thorpe and Susan M. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant.
Lelah Forrey-Baker, under appointment by the Court of Appeal, for Respondent D.J.
Daniel C. Cederborg, County Counsel, and Ashley N. McGuire, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
S.V. (mother) appeals from a final order entered after hearing pursuant to Welfare and Institutions Code sections 355, subdivision (a) and 360, where the juvenile court gave sole legal and sole physical custody of minor I.J. (age 3) to Devin J. (father). Mother argues the court erred when it took jurisdiction of I.J. and placed him with father, and there was not a substantial risk of I.J. suffering serious physical harm or illness due to sexual abuse, or mother's substance abuse, mental illness, or disciplinary methods. Mother also argues the court erred when it placed I.J. with father, ordered supervised visitation, and terminated jurisdiction pursuant to section 362.1, subdivision (b).
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
We find multiple statutory grounds asserted by the Fresno County Department of Social Services (department) in its section 300 petition are supported by substantial evidence, and therefore affirm the juvenile court's jurisdictional finding. We further find the court's order placing I.J. with father was supported by substantial evidence, and the court did not abuse its discretion by ordering limited, supervised visitation and terminating jurisdiction pursuant to section 362.1, subdivision (b). We, however, agree insufficient evidence supports the court's finding under section 300, subdivision (d), and modify the order to strike the allegation under that subdivision. The order is affirmed in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Present Juvenile Dependency Petition
On April 20, 2023, the department filed a juvenile dependency petition alleging I.J. came within the provisions of section 300, subdivisions (b)(1) and (d).
As to section 300, subdivision (b)(1), the petition alleged three counts against mother. First, mother had a substance abuse problem that negatively affected her ability to provide I.J. with adequate care, supervision, and protection, and mother had exposed I.J. to domestic violence and had a history of being involved in domestic violence altercations with I.J. in her care (count b-1).
The petition alleged one count against father, that father had a substance abuse problem that negatively affected his ability to provide I.J. with adequate care, supervision, and protection because he smoked marijuana three to four times per week (count b-4).
Second, mother had untreated mental health issues that negatively affected her ability to provide I.J. with adequate care, supervision, and protection. The petition alleged mother had admitted she was diagnosed with bipolar disorder and was not receiving treatment. The petition further alleged mother had recorded herself engaging in sexual relations with an adult male while I.J. stood next to the bed crying (count b-2).
Third, mother inappropriately disciplined I.J., was aggressive and hostile toward I.J., and was witnessed "popping" and flicking him on the head, pushing him into his stroller, grabbing and slapping his arm, and hitting him since he was born (count b-3).
As to section 300, subdivision (d), the petition alleged one count against mother, that mother recorded herself engaging in sexual relations while I.J. stood next to the bed crying (count d-1). Each count concluded there was a substantial risk to I.J. that he would suffer serious physical harm or illness in the care of mother (as to counts b-1, b-2, &b-3) or that he would be further sexually abused in the care of mother (count d-1).
Events Preceding May 1, 2023 Detention Hearing
On March 20, 2023, the department received a crisis referral regarding physical abuse and general neglect of I.J., who was one year old at the time. The reporting party (RP) stated that mother and I.J. were currently at an emergency shelter, and mother was using drugs and hitting I.J.
I.J. turned two years old on March 27, 2023.
RP reported that I.J. had a knot on his forehead. Mother claimed the bathroom door swung and smacked I.J., but RP reported seeing a photo of I.J.'s forehead and did not believe that is how I.J. got the knot. RP reported that mother has been hitting I.J. since he was born because" '[h]e is bad and keeps doing things.' "
RP reported mother was" 'very Bipolar,'" would "go into a rage" if anyone told her anything, and would flee with I.J. if child protective services became involved. RP further reported mother had a history of using crystal methamphetamine and RP suspected mother was now using cocaine while I.J. was in her care. RP also reported mother was in an" 'on and off again'" violent relationship with a man who tried to throw mother and I.J. off of a cliff.
RP stated that mother had been in a car accident the prior week where both she and the boyfriend had been drinking. I.J. was in the car and the boyfriend beat mother at the scene of the accident. Additionally, mother had previously left I.J. in a locked car and a window had to be broken to get him out. RP stated mother had left I.J. with maternal grandfather for two days when she was only supposed to leave him for half an hour, and was no longer welcome in maternal grandfather's home. RP concluded I.J. was not safe in the care of mother and should be with father.
On March 20, 2023, social work practitioner Gayane Petrosyan made contact with father, who lived in Arizona but traveled to Fresno the day prior. Father stated mother was unstable, had mental health issues, and was living from couch to couch. Father stated he had not seen but had heard that mother was using drugs. He stated he had been concerned about I.J. remaining in mother's care but was not able to do much because mother was always moving around. He admitted he smoked marijuana three to four times a week but denied any other substance or alcohol use, and denied any domestic violence between himself and mother.
On March 20, 2023, Petrosyan attempted to make face-to-face contact with mother and I.J. at the emergency shelter but was only able to make telephone contact with mother later that day. Mother denied any allegations against her, initially refused to meet Petrosyan, and refused to state the day she entered the emergency shelter. Ultimately, mother agreed to meet Petrosyan later that day.
Petrosyan, mother, and cultural broker Lori Britten made in-person contact outside the emergency shelter. I.J. was sleeping in mother's arms. Petrosyan described mother and I.J. as appearing somewhat clean although overall disheveled, as the clothes they were wearing were slightly dirty. Petrosyan also observed a bump on I.J.'s forehead, which mother said I.J. got when a door at the shelter swung open and accidentally hit him.
Mother stated she moved to Fresno in January 2023 to get away from a domestic violence relationship she was in. She began a new relationship with a man who started to "put hands on her" and she left him. She came to the shelter over the weekend after she got" 'jumped'" by her female cousin and the cousin's daughter.
Mother confirmed she was in a car accident with her ex-boyfriend on March 13, 2023. She initially stated that I.J. was in the car with her, but then denied I.J. was in her care at the time and said he was with maternal grandfather. Mother denied she was intoxicated. Mother stated she was upset with the ex-boyfriend for wrecking her car, and he tried to choke her. A police report from the accident noted that mother was "extremely intoxicated" at the time officers made contact with her, and I.J. was in mother's care.
Mother stated she did not use cocaine or any other drugs, except for marijuana two to three times a week. However, she had not been using marijuana recently and agreed to a drug test. She tested positive for cocaine, marijuana, and alcohol.
When asked about a local support system, mother said her father lives in Fresno but "he drinks almost daily." She stated she has an older son who is in the care of maternal grandmother, and that is a plan mother made herself because she could not care for him. With regards to mental health, mother stated she was diagnosed with bipolar II but has never received counseling. With regards to discipline, mother stated she gives verbal threats to I.J. and" 'pops'" his hand. She admitted to a criminal history in Las Vegas, and went to prison for gun charges.
On March 21, 2023, Petrosyan spoke with mother about the positive drug test. Mother denied any drug use, stated that she never used cocaine, and claimed that someone must have slipped cocaine in her drink the prior Friday. Mother then admitted that she had used cocaine one time in 2021 with an ex-boyfriend. She stated the current ex-boyfriend, with whom she had been in the car accident, used "everything," including methamphetamine, heroin, marijuana, and cocaine.
March 17, 2023.
Petrosyan again asked mother about the car accident. Mother stated she had been drinking but was not the person driving the car. She again denied that I.J. was in the car, and claimed he was with maternal grandfather. She then went to a funeral on Friday, March 17, 2023, and was" 'jumped'" by her cousin and the cousin's daughter the next morning, which is how she ended up at the emergency shelter.
On March 22, 2023, Petrosyan spoke with father, who stated that mother tested positive for marijuana when she gave birth to I.J. Clark County, Nevada offered them noncourt involved services, but the case was closed because father was considered to be a protective nonoffending parent at the time. Mother "took off" with I.J. when I.J. was nine months old.
On March 22, 2023, Petrosyan exchanged text messages with mother regarding services and drug testing. Mother offered to drug test again and Petrosyan offered mother a referral to drug test that day. Mother declined because she was going to take I.J. to the doctor. Mother then texted Petrosyan that she has a plan for I.J. with a friend, and was going to enroll in school and take parenting classes at the emergency shelter.
An imminent risk team decision making meeting was held on March 24, 2023. Mother, father, Petrosyan, and others were present. Mother explained that when the car accident happened on March 13, 2023, I.J. was with maternal grandfather, and then she went and picked him up. Officers then responded to the disturbance at the intersection where mother was intoxicated. Mother also first denied using cocaine, but then admitted to using it a couple of months ago but not within the last month. Mother agreed to have a drug assessment and seek treatment at Fresno First and sign releases of information for Fresno First and the emergency shelter. I.J. was allowed to remain in her care.
On March 28, 2023, Petrosyan spoke with representatives from the emergency shelter. They stated they did not have concerns about I.J.'s care, and the mother had overall been "good." She had been connected to parenting and domestic violence classes through the shelter but had not started any.
On March 30, 2023, father served mother with notice of a custody hearing court date set for April 18, 2023. Father explained that he learned from law enforcement that mother was in a shelter and went to a possible address, where he saw her walking with I.J. outside and served her. That day, mother called Petrosyan claiming that Petrosyan gave out mother's confidential address and location to father and his wife. She was upset and would not listen to Petrosyan's explanation. She claimed that father's wife assaulted her in front of I.J.
On April 3, 2023, the department received another referral regarding physical abuse of I.J. against mother. Mother was seen flicking her finger at him, popping him on the head, and pushing him back in his stroller. Mother was waiting to be seen in a county building, and when her name was called I.J. stood up. Mother hit I.J. causing him to cry.
On April 4, 2023, the department received another referral regarding the same incident from the prior day. I.J. was running around the county office at one point, and mother aggressively grabbed his arm and slapped it four to five times. The slaps were audible enough to be heard by multiple county employees. I.J. cried briefly then stopped, but it was unknown if there were any marks left on him. On April 10, 2023, the department received another referral regarding mother. Mother reportedly asked the RP," 'Is it okay to hit my child on the hand or the butt?'" This was followed by a video of mother following I.J. and hitting him on the butt with a sandal. There was no known injury.
On April 13, 2023, the emergency shelter informed Petrosyan that mother had rescinded the release of information and the shelter could no longer speak with the department.
On April 18, 2023, father contacted Petrosyan and stated that the custody case was dismissed because mother was not served correctly. Father was not financially able to file for custody again due to having to drive to Fresno from Arizona multiple times, and just wanted I.J. to be removed from mother's care so he would be safe.
Father's wife stated she received photos from an anonymous person of mother engaging in sexual activities with an adult male while I.J. stood next to the bed crying. Petrosyan received and reviewed explicit video footage of what appeared to be mother engaging in sexual acts in the presence of I.J., who was seen crying next to the bed while mother recorded herself and an unknown male having sexual intercourse. Petrosyan contacted mother by text to check in with her, but the message was marked as" '[r]ead'" and mother did not respond.
On April 20, 2023, the department requested and was granted a protective custody warrant on behalf of I.J. Petrosyan attempted to serve the warrant on mother at the emergency shelter, but was told shelter employees could not confirm nor deny mother's whereabouts. The shelter supervisor later called Petrosyan and stated that she should look for mother "elsewhere." The department was unable to locate mother until April 27, 2023, when mother was served with the protective custody warrant and I.J. was detained.
On April 28, 2023, social worker supervisor Sarah Betita-Polanco received a telephone call from mother. Mother reported Petrosyan had forced her to take a drug test in violation of state law and had disclosed her confidential location at an emergency shelter to father. Mother claimed she only tested positive for drugs because someone put drugs in her drink, and she has since tested negative for the department.
The report does not reflect any additional drug testing after the March 20, 2023 test.
When asked about the explicit videos, mother claimed to have received the videos as well. Mother claimed the videos which depict her having sexual intercourse with a man while I.J. stands crying next to the bed do not depict her or I.J., and that she was being set up by a stalker in Las Vegas, Nevada.
Prior Dependency Cases
Mother has an extensive history with child protective services in Clark County, Nevada for abuse and neglect. Mother has a 13-year-old son, D.V., who was removed from her care and adopted by maternal grandmother, who now resides in Las Vegas, Nevada. In 2013, D.V. was two years old when he was found alone, crossing six traffic lanes. He was almost hit by a motorcyclist. He was placed with maternal grandmother and services were offered to mother, but she did not follow through.
In 2015, mother was back in the home of maternal grandmother, and was reported to be punching D.V., now age four, in the chest multiple times a day as a form of discipline because he would not stop crying and she believed she needed to" 'toughen him up.'" In 2018, in Fresno County, D.V. was found wandering outside at 3:30 a.m. looking for his mother. Police arrived and did not find any adults in the home. D.V. was returned to maternal grandmother who had custody of him.
In 2017, mother had a second child, A.F. Both mother and A.F. tested positive for marijuana at the time of A.F.'s birth. Mother was in a domestic violence relationship with A.F.'s father, who set mother and maternal grandmother's car on fire and blew it up. A.F. passed away at two weeks old due to unsafe sleeping arrangements-mother and A.F. were sharing an air mattress.
In 2021, mother gave birth to I.J., and both she and I.J. tested positive for marijuana. When I.J. was eight months old, mother was reportedly using marijuana, methamphetamine, ecstasy, and alcohol with I.J. in her care. It was reported mother had been in arguments with others, leading to her pulling a gun and threating to shoot or pistol whip the other individual while she was holding I.J. Mother also sprayed mace at an individual during an altercation while holding I.J., then passed I.J. off to another person and continued arguing and fighting.
Mother was also reported to have suicidal ideations and had threatened to shoot maternal grandmother because maternal grandmother would not give D.V. back to mother. She was also in a domestic violence relationship with a man who gave her a black eye and was making I.J. hit himself on the head. In 2022, pursuant to two referrals from Riverside County, mother was reported to have unstable housing and was living in a car with I.J. There were allegations mother was also making posts on social media that she was going to kill herself because she could not take care of I.J.
May 1, 2023 Initial Detention Hearing
On May 1, 2023, the juvenile court held an initial detention hearing. The court found the department made a prima facie showing that I.J. is a person described by section 300. The court found continuance of the child in the home of mother was contrary to the child's welfare, and there was substantial danger to the physical health of the child, or the child was suffering severe emotional damage and there was no reasonable means by which to protect the child's physical or emotional health without removing the child from mother's physical custody. The court found reasonable efforts had been made to prevent or eliminate the need for removal and to make it possible for the child to return to the home.
I.J. was removed from mother's custody and temporary placement, care, custody, and control were vested with the department, pending disposition or further order of the juvenile court. Both mother and father were ordered reasonable supervised visits of a minimum of two times per week. Father was ordered to participate in a parenting class, a substance abuse assessment and recommended treatment, random drug testing, and a mental health evaluation and recommended treatment. Mother was ordered to submit to random drug testing pending results of the reunification services bypass panel.
At that time, mother was working toward reunification and was awaiting a recommendation for services from the department due to meeting the requirements for a bypass of family reunification services pursuant to section 361.5, subdivision (b)(11).
May 16, 2023 Jurisdiction Report and July 17, 2023 Addendum
On May 8, 2023, mother enrolled in random drug testing. She tested positive for THC 13 times between May 12 and July 10, 2023. She missed two random tests in May and one in June. Mother reportedly stopped consuming THC on June 11, 2023, and disagreed with the testing results.
On June 27, 2023, mother reported she was participating in parenting classes, a substance abuse evaluation and recommended treatment, and a mental health evaluation and recommended treatment on her own at a community services facility. By July 12, 2023, mother had completed six out of 12 sessions of her parenting classes with parents anonymous. Mother also reported completing substance abuse and mental health assessments and was recommended for group counseling. She reportedly attended classes every Monday and Tuesday, although social workers were not able to contact mother's facilitator to confirm mother's schedule.
Father completed a satisfactory virtual home assessment on June 9, 2023. On May 11, 2023, father reported his last use of marijuana was in April. He had tested on July 11, 2023, and was willing to participate in all offered services to reunify with I.J.
The July 17, 2023 addendum report recommended mother be denied family reunification services pursuant to section 361.5, subdivision (b)(11).
July 17, 2023 Detention Hearing
A contested jurisdiction hearing was held on July 17, 2023. The juvenile court found the allegations in count b-4 against father not true. The court stated it did not believe the allegation that father had a substance abuse problem based upon his use of marijuana was proven true by a preponderance of the evidence.
The juvenile court then found counts b-1 through b-3 had been proven by a preponderance of the evidence. Additionally, the court found "with regard to count [d-1], based upon the information contained in the report and [mother's counsel], this Court considers hearsay evidence every day and based upon the evidence that was presented there is no evidence of anyone manipulating the video. There is evidence that has been provided to this Court that the social worker recognized the individuals on the video from her contacts and from her review of [mother's] social media." The court then found the allegations in count d-1 true.
The juvenile court stated that father had made clear from the beginning that he desired to assume custody, and the court could not find by clear and convincing evidence that placement with father would be detrimental to the safety, protection, physical or emotional well-being of I.J. The court ordered I.J. placed with father, and mother was ordered visitation two times a week. Mother was also ordered to continue her parenting classes and for the department to offer mother random drug testing. The court then scheduled a disposition hearing on October 16, 2023.
October 16, 2023 Addendum Report
On July 17, 2023, upon receiving custody of I.J., father transported I.J. to Arizona. On September 8, 2023, father completed his parenting program. On July 11 and August 28, 2023, father submitted to random drug tests which came back negative for all substances, including marijuana. On July 12, 2023, father participated in a substance abuse assessment, and the assessing specialist reported father would not be recommended for treatment.
On August 11, 2023, mother was dropped from random drug testing due to five or more "no shows." A social worker re-referred mother back to random drug testing but mother had not re-registered. On October 10, 2023, mother completed her parents anonymous support groups. The same day, a social worker called the community services facility at which mother stated she was participating in substance abuse and mental health programs. The facilitator stated mother had only completed a substance abuse assessment on June 27, 2023, and was discharged from the program on August 30, 2023, for unspecified reasons.
On July 18, 2023, mother began supervised virtual visits with I.J. Father was present to set up the laptop for I.J. and encouraged I.J. to talk and interact with mother. Mother in turn made comments throughout the visit that father was" 'distracting'" I.J. and had to be placed in the waiting room and redirected. Mother became" 'argumentative'" and demanded the social worker provide mother with her supervisor's phone number. The social worker terminated the visit, and mother later called the social worker and cussed at her over the phone.
On July 20, 2023, mother participated in a virtual visit with I.J. I.J. did not interact with mother, who stated," 'you don't feel like talking'" and ended the visit early. For the remainder of July, all parties agreed maternal grandmother should be a third-party supervisor for mother during visits. However, due to visits ending early and rules not being followed, the department resumed supervision.
On August 3, 2023, mother did not attend the scheduled visit. On August 9, 2023, mother attended a virtual visit where I.J. was playing with toys in his room. Mother tried to engage with I.J. and father encouraged I.J. to speak and interact with mother. The mother played" 'head, nose, and ears'" with I.J., then spoke with the social workers to complain about I.J.'s placement.
On August 10, 2023, mother attended a virtual visit where I.J. was behind a child's secure gate. Mother said I.J. was" 'in a cage.'" Mother then told social workers she has a restraining order against father's wife and does not want her to be involved in the visits. Mother ended the visit 20 minutes early.
Mother did not actually have a restraining order against father's wife but did attempt to file a harassment petition against her on July 13 and September 14, 2023.
On August 16, 2023, mother did not attend the scheduled visit. On August 17, 2023, mother attended a virtual visit where I.J. was seen crying and laying down in bed. He did not look at mother and was seen reaching out to father. Mother commented that I.J." 'doesn't want to be there'" and offered to read I.J. a book, but then ends the visit 27 minutes early.
On August 23, 2023, mother attended a virtual visit where I.J. cried and covered his face when mother called out to him. Mother became agitated and said," 'you do this in every visit'" and" 'every visit is the same and its [sic] not making mommy happy, do you want to come home?'" I.J. shook his head "no." Mother then told social workers she was unable to engage with I.J. and ended the visit 30 minutes early.
On August 25, 2023, mother was informed she needed to participate in a virtual intake meeting in order to begin scheduling in-person visits. On August 30, 2023, mother attended a virtual visit where I.J. cried and covered his face when she called out to him. Mother said," 'every time I call you, you are never happy.' "
On August 30, 2023, mother's visits were moved to intensive supervised visits with Comprehensive Youth Services. On September 19, 2023, father completed the virtual intake meeting to schedule the mother for in-person visits, but mother had not completed her intake meeting.
On October 4, 2023, the department received an email from the Comprehensive Youth Services program manager, who reported that mother's visit the previous day had been terminated early as she was not in a" 'private setting'" and had used" 'inappropriate language towards (his) staff.'" The program manager reported the mother called the office, and became" 'verbally abusive'... called his staff an 'ugly fat gay b[***]h' and stated ... he has [had] 'similar experiences with [mother] and she refuse[d] to follow directions or take ownership of her behavior.'" The program manager stated the agency would no longer supervise virtual visits for mother.
On October 6, 2023, mother attended a virtual visit with I.J. supervised by the department. Mother attempted to engage with I.J., but I.J. would yell out" 'no.'" Father gave I.J. a snack, and mother stated," 'that's not food.'" I.J. was seen crying and whining, and father stated I.J. will have dinner later. Mother continued to make comments that I.J. is" 'begging'" for food, and the department terminated the visit early because I.J. appeared frustrated and was crying. As of October 16, 2023, mother had not completed a virtual intake meeting to establish in-person visits in Arizona.
On August 23 and September 29, 2023, a social worker made face-to-face contact with I.J. and father in father's home. The home was clean and spacious with plenty of toys and no hazards within reach, and I.J. appeared "happy and giggly" during both visits. I.J. enjoyed engaging and playing with father, and would hug him and laugh hysterically when playing. I.J enjoyed going to daycare and was connected to a pediatrician. Father continued participating in services, tested negative for drugs, and both his wife and paternal family were willing to assist with I.J. when needed.
October 16, 2023 Disposition Hearing
On October 16, 2023, the juvenile court held a disposition hearing. Mother objected to father receiving sole legal custody and asked for greater visitation. The court ruled "[t]here is clear and convincing evidence that continuance of the child in the home of the mother is contrary to the child's welfare and there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if the child were returned home and there are no reasonable means by which the child's physical health can be protected without removing the child from the mother's custody." The court noted reasonable efforts had been made to prevent or eliminate the need for removal, father was a non-custodial parent of I.J. who desired to assume custody, and court supervision of I.J. in the care of father was not necessary.
The juvenile court found I.J. to be a person described under section 300, subdivisions (b) and (d), made a dependent pursuant to section 360, subdivision (d), and committed to the custody and care of the department pursuant to section 361, subdivision (c)(1). The court ordered I.J. removed from the custody of mother and granted sole legal and sole physical custody to father. Mother was granted visitation pursuant to a mediated agreement of between one and four hours per visit, and between one and two visits per month in I.J.'s county of residence.
DISCUSSION
I. Substantial Evidence Supports the Juvenile Court's Jurisdiction Order
Mother argues substantial evidence does not support the juvenile court's jurisdiction order that I.J. falls within the provisions of section 300, subdivisions (b) and (d). Mother argues the sexually explicit video does not constitute sexual abuse as defined by statute, and evidence does not support the finding that I.J. was at substantial risk of suffering serious physical harm or illness due to mother's mental illness, substance abuse, domestic violence relationships or disciplinary methods. We find substantial evidence supports the juvenile court's finding that mother's substance abuse, mental illness and disciplinary methods create a substantial risk that I.J. would suffer severe physical harm or illness in the future, and on that basis affirm the court's jurisdictional finding.
A. Legal Standard
"At the jurisdictional hearing ... [p]roof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300." (§ 355, subd. (a).) "Section 300, subdivisions (a) through (j), establishes several bases for dependency jurisdiction, any one of which is sufficient to establish jurisdiction." (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045.)
"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 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." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
We review the jurisdictional findings of the juvenile court for substantial evidence. (In re Isabella F. (2014) 226 Cal.App.4th 128, 137.) "In reviewing the sufficiency of the evidence, our review requires that all reasonable inferences be given to support the findings and orders of the juvenile court and the record must be viewed in the light most favorable to those orders. [Citation.] Those findings and orders may not be disturbed if they are supported by substantial evidence. [Citations.] ... 'Issues of fact and credibility are questions [of fact] for the trial court, not this court. [Citation.] "The rule is clear that the power of the appellate courts begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact." [Citation.]'" (In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1487 (Samkirtana S.).)
B. Analysis
Section 300, Subdivision (d) Allegation
Under section 300, subdivision (d), a child comes within the juvenile court's jurisdiction when "[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by the child's parent or guardian or a member of the child's household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse."
Appellant argues the department alleged sexual abuse "as defined in subdivision (b) of section 11165.1 of the Penal Code," and therefore there must be substantial evidence of the conduct explicitly listed in Penal Code section 11165.1, subdivision (b). The argument is not compelling. Primarily, section 300, subdivision (d) does not make such a narrow distinction. The statute refers to Penal Code section 11165.1 in its entirety; therefore, we look to the entire statute to determine whether substantial evidence supports the juvenile court's jurisdictional finding.
Likewise, Penal Code section 11165.1, subdivision (b) states, "[c]onduct described as 'sexual assault' includes, but is not limited to, all of the following ._" (Italics added.) Even if we look only to Penal Code section 11165.1, subdivision (b) to determine whether mother's conduct in this case qualified as "sexual assault," the conduct listed in Penal Code section 11165.1, subdivision (b)(1) through (5) is not exclusive.
In re L.O. (2021) 67 Cal.App.5th 227 (L.O.) is informative. In L.O., the minor had shown sexualized behaviors, such as humping and moaning. (Id. at p. 233.) The minor claimed he had seen his father and his father's girlfriend having sex and was mimicking what they did. (Id. at p. 234.) The San Bernardino County Children and Family Services (CFS) filed a petition on behalf of the minor in part pursuant to section 300, subdivision (d), alleging the father exposed the minor to inappropriate sexualized behaviors. (Id. at p. 234.) The juvenile court ultimately found the sexual abuse allegation against the father true and removed the minor from his custody. (Id. at p. 236.)
The appellate court noted "the only possible enumerated offense which can qualify as 'sexual assault or sexual exploitation' under Penal Code section 11165.1 is child molestation as set forth in Penal Code section 647.6., subdivision (a). (See Pen. Code, § 11165.1, subd. (a).) That provision makes it a crime to 'annoy[]' or 'molest[]' any child under the age of 18. (Pen. Code, § 647.6, subd. (a)(1).)" (L.O., supra, 67 Cal.App.5th at p. 242.)
" '" 'Annoy and molest'"' in the context of this provision are' "synonymous and mean to disturb or irritate, especially by continued or repeated acts; to vex, to trouble; to irk; or to offend."' [Citation.] 'The forbidden annoyance or molestation is not concerned with the child's state of mind, but rather refers to the defendant's objectionable acts that constitute the offense.' [Citation.] The defendant's conduct must be '" 'motivated by an unnatural or abnormal sexual interest.'"' [Citation.] Further, it must be conduct which would irritate or disturb a normal person. [Citation.] 'For the most part, Penal Code section 647.6 has been applied to incidents of explicit sexual conduct .... [¶] In some instances, however, the proscribed conduct was more ambiguous.'" (L.O., supra, 67 Cal.App.5th at p. 242.) The "abnormal sexual interest" in this context means a sexual interest in children. (People v. Lopez (1998) 19 Cal.4th 282, 290.)
The appellate court found substantial evidence did not support the section 300, subdivision (d) allegation against the father. (L.O., supra, 67 Cal.App.5th at pp. 242243.) The court noted there was no evidence presented that the minor's exposure to sexual conduct was more than an accident. (Id. at p. 243.) There was no evidence the father had intentionally exposed the minor to sexual conduct because the father was" 'motivated by an unnatural or abnormal sexual interest'" or that the father intentionally exposed the minor to sexual activities between the father and his girlfriend. (Id. at pp. 242-243.) Other than the minor's statement, CFS did not know who or what the minor had observed. (Id. at p. 243.) The appellate court concluded "[a]lthough [f]ather may have inadvertently exposed [the minor] to sexual conduct with his girlfriend, there is no evidence that he had intentionally exposed [the minor] to the behavior." (Ibid.)
Much like in L.O., the section 300, subdivision (d) allegation against mother does not allege that mother, or anyone with access to I.J., touched I.J. inappropriately. In this case, however, mother is alleged to have engaged in sexual intercourse with an adult male, while I.J. is standing next to the bed crying. Unlike in L.O., there is a video of the act which was sent to father and his wife. After reviewing the video, Petrosyan indicated that it appeared mother recorded the video, and when Petrosyan attempted to contact mother about the video, the mother did not respond.
Mother argues there is not enough information about the video, who filmed it, or why I.J. was crying. Mother further argues that the exposure did not adversely affect I.J. because unlike the minor in L.O., I.J. has not exhibited sexualized behaviors.
Insofar as mother challenges the credibility of the video or Petrosyan's description of it," '[i]ssues of fact and credibility are questions [of fact] for the trial court, not this court. [Citation.]'" (Samkirtana S., supra, 222 Cal.App.3d at p. 1487.) The juvenile court found Petrosyan's description of the video, including her description that mother was recording herself, to be credible when the court found a preponderance of the evidence supported the section 300, subdivision (d) allegation against mother.
Likewise, "[t]he absence of physical evidence of sexual abuse does not preclude a finding of sexual abuse." (L.O., supra, 67 Cal.App.5th at pp. 241-242.) The fact that I.J. was not observed engaging in sexually inappropriate behavior does not mean he was not sexually abused.
Like in L.O., we find that the only possible enumerated offense which can qualify as sexual assault or sexual exploitation under Penal Code section 11165.1 is child molestation as set forth in Penal Code section 647.6., subdivision (a). (L.O., supra, 67 Cal.App.5th at 242.) However, while substantial evidence supports a finding that mother's conduct would "irritate or disturb a normal person," we cannot find that there is substantial evidence that mother engaged in her behavior due to an "abnormal sexual interest in children." (People v. Lopez, supra, 19 Cal.4th at p. 290, italics added.)
For Penal Code section 647.6, it is not enough that conduct be irritating, it must be motivated by unnatural or abnormal sexual interest in children. (People v. Kongs (1994) 30 Cal.App.4th 1741, 1750-1751.) In Kongs, for example, the defendant was found guilty of violating section 647.6 for asking girls to lift their legs and knees and taking photos of their panties during photo shoots. (Id. at pp. 1747, 1751.) The appellate court found the defendant's conduct was "motivated by unnatural or abnormal sexual interest in children," particularly because the defendant told police he received a "roller-coaster-like thrill from his activities, and described it as a 'fetish.'" (Id. at pp. 1750-1751.)
The department argues mother's conduct was likely motivated by a sexual interest in children by the act of recording the incident, because she would be able to review the video indefinitely. In reviewing the evidence, we may make reasonable inferences in support of the findings. (Samkirtana S., supra, 222 Cal.App.3d at p. 1487.) We find it is not reasonable to infer that mother's conduct, even in recording the video and, assuming arguendo, mother disseminated it to father and father's wife, is indicative of an unnatural or abnormal sexual interest in children.
Mother's conduct, while clearly sexual in nature, did not actively involve or target I.J. There is no evidence that mother called I.J. into the room with the intent to expose I.J. to sexually explicit behavior or involve him in the act. It is reasonable to infer that mother was aware I.J. was next to the bed because I.J. was crying, but mother's lack of care, while cruel, is not indicative of a sexual interest in I.J. or children in general. That is not to say that mother's conduct was not disturbing or neglectful, but it did not amount to substantial evidence of a violation of Penal Code section 647.6, and therefore, there is not substantial evidence to support the section 300, subdivision (d) allegation that I.J. was sexually abused as defined by Penal Code section 11165.1.
Section 300, Subdivision (b)(1) Allegations
Under section 300, subdivision (b)(1), a child comes within the juvenile court's jurisdiction when, in relevant part, "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of ... [¶] ... [¶] [t]he inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (§ 300, subd. (b)(1)(D).) "The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (§ 300, subd. (b)(3).)
" 'While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]'" (In re David H. (2008) 165 Cal.App.4th 1626, 1641-1642.)
"[E]vidence of past events may have some probative value in considering current conditions. But under section 300, subdivision (b) this is only true if circumstances existing at the time of the hearing make it likely the children will suffer the same type of 'serious physical harm or illness' in the future. This is so because under subdivision (b) a child may be considered dependent 'only so long as is necessary' to protect the child from risk of suffering serious physical harm or illness. For this reason, 'the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm, "[t]here must be some reason to believe the acts may continue in the future." '" (In re Janet T. (2001) 93 Cal.App.4th 377, 388.)
Substance Abuse
The department alleged in count b-1 that mother had a substance abuse problem that negatively affected her ability to provide I.J. with adequate care, supervision, and protection. To prove this allegation, the department must establish "(1) substance abuse (2) makes a parent or guardian unable to provide regular care for a child and (3) this inability has caused the child to suffer serious physical harm or illness or creates a substantial risk of such harm or illness." (In re N.R. (2023) 15 Cal.5th 520, 558.) "Substance abuse" as it appears in section 300, subdivision (b)(1)(D), bears the ordinary meaning of "excessive use of drugs or alcohol." (N.R., at p. 540.)
In In re Rebecca C. (2014) 228 Cal.App.4th 720, the appellate court found that evidence the mother used drugs over a period of years, was involved in the criminal court system and dependency court system as a result of her drug use, was involved in a drug program and relapsed, lied about her use of drugs, rationalized her use of drugs, and admitted to having a substance abuse problem was ample to support the dependency court's finding that the mother suffered from a substance problem within the meaning of section 300, subdivision (b.) (Rebecca C., at pp. 726-727.)
In this case, substantial evidence supports the juvenile court's finding that mother had a substance abuse problem. When mother's second child was born, both mother and child tested positive for marijuana, indicating that mother had been abusing marijuana as early as 2017. In 2021, when mother gave birth to I.J., both she and I.J. also tested positive for marijuana. Mother was also allegedly using marijuana, methamphetamine, ecstasy, and alcohol with I.J. in her care when I.J. was around eight months old.
On March 13, 2023, the mother was "extremely intoxicated" and was in a car accident where her ex-boyfriend, who was also intoxicated, was driving. I.J. was in mother's care at the time, a fact mother lied about repeatedly to the department, and it is reasonable to infer I.J. was involved in the car accident. On March 20, 2023, the department received a referral where the RP indicated mother was using crystal methamphetamine and cocaine. That day, mother tested positive for cocaine, marijuana, and alcohol. Mother denied using cocaine and claimed someone must have put it in her drink the prior Friday (three days prior). Mother denied ever intentionally using cocaine, then admitted to using it once, then admitted to using it multiple times, as recently as a couple of months prior.
Mother tested positive for marijuana numerous times between March 20 and July 14, 2023. Mother tested negative on June 14, July 17, July 21, and July 28, 2023, but otherwise missed 10 tests between July 18 and August 10, 2023, before being dropped from the program.
Much like in Rebecca C., mother had a history of using drugs for years. Evidence was presented that mother used not only alcohol and marijuana, but cocaine, methamphetamine, and ecstasy in the past. Mother lied about her drug use when she denied using cocaine even though she tested positive and rationalized her positive test as someone "spiking" her drink days prior. Her story about how often she used cocaine also changed multiple times. Finally, mother failed to follow through with substance abuse treatment, taking an assessment on June 27, 2023, then being discharged from the program for unspecified reasons on August 30, 2023. She also failed to continue random drug testing. These facts are ample evidence to support the juvenile court's finding that mother had a substance abuse problem.
Likewise, there is substantial evidence mother's substance abuse problem placed I.J. at risk of serious physical harm or illness. Mother's previous abuse of marijuana resulted in I.J. testing positive for marijuana at birth. Mother's substance abuse problem had placed I.J. at serious risk of physical injury when on March 13, 2023, mother rode in a car with her ex-boyfriend and I.J. when both mother and her ex-boyfriend were impaired, and her ex-boyfriend crashed and wrecked the car. Her ex-boyfriend then proceeded to assault mother in front of I.J. It is reasonable for the juvenile court to infer that mother made the decision to put I.J. in a car with an impaired driver at least in part because of her own extreme intoxication.
Mother continuously failed to address her substance abuse problem, and by the October 16, 2023 disposition hearing, she ceased participating in random drug testing and was discharged from the substance abuse program without completing it. Because mother's substance abuse problem remained ongoing and untreated, substantial evidence supports the juvenile court's finding that mother's substance abuse problem puts I.J. at risk of future serious physical injury or illness. (In re Janet T., supra, 93 Cal.App.4th at p. 388.)
Domestic Violence
The department alleged in count b-1 that mother exposed I.J. to a hostile and unsafe environment due to ongoing domestic violence. "Exposing children to recurring domestic violence may be sufficient to establish jurisdiction under section 300, subdivision (b). [Citations.] Domestic violence impacts children even if they are not the ones being physically abused, 'because they see and hear the violence and the screaming.'" (In re T.V. (2013) 217 Cal.App.4th 126, 134.)
Mother argues that she should not be punished for being a victim of domestic violence, citing the Fourth District Court of Appeal:
"We note in closing this court has observed a recent, and troubling trend, of what we perceive as mothers being punished as victims of domestic violence. [Citations.] We recognize issues of domestic violence often put children at risk. The cases we refer to, however, are akin to this one, where children are brought into the dependency system because of domestic violence between the mother and a romantic partner. [Citation.] Even after a mother manages to distance herself from the abuser, however, [the department] and the juvenile court continue to use the history of domestic violence as a basis to remove the children. Indeed, it seems as if once a woman is battered, she will forever be faced with losing her children. This is not the legal test. 'When evaluating the complexity of domestic violence relationships, not every case will be the same. Unlike drug and alcohol addiction, there are no Alcoholics Anonymous (AA) meeting cards, coins, or clean tests to measure success [as a victim of domestic abuse].'" (In reMa.V (2021) 64 Cal.App.5th 11, 25-26.)
In Ma.V., the mother had ended the relationship with the perpetrator of the violence against her, had no contact with the perpetrator 10 months later, and was not engaged in any new romantic relationships. (Ma.V., supra, 64 Cal.App.5th at p. 23.)
In L.O., the appellate court found the record supported the finding that the minor faced an ongoing risk of harm based on the father's ongoing violent and contentious behavior when dealing with the mother. (L.O., supra, 67 Cal.App.5th at p. 240.) The father and mother were "involved in an acrimonious family law matter and had domestic violence issues during custody exchanges." (Ibid.) Even after the father had separated from the mother, he continued to engage in altercations with the mother in the minor's presence. (Ibid.) Likewise, because the father expressed an interest in having custody of, and an ongoing relationship with the minor, the father was likely to encounter the mother in the minor's presence in the foreseeable future. (Ibid.) Finally, the father failed to even acknowledge his past violent behavior, let alone express remorse or show any insight regarding it, which exposed the minor to a risk that the father will once against attack the mother in the minor's presence. (Ibid.)
In this case, mother had a history of exposing I.J. to severe domestic violence. The father of mother's second child lit the mother and maternal grandmother's car on fire, causing it to explode. In 2022, she was with a partner who gave her a black eye and made I.J. hit himself on the head. Mother stated she moved to Fresno to get away from an abusive relationship. In the March 20, 2023 referral, RP stated mother was in a relationship with a partner who "tried to throw [mother] and [I.J.] off of a cliff." On March 13, 2023, mother's ex-boyfriend and presumably the same partner mentioned in the March 20, 2023 referral, choked mother at an intersection after causing a car accident while I.J. was in mother's care. Mother was also "jumped" by her female cousin and the cousin's daughter on March 17, 2023.
However, apart from the events prior to, and in March 2023, the record does not indicate mother maintained these violent relationships after going to the emergency shelter. The record does not show mother continued or was at risk of restarting the relationship with her ex-boyfriend or was engaged in any violent relationships at the time of the October 16, 2023 disposition hearing, seven months after the March 13, 2023 incident. Therefore, we cannot say that substantial evidence supports a finding that mother exposed I.J. to ongoing domestic violence that placed I.J. at serious future risk of physical injury or illness.
Mental Illness
The department alleged in count b-2 that mother has untreated mental health issues that negatively affect her ability to provide I.J. with adequate care, supervision, and protection. The department alleged in count b-3 that mother was aggressive and hostile against I.J. As a result, the department argued, there was a substantial risk that I.J. would suffer serious physical harm or illness in mother's care.
Section 300, subdivision (b) does not describe a formal procedure to determine if a parent suffers from a "mental illness" and evidence from expert witnesses is not needed before a court can take jurisdiction over a child. (In re Khalid H. (1992) 6 Cal.App.4th 733, 736-737.) Nonetheless, case law has defined "mentally ill persons" as those who "are of such mental condition that they are in need of supervision, treatment, care or restraint" or "are of such mental condition that they are dangerous to themselves or to the person or property of others ._" (In re Carmaleta B. (1978) 21 Cal.3d 482, 490, superseded by statute in In re Cody W. (1994) 31 Cal.App.4th 221, 224-225.)
Mother herself stated that she was diagnosed with bipolar II, but had never received treatment. Because we do not reassess credibility, we find mother's statement constitutes substantial evidence to support the juvenile court's finding that mother suffered from a mental illness. (Samkirtana S., supra, 222 Cal.App.3d at p. 1487.)
The record shows mother has a history of suicidal ideation, and in 2022 there were allegations she threatened to kill herself because she could not take care of I.J. Mother's mental illness remains untreated. On June 27, 2023, mother claimed she was receiving substance abuse and mental health services at a local community services center. However, this was confirmed to be a lie by social workers who on October 10, 2023, spoke with a facilitator at the center who stated that mother only completed a substance abuse assessment on June 27, 2023, and was discharged from the program on August 30, 2023, for unspecified reasons.
On March 20, 2023, RP described mother as" 'very Bipolar'" and that she would "go into a rage" if anyone told her anything. RP also cautioned mother would flee if child protective services became involved, which is exactly what happened on April 20, 2023, when mother could not be located at the emergency shelter. Mother was not located until April 27, 2023.
Mother's "rages" are likewise well documented. When I.J. was eight months old, mother was reported to have been in an argument with an individual where she pulled out a gun and threatened shoot or pistol whip the individual while holding I.J. In another altercation, mother sprayed mace at an individual while holding I.J., then handed I.J. to another person and continued arguing and fighting. Mother threatened to shoot maternal grandmother because maternal grandmother would not give D.V. back to mother.
On July 18, 2023, mother began supervised virtual visitation with I.J. The first visit was terminated by the social worker because mother became argumentative and demanded the supervisor's phone number. Mother later called the social worker and cussed at her over the phone.
On August 30, 2023, mother's virtual visits were moved to intensive supervised visits with Comprehensive Youth Services, a third-party provider. On October 4, 2023, Comprehensive Youth Services terminated their supervision because mother was using inappropriate language toward staff and had called the office while being verbally abusive and cursed at staff. The program manager commented he had a similar experience with mother, who refused to follow directions or take ownership of her behavior.
Substantial evidence supports the juvenile court's finding that mother's mental illness creates a substantial risk that I.J. would suffer serious physical harm or illness in the future. Mother admitted she suffered from bipolar II disorder but resisted and lied about receiving treatment. Mother has a history of suicidal ideation and violent outbursts both while I.J. was in her care and in her presence, including allegations of assault. These violent outbursts continued throughout the proceedings in the underlying petition, jeopardizing mother's ability to maintain contact with I.J. Mother has likewise shown she is willing to sever contact and flee with I.J. if the opportunity presents itself. Taken together, the court could reasonably conclude that mother's untreated mental illness could place I.J. at risk of serious physical injury should mother abscond with I.J. and subsequently experience a suicidal episode or a fit of rage while I.J. is in her care.
Discipline
Finally, the department alleged in count b-3 that mother failed to adequately care, supervise, and protect I.J., and has inappropriately disciplined him. The department alleged mother's actions toward I.J. were aggressive and hostile, that she was observed flicking I.J.'s head and pushing him into his stroller, and that she had been hitting him since he was born.
Section 300, subdivision (a) expressly provides that" 'serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury."
"Although this proviso limits itself to the 'purposes of ... subdivision [(a)],' the exception to dependency jurisdiction for reasonable discipline applies across the board to all of section 300's jurisdictional grounds for two reasons. [Citation.] First, the Legislature chose to use the term 'serious physical harm' throughout section 300.. Second, the Legislature provided, in the paragraph of section 300 following the enumeration of the last statutory basis for dependency jurisdiction, that '[i]t is the intent of the Legislature that nothing in this section . prohibit the use of reasonable methods of parental discipline, or prescribe a particular method of parenting.'" (In re D.M. (2015) 242 Cal.App.4th 634, 640.)
"' "[A] parent has a right to reasonably discipline his or her child and may administer reasonable punishment .."' [Citations.] A parent acting within the boundaries of this right cannot be found liable for a tort [citation]; guilty of a crime [citations]; or subject to registration as a child abuser [citation]. [¶] Whether a parent's use of discipline on a particular occasion falls within (or instead exceeds) the scope of this parental right to discipline turns on three considerations: (1) whether the parents conduct is genuinely disciplinary; (2) whether the punishment is 'necess[ary]' (that is, whether the discipline was 'warranted by the circumstances'); and (3) 'whether the amount of punishment was reasonable or excessive.'" (In re D.M., supra, 242 Cal.App.4th at pp. 640-641.)
Mother has a history of inappropriately disciplining her children. Mother would punch her first child, D.V., in the chest multiple times per day when D.V. was only four years old to" 'toughen him up.'" RP reported that mother had been hitting I.J. since he was born, and that mother stated she hit I.J. because" '[h]e is bad and keeps doing things.' "
On April 3, 2023, the department received a referral stating mother was seen flicking her fingers at I.J., popping him on the head, pushing him back into his stroller, and hitting him causing him to cry. On April 4, 2023, the department received another referral that mother was observed aggressively grabbing I.J.'s arm and slapping it four to five times so audibly the slaps were heard by multiple people in the building.
The April 10, 2023 referral where mother reportedly hit I.J. on the butt with a sandal falls within the express exception under section 300, subdivision (a) and we therefore do not include the incident in our substantial evidence analysis.
The record further shows mother's disciplinary methods left a lasting, negative impact on I.J., as evidenced by mother's virtual visits with I.J. Often mother would be argumentative with staff or berate I.J. because I.J. would not engage with her. On August 23, 2023, I.J. cried and covered his face when mother called out to him, resulting in mother becoming agitated and saying," 'you do this in every visit'" and" 'every visit is the same and its [sic] not making mommy happy, do you want to come home?'" I.J. shook his head "no." I.J. cried and covered his face in subsequent visits as well.
"Corporal punishment presents a far greater risk of injury-and serious injury-to a toddler than it does to an [older child]." (In re D.B. (2018) 26 Cal.App.5th 320, 332333.) I.J. was only two years old at the time of the underlying proceedings. Mother already had a child removed from her care due to inappropriate "discipline" but continued to engage in corporal punishment with I.J. Mother slapping him loudly on the arm in public, hitting him in the head, and pushing him, paired with mother's agitation and I.J.'s fear of mother and desire not to be returned to mother, are substantial evidence supporting the juvenile court's finding that mother failed to adequately supervise or protect I.J. due to inappropriate discipline, and that there is a substantial risk I.J. would suffer serious physical harm or illness in the future as a result.
Because we find several of the department's section 300 enumerated bases are supported by substantial evidence, we affirm the juvenile court's finding of jurisdiction over I.J. (In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
II. The Juvenile Court Did Not Err When Placing I.J. with Father, Ordering Visitation, and Terminating Jurisdiction
Mother argues the juvenile court erred by removing I.J. from her custody, and the restrictions on her visitation denied her a meaningful opportunity to maintain a relationship with I.J. We find substantial evidence supports the juvenile court's order placing I.J. with father, and the court did not abuse its discretion ordering limited supervised visitation and terminating jurisdiction.
A. Legal Standard
Section 361, subdivision (c) prohibits the removal of a child from the physical custody of his or her parent unless the juvenile court finds clear and convincing evidence certain enumerated circumstances. In relevant part, a child may be removed if "[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] ._" (§ 361, subd. (c)(1).)
"The governing statute, section 361, subdivision (c), is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no 'reasonable means' by which the child can be protected without removal." (In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
" '[O]n appeal, the substantial evidence test is the appropriate standard of review. Thus, in assessing this assignment of error, "the substantial evidence test applies to determine the existence of the clear and convincing standard of proof .." [Citation.]'" (In re Henry V. (2004) 119 Cal.App.4th 522, 529.)
Section 361.2, subdivision (a) requires the juvenile court determine "whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child...."
Section 361.2, subdivision (b)(1) further states "[i]f the court places the child with that parent, the court may . [¶] [o]rder that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court.."
"[E]ven if reunification services are offered to the previously custodial parent, once the dependency court determines that further supervision of the children in the home of the previously noncustodial parent is not required, the failure to provide adequate reunification services to the other parent does not prevent the court from terminating jurisdiction under section 361.2." (In re Janee W (2006) 140 Cal.App.4th 1444, 14541455.)
We likewise review the juvenile court's orders concerning visitation for abuse of discretion. (In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558.) We will reverse only if the juvenile court"' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination ._" '" (In re Jaden E. (2014) 229 Cal.App.4th 1277, 1288.) "Accordingly, we will not reverse the juvenile court's decision unless that court' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination ._" [Citation.]'" (Ibid.) As to custody and visitation orders, the test has been articulated as "whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child." (In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1337, overruled on another ground in In re Marriage of Burgess (1996) 13 Cal.4th 25, 37, fn. 9.)
"[T]he standard for terminating jurisdiction in a case under section 361.2, subdivision (a), is whether there exists a need for continued supervision." (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1502, overturned on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 203; § 364, subd. (c).) We review the juvenile court's decision to terminate dependency jurisdiction pursuant to section 361.2 for abuse of discretion. (In re Austin P (2004) 118 Cal.App.4th 1124, 1134-1135.)
B. Analysis
Removal From Mother's Custody
The juvenile court made an express finding that there was clear and convincing evidence that continuance of the child in the home of mother was contrary to the child's welfare and there would be a substantial danger to his physical health, safety, protection, or physical or emotional well-being, and there is no reasonable means by which the child's physical health can be protected without removal. The court's finding is supported by substantial evidence.
As discussed above, mother's substance abuse problem, untreated mental illness, and improper discipline all placed I.J. at substantial risk of serious physical harm in the future. Likewise, while the sexually explicit video did not amount to sexual abuse under the letter of the law, it certainly contributed to the court's clear and convincing finding. It showed I.J. crying at mother's bedside while she filmed herself engaging in sexual relations, and when confronted with the video, the mother initially did not respond, then denied not only filming it, but that it was her and I.J. depicted in the video. Mother then claimed that she was being set up by a stalker in Las Vegas, Nevada. Mother's refusal to even acknowledge the harm she caused by neglecting I.J. was evidence that I.J. remaining in her physical custody would be a substantial danger to his emotional well-being.
Mother previously attempted to abscond with I.J., and it took seven days to locate her and take I.J. into custody. Mother lied about participating in services. She also became argumentative with staff, calling and cursing at both staff of the department, and later staff at the Comprehensive Youth Services program responsible for supervising mother's visitation, to the point where the program terminated its involvement. The risk that mother would take I.J. and disappear, and mother's struggle with participating in services are substantial evidence supporting the juvenile court's finding that there are no reasonable means by which I.J.'s physical health can be protected without removal.
Placement with Father
The juvenile court ruled that it could not find by clear and convincing evidence that placement with father would be detrimental to the safety, protection, or physical or emotional well-being of I.J. The court made this finding even though placement with father would mean I.J. would reside out of state.
An out-of-state move can be the basis for a detriment finding. In In re Luke M. (2003) 107 Cal.App.4th 1412, the juvenile court declined to place two minors with their father in Ohio because moving the children would separate them from their siblings. (Id. at p. 1419.) The record was rife with evidence of detriment-the minors wanted to stay in California, were deeply bonded with their siblings, and social workers and counselors believed the move would negatively affect the minors' behavior. (Id. at pp. 1426-1427.) The juvenile court commented "the record would not come 'close to revealing the depth of [one of the minor's] reaction to the prospect of being separated.'" (Id. at p. 1427.)
There is no comparable evidence in the record in this case. To the contrary, the record shows father sought custody, stopped smoking marijuana, complied with all court orders, participated in court-ordered services, and had an adequate home and the support of his wife and paternal family. I.J. enjoyed spending time with his father and living in father's home, and showed a preference against returning to mother when he shook his head "no" when mother asked if he wanted to come home. The only concern the department had against father was his self-reported marijuana usage, and that concern was allayed when father stopped using marijuana and diligently and repeatedly tested negative for drugs. Therefore, substantial evidence supports the juvenile court's ruling that placement with father would not be detrimental to I.J.
Visitation and Termination of Jurisdiction.
Mother finally argues the visitation ordered was unreasonable, that supervised visits were not necessary, and the number and duration of the visits were too limited for her to maintain a relationship with I.J.
First, the record shows supervised visitation was necessary. Even during virtual visits, mother would become agitated to the point where she would need to be pulled aside by the supervising social worker and redirected. When maternal grandmother attempted to supervise visits in July 2023, visits were ending early and rules were not being followed, resulting in the department resuming supervision. When mother participated in intensive supervised visits with Comprehensive Youth Services, she refused to follow directions and became so combative and insulting toward staff that the program terminated its supervision of mother's visits. I.J. also became progressively more upset at seeing mother, and cried, covered his face and yelled "no" when mother tried to engage with him.
The duration and quantity of visits was likewise reasonable. Prior to the October 16, 2024 hearing, mother was visiting I.J. twice a week for one hour. However, mother ended many of these visits early, and some visits were ended early by a social worker because of mother's behavior or because I.J. was crying. Mother was also informed on August 25, 2023, that she needed to participate in a virtual intake meeting in order to begin scheduling in-person visits. Father completed this meeting on September 19, 2023. As of the October 16, 2023 report, mother had not completed the meeting.
Due to mother's behavior during virtual visits and failure to complete the virtual intake appointment to even schedule in-person visits, the juvenile court did not abuse its discretion when it limited mother to supervised visitation no more than twice a month for no more than four hours each visit in I.J.'s county of residence.
Finally, the juvenile court did not abuse its discretion when it terminated jurisdiction pursuant to section 361.2, subdivision (b). Father's living circumstances, I.J.'s behavior in father's custody, and father's compliance with court orders and services was evidence that there was no need for continued supervision.
DISPOSITION
We strike the d-1 allegation of the petition. As modified, the juvenile court's order is affirmed.
[*]Before Meehan, Acting P. J., Snauffer, J. and DeSantos, J.