Opinion
B295646
02-20-2020
In re J.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.G., SR., et al., Defendants and Appellants.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant J.G., Sr. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant T.C. Mary C. Wickham, County Counsel, Kristine P. Miles and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP04971A, 18CCJP04971B, 18CCJP04971C, 18CCJP04971D) APPEALS from orders of the Superior Court of Los Angeles County, Martha A. Matthews, Judge. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant J.G., Sr. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant T.C. Mary C. Wickham, County Counsel, Kristine P. Miles and Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
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T.C. (mother) and J.G., Sr., (father) separately appeal from the juvenile court's orders taking jurisdiction over mother's four children, two of whom are father's sons, and removing them from parental custody. We affirm.
BACKGROUND
I. The family
Mother has four children, A.D., Z.C., J.G., and Z.G. Father is the presumed father of the youngest two children. The children are unruly and hit each other. A.D. in particular, appears to suffer from attention deficit hyperactivity disorder and at times is defiant, argumentative, and violent.
Mother and father were not in a relationship. They had an oral agreement to alternate custody of J.G. and Z.G. Mother moved frequently between Long Beach, California and Las Vegas, Nevada, and father moved from Las Vegas to Bakersfield, California.
Mother has a history of encounters with the Department of Children and Family Services (DCFS), starting in September 2010 when the agency received a report that she and A.D.'s father often engaged in domestic violence in the child's presence. A.D. was detained and mother participated in a case plan until 2013. Mother also admitted having had a history of domestic violence with father. II. Adjudication
DCFS filed its original petition under Welfare and Institutions Code section 300, subdivisions (a) and (b) in August 2018 naming mother only. The agency amended the petition to add allegations of father's conduct, among other things. The petition at issue, filed on December 17, 2018, alleged two counts under subdivision (a) of section 300, four counts under subdivision (b)(1), and one count under subdivision (j). As is relevant to this appeal, the petition alleged:
All further statutory references are to the Welfare and Institutions Code.
Count a-2: Father physically abused A.D. and Z.C., which places half-siblings J.G. and Z.G. at risk of physical harm. Mother failed to protect the children. (§ 300, subd. (a).)
Count b-2: Mother has a history of inadequate supervision of her four children which has resulted in serious accidents and injury. (§ 300, subd. (b)(1).)
At the jurisdiction hearing, the juvenile court sustained mother's and father's section 355 objections to DCFS's exhibit 8, the case history and attachments from the Clark County Department of Family Services (CCDFS). The court stated that it would not use exhibit 8, or any portion of any other exhibit that refers to exhibit 8, "as the sole basis for sustaining anything." At the close of the hearing, the court amended and sustained the petition under section 300, subdivisions (a) and (b)(1). III. Disposition
Section 355, subdivision (c)(1) provides, with certain exceptions, that "[i]f a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based." (Italics added.)
After declaring the children dependents, the juvenile court removed them from both parents' custody. The court fashioned reunification plans for both parents and awarded them monitored visitation. Mother and father separately appealed. We will discuss additional facts in connection with the contentions on appeal.
DISCUSSION
I. Substantial evidence supports the jurisdictional finding against father under count a-2.
A. The allegations
The juvenile court found the following allegations in count a-2 to be true:
"On or about 10/29/2017, [father] struck [Z.C.], who was three years of age at the time, in the face and threw him on a bed resulting in the child sustaining marks and bruises and [a] displaced oblique tibia fracture. [Father] also physically abused the child [A.D.] by striking his face and body. Following this incident, mother allowed the children [J.G.] and [Z.G] to be in [father]'s care and supervision. . . . [Father]'s physical abuse of . . . [Z.C.] and [A.D.] places siblings [J.G.] and [Z.G.] at risk of physical harm, damage and danger. Such physical abuse by the father . . . and mother['s] . . . failure to protect endangers the children's physical health and safety and places the children at risk of serious physical harm." (See § 300, subd. (a).)
B. Additional facts
DCFS originally learned from CCDFS that in April 2017, A.D. reported that father forced A.D.'s leg up to where his head hit his knee, and then spread the child's legs open and pushed them down "very far." The child also disclosed that father had hurt him before and stated that father regularly hit him with his hand all over.
CCDFS also informed DCFS that it opened a case against father in November 2017, after father threw Z.C. onto the bed and broke the child's leg. Mother contacted 911. By the time police arrived, father had fled. Mother told officers that father left because he was scared. Two days later, mother and the children moved back to Los Angeles County and father moved to Bakersfield, California.
DCFS conducted its own investigation of these allegations. Father admitted to DCFS social workers that he tried to massage and stretch A.D.'s leg out and that he tossed Z.C. onto the bed and Z.C. fell off. Father added that he did not like to hurt children "because of what happened." Mother told DCFS that despite her agreement with CCDFS to be protective of her children, she believed father did not care for her son, Z.C. and that she did worry about the children's safety in father's custody, but she "was going through a lot."
A.D. and Z.C. independently told DCFS about father's conduct. A.D. stated, "[Father] is mean. He broke my brother's leg. He flipped him on the bed and punched him in the stomach." Asked why father did this, the child responded, that Z.C. "was kissing the floor. Actually, no, he was kissing me on the cheek. He didn't want him to kiss me." A.D. added that father would "hit me. . . . Everywhere. He would punch me. He would smack me in the face."
Z.C. stated he did not like father because father had broken his leg. Z.C. explained that father "slammed" him on the bed. He added that J.G. was small and couldn't fight father.
C. Governing legal principles and analysis
The juvenile court's jurisdictional findings under section 300 must be made by a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) We review jurisdictional orders for substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.) We view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the court's findings and orders (In re I.J. (2013) 56 Cal.4th 766, 773) even if other evidence supports a finding to the contrary (In re T.W. (2013) 214 Cal.App.4th 1154, 1162). Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment. (In re I.J., at p. 773.)
Section 300, subdivision (a) provides for dependency jurisdiction when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm." (Italics added.)
In his challenge to the sufficiency of the evidence, father first contends that absent the evidence from CCDFS, "the court certainly did not have enough evidence to find the minor at risk based on [father]'s potential behavior."
However, the evidence of father's serious physical abuse of Z.C. and A.D. was not derived solely from the CCDFS case file because DCFS independently substantiated the allegations. "Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Here, the juvenile court had father's own admissions to DCFS that he hurt the boys, A.D.'s statements to DCFS that father hit and punched him everywhere, and smacked him in the face, and punched Z.C. in the stomach, along with Z.C.'s statements to DCFS that father slammed him and broke his leg. The statements from these three witnesses provide abundant evidence of father's repeated physical abuse of A.D. and Z.C. that places all children in his custody at risk of nonaccidental serious physical injury. (See § 300, subd. (a).)
Father argues there was no evidence that he posed a risk of nonaccidental injury to his own children. He asserts that he was the protective parent, and to show he was remorseful about the harm to A.D. and Z.C., he simply declared he had changed. Yet, section 300, subdivision (a) authorizes jurisdiction when the court finds a substantial risk of serious future injury based on "a history of repeated inflictions of injuries on . . . the child's siblings." (Italics added.) A parent's abuse of his or her child's sibling or cousin justifies jurisdiction over the child. (In re Marquis H. (2013) 212 Cal.App.4th 718, 721.) In Marquis H., the parents of Marquis did not abuse him, but subjected their grandchildren—Marquis's niece and nephew who were living in the same house with Marquis—to serious and repeated physical abuse. (Id. at pp. 720-723.) The court held that Marquis could be declared a dependent under subdivision (a) of section 300 based on his parents' infliction of nonaccidental harm on children who were not his siblings, if the parents' conduct placed the child at issue at substantial risk of harm. (Marquis H., at p. 726.) "This reasoning applies even more strongly to abuse of related minors living in the home." (Ibid.) Father's repeated infliction of physical harm nonaccidentally on A.D. and Z.C., who are half-siblings of and living with Z.G. and J.G., places all four children at serious risk of substantial harm.
Father unsuccessfully attempts to distinguish his situation from a series of cases where the parent's physical abuse left marks, bruises, and other visible injuries. Of course, Z.C. suffered a broken leg because of father's physical abuse.
Finally, father appears to contend that the allegations of harm to A.D. and Z.C. are too remote in time to justify jurisdiction. He argues that he has cared for his own children without incident in the year since he broke Z.C.'s leg and hit A.D. In In re J.K. (2009) 174 Cal.App.4th 1426, 1439, an event occurring "only about two years prior to the initiation of proceedings" was held to be "not so remote that it can be ignored." Here, the severe physical abuse justifying jurisdiction occurred just one year before DCFS amended the petition to add father's conduct. More important, as the juvenile court observed, the record contains no evidence that father took any steps to address the causes of his abuse. (See ibid.) Rather, father admitted he had stopped attending parenting classes while conceding he could benefit from more parenting education. " 'The purpose of dependency proceedings is to prevent risk, not ignore it.' " (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104.) Substantial evidence supports the juvenile court's finding under count a-2 that all four children were at substantial risk of serious physical harm in father's custody. (See § 300, subd. (a).) II. Substantial evidence supports the jurisdictional finding against mother on count b-2.
A. The allegations
The juvenile court found the following allegations in count b-2 to be true:
"The children['s] . . . mother . . . has a history of inadequate supervision to her children which has resulted in serious accidents and her children being at risk of or seriously injured. In February 2014 a dresser with TV on it fell on another child in the home and her then 3-year-old son [A.D.]; in August 2014, her then 4-year-old son [A.D.] pulled and yanked on her then 8-day-old son [Z.C.'s] arm while mother fell asleep resulting in the child [Z.C.] sustaining a broken left humerus; in May 2018, 9-month-old [Z.G.] sustained a second degree burn on his upper thigh after the 7-year-old [A.D.] spilled a cup of hot Cup O Noodles soup on him while mother was present and the children were in her care and supervision. Such inadequate supervision on the part of the mother endangers" the children's health and safety and places them at risk of serious harm. (See § 300, subd. (b)(1).)
B. Additional facts
DCFS reported that in February 2014, a television fell off of a tall, narrow dresser onto a child living in the house, who was not related to mother, fracturing the child's right tibia and fibula.
In August 2014, eight-day-old Z.C. suffered a broken arm. Mother told the emergency room staff that she dozed off and woke to find four-year-old A.D. yanking the baby by the arm and breaking it. DCFS found that the hospital's suspicion of abuse to be unfounded because mother was protective of the children by taking Z.C. to the emergency room and taking all of her children for follow-up appointments. DCFS added that mother was uncooperative in that she refused to provide the investigating social worker with information about the children's fathers.
The most recent referral was received by DCFS in May 2018. Father picked the children up from mother and noticed a burn mark on Z.G's upper left thigh, near his buttocks. Mother explained that seven-year-old A.D accidently spilled hot soup on Z.G. She had taken the infant to a clinic and received cream for the burn. Father brought Z.G. to a hospital where a nurse practitioner diagnosed a second degree burn. Believing that the injury was not consistent with the explanation of a "splash burn," the nurse reported the incident to law enforcement. The police questioned mother and A.D. and decided that the child was telling the truth when he corroborated mother's story about the spill.
The juvenile court detained the children in their parents' care.
During the ensuing investigation, mother explained to DCFS that she worked the graveyard shift and so the children were home with her during the day. To get sleep during the daytime, mother had the children play on her telephone or watch television. Mother also stated in September 2018 that her children slept overnight at a daycare center, but the center had no record of the children's enrollment.
Father expressed his concern about the children's safety in mother's custody. He pointed out that caring for four children without family support overwhelmed mother. He added that she was always homeless and he believed she had a drinking problem. Paternal great aunt believed that mother did not provide a stable environment for the children.
Mother moved to Las Vegas in August 2018 and declared she saw no reason to return to California for a court date and she did not want any more social workers at her door. DCFS informed mother that it would call in a referral to the CCDFS based on concerns that she was generally neglecting the children.
After DCFS filed the original petition, mother refused to allow DCFS social workers to see the children in Las Vegas, and so DCFS requested that CCDFS assess the family. However, CCDFS and the Las Vegas police were unable to make contact with mother. Initially, mother smirked at CCDFS but did not answer the door. Eventually, mother allowed CCDFS to see the children but not to speak to them. That agency indicated it would close the referral because it could not force mother to cooperate. DCFS concluded that mother was being uncooperative. The children were not currently enrolled in daycare, contrary to mother's claim that they were, and mother denied that CCDFS had tried to contact her.
C. Governing legal principles and analysis
Subdivision (b)(1) of section 300 authorizes dependency jurisdiction over a child, among other things, when "[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 the failure or inability of his or her parent or guardian to adequately supervise or protect the child." The first clause of section 300, subdivision (b)(1) "requires no more than the parent's 'failure or inability . . . to adequately supervise or protect the child.' " (In re R.T. (2017) 3 Cal.5th 622, 629.)
Mother contends substantial evidence does not support any of the jurisdictional findings sustained against her. With respect to count b-2, she argues DCFS failed to show that she provided inadequate supervision because the record is devoid of any neglectful conduct on her part. For example, she notes that the report of the falling television did not indicate who was watching the children or whether that person was paying attention when the dresser fell. She adds that she took her children to the clinic for the broken arm and the burn. Mother relies on DCFS's decision not to file a petition immediately after each of the three incidents alleged in the petition, finding each time that mother was protective of the children and quickly sought medical help.
However, mother's children have suffered too many severe injuries to ignore. Each of these incidents occurred because mother was not supervising them adequately. Mother admitted she slept during the day while the children were in her care. Although she claimed the boys slept at a daycare center while she worked at night, the center's staff had no record of their enrollment, and Z.C. disclosed that mother slept when he was awake, and when he was asleep at night, she was gone. In fact, mother was asleep and failed to prevent A.D. from yanking on and breaking Z.C.'s arm or from spilling soup on baby Z.G. Furthermore, mother did not trust father with her children but nonetheless allowed him to care for them, resulting in Z.C.'s broken leg and A.D.'s physical abuse. Taken as a whole, these incidents cumulatively show mother is unable to supervise and protect the children. " 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child[ren].' " (In re I.J., supra, 56 Cal.4th at p. 773.)
Mother argues, citing In re Israel T. (2018) 30 Cal.App.5th 47, that by striking allegations from the petition, the juvenile court makes clear that the stricken language is not true. She argues that having stricken the word "neglect" from the petition, the court clarified that it did not agree with DCFS's characterization of her conduct as neglectful. The stricken language in Israel T. was that the children were at substantial risk of serious harm (id. at p. 52), an element of section 300, subdivision (b)(1) jurisdiction. However, parental neglect is not a requirement for jurisdiction under section 300, subdivision (b)(1) (In re R.T., supra, 3 Cal.5th at p. 624), whereas inability to adequately supervise or protect is. The juvenile court here did not strike the words inadequate supervision from the petition and so the petition's allegations remain sufficient to support jurisdiction under section 300, subdivision (b)(1). III. The dispositional order removing the children is supported by substantial evidence.
As the result of our conclusion affirming jurisdiction under count b-2, we need not address mother's challenge to jurisdiction under count a-2. (See In re J.L. (2014) 226 Cal.App.4th 1429, 1435.)
A. Governing legal principles
Before the juvenile court may order a child removed from his or her parent's custody, it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) "A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains the parent." (In re N.M. (2011) 197 Cal.App.4th 159, 169.) "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.] We review the court's dispositional findings for substantial evidence." (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
B. Analysis
Both parents challenge the removal order for lack of sufficient evidence. Mother argues that reasonable means were available to protect the children without removing them from her because the only risk to the children was father's physical abuse of Z.C. and A.D. and the court had removed them from father's custody. Recognizing his severe abuse of his step-children, father again argues that it occurred a year earlier and hence is stale, and adds that he had been caring for this own sons without incident by the time of the disposition hearing. Substantial evidence supports the order removing the children from both parents.
Mother is unable to supervise and protect her children and is overwhelmed by the effort and time required to care for four high-energy boys by herself. Mother admitted this to clinic staff. She even left her children with father knowing that he was physically abusive with them because she "was going through a lot." Additionally, mother has been uncooperative and has obstructed DCFS supervision by refusing to disclose her address when she moved to Las Vegas, refusing to allow CCDFS to assess the children, and refusing to provide the names of her children's fathers. Leaving the children in her custody is not a reasonable means of protecting them as it will unquestionably put them at substantial risk of more harm. (See § 361, subd. (c)(1).)
Nor can the children be safely left in father's custody because he has repeatedly been extremely abusive toward children in his care. We are unpersuaded by father's argument that no harm has come to his children during visitation. By then, father knew he was being watched by DCFS. Compounding the problem is that father has not addressed his anger and violence, which are the very reasons his children were declared dependents of the juvenile court. As already noted, father dropped out of the parenting course he enrolled in before the jurisdiction hearing, even while admitting he needed to take the class. Ignoring the serious abuse he has already inflicted on the children, father insists that he is the only protective parent because he took Z.G. to the doctor for burns. But, so had mother. "[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision." (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) Removal is the only reasonable means of protecting the children from father.
Father next contends that the juvenile court abused its discretion in ordering him to participate in counseling to address anger management and discipline because such orders are overbroad and unrelated to his children. Father does not assign as error the order that he take a developmentally appropriate parenting course.
Section 361.5 requires the juvenile court to order reunification services for both parent and child when a child is removed from parental custody. (In re D.C., supra, 243 Cal.App.4th at p. 56.) The court has the power to fashion a wide variety of remedial orders to protect dependent children's safety and well-being. (In re Neil D. (2007) 155 Cal.App.4th 219, 225.) "Reunification services should be tailored to the particular needs of the family." (In re A.G. (2017) 12 Cal.App.5th 994, 1001.) Juvenile courts have broad discretion (In re Corrine W. (2009) 45 Cal.4th 522, 532) to make any and all reasonable orders to the parents to ameliorate the conditions that caused the children to become subject to the court's jurisdiction (In re Neil D., at p. 224). We review the court's determination for abuse of discretion and will not reverse absent a clear abuse of that discretion. (In re Corrine W., at p. 532.)
The portion of father's case plan requiring him to address anger management and discipline in his individual counseling is appropriate. Father regularly hit A.D. all over his body. More important, father became so enraged at Z.C. for kissing A.D. that he threw Z.C. on the bed with enough force to cause the child to break his leg. The doctor who examined the child found a large handprint on the child's face. Meanwhile, father dismissed the incident as an accident. This conduct shows that when he is angry, father can perpetrate such violence on little children that addressing anger management and discipline is necessary to ameliorate the conditions that caused these children to become dependents of the juvenile court. (See In re Neil D., supra, 155 Cal.App.4th at p. 224.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
LAVIN, J.