Opinion
A153262
08-17-2018
In re S.R., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH & SOCIAL SERVICES, Plaintiff and Respondent, v. E.J., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43909)
Defendant and appellant E.J. (Mother) appeals from the juvenile court's jurisdictional and dispositional findings in this juvenile dependency matter. We hold substantial evidence supports the court's challenged finding under Welfare and Institutions Code, section 300, subdivision (b)(1) (Section 300(b)(1)). Mother's challenge to the court's dispositional order is moot.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
This summary is based on the information in the various reports filed by respondent Solano County Department of Health and Social Services (Department).
S.R. (Minor), born September 2016, is the child of Mother and William W. (Father). Mother and Father do not live together and are not in a romantic relationship. Mother raised Minor on her own for the first 8 months of his life; Father met Minor for the first time in May 2017.
Mother permitted Father to have overnight visits with Minor until an incident on or around June 13, 2017, when Minor sustained a concussion after supposedly falling out of Father's bed. An emergency room doctor opined Minor's injuries could be consistent with falling off a bed, but Mother did not believe the injuries were accidental. Following that incident, Mother did not allow Minor to visit Father.
On July 2, 2017, the Department received a report that Mother left Minor alone in a stroller in the garage on two occasions, most recently in April. The Department described the disposition of the allegation as follows: "Evaluated out. Did not meet SDM criteria for an investigation. The mother was referred to Family Stabilization Program." When asked about the incident during the current proceeding, Mother admitted she made a "terrible" decision and said "she was exhausted and needed to sleep."
On July 6, 2017, Father filed in family court an ex parte request for physical and legal custody of Minor. He based the request on information he received from the maternal grandmother and aunt about erratic and neglectful conduct by Mother. He attached an e-mail from the maternal grandmother stating that "when [Minor] was around six months old . . . I awakened twice to find him in the garage alone and crying strapped inside his stroller around 3:00 a.m."
In September 2017, a Department social worker interviewed Minor's maternal grandmother. She described Mother's difficulty coping with Minor. For example, on one occasion the grandmother offered to help with Minor and Mother said, "if you take him, then don't bring him back." The grandmother also confirmed finding Minor alone in the garage and said she also recalled seeing Mother sleeping in the house while Minor was alone in a locked in-law unit.
The family court granted Father temporary physical custody and scheduled a hearing for August 15, 2017. The court entered a temporary order giving joint physical custody on July 11, but then on July 14 the family court granted temporary sole physical custody to Father. The change was based on a declaration from Father explaining how he had been unable to return Minor to Mother because Mother did not answer the door or respond to any of his texts.
In response to Father's request for sole physical custody, Mother told the family court she "did not have a response to [Father's] allegations and to grant him what he wants." Mother told the Department she failed to oppose the temporary custody award to Father because she was on the verge of a "nervous breakdown." She also told the Department she "just gave up and gave [Father] whatever he wanted" because she felt "as though no one would listen to her or take her concerns about physical abuse seriously."
The precise extent of Mother's visitation with Minor after Father obtained custody is unclear. Mother told the Department that Father would not arrange visitation with Minor after July 21, 2017. Subsequently, she said she had ten supervised visits with Minor from July 7 to August 23, at a maternal aunt's home. When interviewed in September, Mother told the Department that Minor had various suspicious injuries and behaviors when he visited with her in this period. During one visit Minor seemed "limp;" during other visits he did not straighten his arm, had "something" on his lip, had an injury on his forehead, and had a bruise on his nose. Mother cites to nothing in the record indicating that she promptly reported the incidents to the Department or to the family court. Mother made reference to "bruises and scratches on [Minor's] forehead/face" in an August 3 declaration she submitted to the family court requesting joint legal and physical custody, but did not describe the other injuries she observed.
At the hearing on August 15, 2017, the family court set the custody dispute for trial and issued a temporary order providing for "joint legal custody, primary physical custody to Father." (Capitalization omitted.) The court requested an investigation pursuant to section 329 (form JV-210) because both parents were claiming the other was unfit.
Section 329 provides in relevant part: "Whenever any person applies to the social worker to commence proceedings in the juvenile court, the application shall be in the form of an affidavit alleging that there was or is within the county, or residing therein, a child within the provisions of Section 300, and setting forth facts in support thereof. The social worker shall immediately investigate as he or she deems necessary to determine whether proceedings in the juvenile court should be commenced."
On August 25, 2017, Father brought Minor to a hospital emergency room at 6:48 a.m., reporting that Minor could not walk on his right leg. Father said he and Minor were playing at approximately 4:00 a.m. when he pulled on Minor's leg and heard a "pop." Subsequently, it was discovered that Minor had multiple broken bones. The treating physician reported that, in addition to the recent femur fracture, the Minor's arms, clavicle, and tibia had fractures that were older than two weeks but less than two months old. The doctor opined that none were the result of accidental injury. Father was arrested. He denied knowing how Minor sustained his injuries.
On August 29, 2017, the Department filed a petition alleging Minor was within the jurisdiction of the juvenile court under section 300 (the Petition). On August 30, the court ordered Minor detained. On September 15, the Department filed a jurisdiction report detailing the grounds under section 300, subdivisions (a), (b), and (e).
The Department filed a disposition report on October 20, 2017, recommending Minor be adjudged a dependent child and remain in placement outside of the home, with family reunification services to both parents. Mother reported that she had finished a parenting class. The Department social worker spoke to a mental health provider who had been treating Mother since July 30. The doctor said that Mother had been diagnosed with post-traumatic stress disorder and that Mother had been learning tools in therapy that would help her protect herself and Minor.
Mother consistently participated in weekly supervised visits with Minor, which went well. Starting on October 17, 2017, Mother was allowed three hour unsupervised visits in the community with Minor. Father remained in custody; he participated in weekly supervised video visitation with Minor.
At the jurisdictional/dispositional hearing on December 14, 2017, counsel for the Department announced there was a "resolution." The Department moved to dismiss certain allegations while amending others. As to Mother, the amended Petition alleged she failed to protect Minor within the meaning of Section 300(b)(1); the factual allegations are addressed in the discussion portion of this opinion. As to Father, the amended Petition alleged under section 300, subdivision (e), that Minor suffered non-accidental injuries that "would not normally occur except as a result of unreasonable or neglectful acts or omissions by" Father. The amended Petition also alleged as to Father under section 300, subdivision (g), that Minor was left with no provision for support because Father had been arrested and charged with felony child abuse. Father submitted, while Mother's counsel said she was "objecting and submitting."
The juvenile court adjudicated Minor a dependent child, ordered he remain detained, and directed that both parents receive family reunification services.
This appeal followed. On June 28, 2018, Mother's counsel sent a letter informing this court that, on June 7, the juvenile court returned Minor to Mother's custody with a family maintenance plan.
DISCUSSION
Mother contends insufficient evidence supports the juvenile court's finding she failed to protect Minor within the meaning of Section 300(b)(1). The jurisdictional finding was based on the following factual allegations: "On multiple occasions, [Mother] left [Minor] unattended for extended periods of time in a locked in-law unit or a garage while she slept. On June 13, 2017, [Minor] suffered from facial injuries following an overnight visit with [Father]. [Mother] reasonably believed [Father] to have caused [Minor] physical injury, but told the Family Law Court on July 14, 2017, to 'give [Father] what he wants' resulting in the court awarding [Father] exclusive physical and legal custody. On November 3, 2017, [Mother] reported to the Department that due to the stress of the Family Law matter, conflict with [Father] and her family, she had a 'breakdown' resulting in her statement in Family Law Court. These facts and circumstances place [Minor] at substantial risk of serious physical harm."
This court exercises its discretion to consider Mother's claim, even though she does not challenge the jurisdictional findings based on Father's conduct under other subdivisions of section 300. (See In re Drake M. (2012) 211 Cal.App.4th 754, 762 ["we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding . . . could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings"].)
At the outset, we reject the Department's contention that appellant forfeited the right to contest the sufficiency of the evidence. Respondent asserts that "the petition was amended and allegations were dismissed based on a settlement between [Mother] and the Department" and that Mother "may not appeal from orders entered as a result of a settlement agreement in open court." (See In re Brandon M. (1997) 54 Cal.App.4th 1387, 1400-1401.) That argument is based only on the Department's counsel's statement at the jurisdictional hearing, "I believe we have a resolution," followed by amendments to the Petition. Counsel then commented, "With that, and with the stipulation from all the parties as amended, Allegation b-1 states a cause of action under [section] 300. It was my understanding that the parents would be either objecting today or submitting." Father's counsel responded, "we are submitting on the changes as alleged," and Mother's counsel responded, "[w]e are objecting and submitting." "An admission that the allegations of a section 300 petition are true, as well as a plea of no contest to a section 300 petition, bars the parent from bringing an appeal to challenge the sufficiency of the evidence supporting the jurisdictional allegations. [Citations.] However, when a parent submits the jurisdictional issue to be determined by the juvenile court solely on the basis of the social worker's report, the parent does not waive his or her right to challenge the sufficiency of the evidence to support the court's jurisdictional finding." (In re N.M. (2011) 197 Cal.App.4th 159, 167.) Because the Department points to nothing in the record showing that Mother admitted the truth of the allegations in the Petition (or pled no contest), she has not waived her right to challenge the sufficiency of the evidence on appeal.
A child may be adjudged a dependent under Section 300(b)(1) if the "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 . . . to adequately supervise or protect the child." The juvenile court need not find "that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child." (In re R.T. (2017) 3 Cal.5th 622, 624; see also In re Joaquin C. (2017) 15 Cal.App.5th 537, 561 ["The Supreme Court has clarified that [Section 300(b)(1)] does not require that a parent commit neglect or deserve blame for being unable to supervise or protect the child, only that an actual inability to provide the necessary supervision or protection exists."].) "In light of the Supreme Court's guidance, we understand [Section 300(b)(1)] to require [the Department] to demonstrate three elements by a preponderance of the evidence: (1) one or more of the statutorily-specified omissions in providing care for the child (inability to protect or supervise the child, the failure of the parent to provide the child with adequate food, clothing, shelter, or medical treatment, or inability to provide regular care for the child due to mental illness, developmental disability or substance abuse); (2) causation; and (3) 'serious physical harm or illness' to the minor, or a 'substantial risk' of such harm or illness." (In re Joaquin C., at p. 561.)
Section 300(b)(1) provides in relevant part as a basis for jurisdiction that, "[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, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the 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."
" 'In reviewing the jurisdictional findings and disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.' " (In re R.T., supra, 3 Cal.5th at p. 633.)
In the present case, there is no dispute Minor suffered serious physical harm—five broken bones—apparently while residing with Father. We construe the Petition to allege that Mother failed to protect Minor from that harm and that also there was a substantial risk of future harm. We need not determine whether there was sufficient evidence of risk of harm at the time of the jurisdictional determination, because substantial evidence supports a finding Mother failed to protect Minor during the period when he was injured by Father. (In re Adam D. (2010) 183 Cal.App.4th 1250, 1261 ["proof of current risk of harm is not required to support the initial exercise of dependency jurisdiction under section 300, subdivision (b), which is satisfied by a showing the child has suffered or there is a substantial risk that the child will suffer, serious physical harm or abuse"]; In re J.K. (2009) 174 Cal.App.4th 1426, 1435 ["the use of the disjunctive 'or' demonstrates that a showing of prior abuse and harm is sufficient, standing alone, to establish dependency jurisdiction"].) The cases appellant cites are inapposite, because jurisdiction in those cases could only be based on a risk of harm because the minors had not suffered harm from the alleged prior conduct. (See In re C.V. (2017) 15 Cal.App.5th 566, 572 [" 'When the jurisdictional allegations are based solely on risk to the child, that risk must be shown to exist at the time of the jurisdiction finding.' [Citation.] Jurisdiction 'may not be based on a single episode of endangering conduct in the absence of evidence that such conduct is likely to reoccur.' "]; In re Yolanda L. (2017) 7 Cal.App.5th 987, 994 [same]; see also In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Accordingly, we need not and do not consider appellant's argument that there was insufficient evidence of substantial risk of harm at the time of the jurisdictional finding.
As noted previously, a doctor at Oakland Children's Hospital stated on August 28, 2018, that, other than the recent leg break, the breaks were older than two weeks but less than two months old. Neither party cites to any evidence Minor was suffering from any of the injuries prior to the July 11 temporary award of custody to Father.
Regarding the sufficiency of the evidence supporting the Section 300(b)(1) finding based on the serious harm suffered by Minor, Mother argues the finding could not be based on the allegation that she left Minor "unattended for extended periods of time in a locked in-law unit or garage while she slept" because the Department decided not to investigate that allegation in July 2017. Notably, Mother does not dispute the evidence supports the allegation. Accordingly, even if it alone would not support jurisdiction, it was neglectful conduct the juvenile court could properly consider in deciding whether the "totality of the circumstances" (In re J.K., supra, 174 Cal.App.4th at p. 1440) showed Mother failed to protect Minor.
Mother also argues "there was no evidence even suggesting [Mother] likely was, or could be, the perpetrator of her son's multiple and serious injuries." We agree there is no basis in the evidence to infer Mother inflicted the injuries on Minor. However, Mother does not claim the Section 300(b)(1) finding of failure to protect must be based on evidence she inflicted the injury. The evidence in the present case is that Mother failed to protect Minor from Father during the period in which Minor sustained the injuries. According to the Department's reports, Mother believed Minor was not safe in Father's care, and she believed the Minor's injuries in June 2017—when he supposedly fell from a bed—were not accidental. Nevertheless, shortly thereafter, on July 14, Mother effectively consented to a grant of temporary full custody to Father, by declining to respond to Father's allegations and by telling the family court to give Father whatever he wanted.
Mother points out that a doctor concluded Minor's injuries could be "consistent" with falling from a bed. But Mother told the Department that, despite the doctor's assessment, she felt "very frustrated at the time because she did not believe the injuries were accidental."
On appeal, Mother does not dispute she consented to giving Father temporary custody because she had a nervous breakdown. Instead, she argues the family court made the ultimate decision to award custody to Father. But Father's applications alleged erratic and neglectful conduct on the part of Mother. For example, he alleged Minor's maternal grandmother and aunt told him that Mother had responded to offers to help care for Minor with comments such as "if I have to suffer, [Minor] has to suffer" and "If you take him, don't bring him back." Mother's failure to respond and to seek at least joint custody effectively left the family court with no alternative but to award temporary custody to Father. Notably, Mother's previous neglectful conduct in leaving Minor in a locked in-law unit or garage supported an inference there was a pattern to Mother's behavior—an inability to protect Minor during times of difficulty.
When the Department social worker asked Mother why she failed to "attempt to protect" Minor "if she believed [Father] was abusive and harming" Minor, Mother responded that "at that time she did what she needed to do to mentally and physically protect herself to ensure she [could] be [Minor's] caregiver in the future." The Department's report elaborated: "At that time, she voiced she was on the verge of a mental breakdown and she would have ended up in jail . . . . When asked for more clarification, she shared . . . she would have wanted to take [Minor] and run away to Wisconsin, but she [knew] it is illegal."
As noted previously, the evidence supported an inference the injuries to Minor occurred during the period Father had custody of Minor. Indeed, Mother reported to the Department that during visits during the period Father had custody she observed that Minor was limp, unable to straighten his arm, and had "something" on his upper lip. In addition, she observed an injury on Minor's forehead on July 19, 2017, and Minor had bruising below his nose a week before his August 25 hospitalization. But there is no indication Mother took steps to protect Minor from Father when she observed these injuries, other than mentioning facial "bruises and scratches" in an August 3 declaration to the family court.
We conclude Mother has not shown insufficient evidence supports the juvenile court's finding Mother failed to protect Minor within the meaning of Section 300(b)(1).
Mother also challenges the juvenile court's dispositional order removing Minor from her custody. However, she informed this court by letter dated June 28, 2018 that Minor was returned to her custody on June 7. Mother's challenge to the juvenile court's dispositional order is moot, and she has not shown there is any ground for this court to entertain the claim. (See In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re John W. (1996) 41 Cal.App.4th 961, 969.)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.