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In re J.L.

California Court of Appeals, First District, First Division
Apr 29, 2009
No. A122401 (Cal. Ct. App. Apr. 29, 2009)

Opinion


In re J.L. & L.L., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.L., Defendant and Appellant. A122401 California Court of Appeal, First District, First Division April 29, 2009

NOT TO BE PUBLISHED

Alameda County Super. Ct. Nos. HJ-07-008787 & HJ-08-009227

Graham, J.

Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

This appeal has been taken from orders following jurisdictional and dispositional hearings finding the minors, J.L. and L.L., to be dependent children and removing them from appellant A.L.’s custody. Appellant claims that the evidence fails to support the jurisdictional findings and the dispositional orders. We affirm.

The children were also removed from A.N.L.’s (father’s) custody. A.N.L. is not a party to this appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Appellant is the mother of J.L. and L.L. J.L. was 19 months old when he was removed from appellant’s home. L.L. was removed shortly after her birth. The circumstances leading to the removal of the children follow.

On January 2, 2008, respondent Alameda County Social Services Agency (Agency) filed a petition with respect to J.L., alleging that his half sibling, two-month-old C.A., had died under suspicious circumstances on December 28, 2007. The petition reports that appellant’s husband A.N.L. allegedly “dropped” C.A., after which the couple did not seek appropriate medical care for the baby, who subsequently died. The petition also alleges that appellant and her husband had no stable housing or income, and that they had been known to use drugs and alcohol “to excess.” (Welf. & Inst. Code, § 300, subds. (b), (f) and (j).)

All further statutory references are to the Welfare and Institutions Code.

The Agency’s detention report states that C.A.’s biological mother, L.A., brought C.A. to A.N.L.’s house for a visit at 2:00 p.m. on December 28, 2007. A.N.L. reportedly dropped C.A. around 8:50 or 9:00 p.m. Appellant heard a thump and heard A.N.L. say “I’m sorry.” She did not check on the child. Instead, she left the home while A.N.L. stayed with the baby. When appellant returned about an hour later, A.N.L. told her that C.A. was not breathing. Appellant attempted CPR, and she and A.N.L. decided to take the child to a hospital. Around 11:00 p.m., A.N.L. called L.A. and told her that he was taking C.A. to the emergency room and asked her to meet him there. A friend drove L.A. to the hospital and dropped her off at the entrance to the emergency room. The friend parked her car, and as she was walking back to the emergency room, A.N.L.’s car pulled up and appellant got out and handed C.A. to her. The car then drove off. C.A. received medical treatment but did not survive. The child had bruising on his face and chin, and there was a gash above the left eye.

An autopsy report later revealed that C.A. had sustained 20 individual injuries, including multiple blunt injuries to the skin, head, neck and extremities, as well as subdural and subarachnoid hemorrhages and cerebral swelling. The overall cause of death was multiple blunt injuries.

On January 3, 2008, the juvenile court ordered J.L. detained based on a prima facie showing that he was a child described by section 300. The court found there was a substantial danger to J.L.’s physical health, or that he was suffering severe emotional damage, and there was no reasonable means to protect the child’s physical or emotional health without removing him from his parents’ custody. (§ 319, subd. (a).) J.L. was placed with his maternal grandparents.

On January 17, 2008, the department filed an addendum report relating an incident in which A.N.L. was alleged to have shot the driver of another car with a BB gun while in a moving vehicle. Appellant was present in the car along with J.L. during the incident, and it was alleged that she had attempted to conceal the BB gun from the police by dumping it into a trash can. While she was not arrested on that day, her case was referred to the district attorney for charging as an accessory to a felony.

On January 24, 2008, the Agency filed a second addendum report stating that while pregnant with L.L., appellant had submitted a hair follicle test that was positive for amphetamine and methamphetamine. Appellant did not deny her drug use, and expressed to the Agency that she did not feel her drug use was an issue. During these dependency proceedings, she participated in an outpatient drug treatment program and tested clean in random drug tests.

On March 3, 2008, the Agency filed a petition alleging that newborn L.L. came within section 300, subdivisions (b), (g) and (j). The grounds stated in the petition were much the same as those that had been alleged in the earlier petition filed on behalf of J.L., focusing on the events that led to C.A.’s death. The agency’s detention report states that appellant had tested negative for drugs at the time of birth. It also states that A.N.L. had visited her in the hospital.

On March 4, 2008, the trial court ordered L.L. retained pursuant to a protective custody warrant. She was placed in the maternal grandmother’s home. The Agency filed its jurisdiction report regarding L.L. on March 20, 2008.

A.N.L. was arrested for C.A.’s death on April 28, 2008. At the time of his arrest, he was under the influence of methamphetamines and had been driving appellant’s car. During a subsequent police interview, A.N.L. stated that he and appellant had a physical altercation while he was holding C.A. During the fight, appellant threw a cell phone at him and he slapped her in the face. A.N.L. stated that he noticed the baby’s head jerk before he finally forced appellant out of the home. Appellant later acknowledged having argued considerably with her husband and having thrown a cell phone at him while he was holding C.A. The authorities declined to file charges against appellant in C.A.’s death, though they believed she had been negligent in failing to call 911 and in delaying seeking medical treatment. It was estimated that 30 minutes passed between the time appellant and her husband first noticed C.A. was not breathing and the time they arrived at the hospital.

C.A. was conceived during appellant’s marriage to A.N.L., which was a source of conflict between them.

A contested hearing on jurisdiction and disposition was held on June 10, 2008. The court found the allegations in the petitions to be true. The court sustained dependency jurisdiction on both J.L. and L.L., and ordered both minors removed from their parents’ custody. Reunification services were granted to appellant and denied to A.N.L. This appeal followed.

DISCUSSION

Appellant contends that the jurisdictional findings for J.L. and L.L. are not supported by substantial evidence. We disagree.

A parent may seek review of both the jurisdictional and dispositional findings on an appeal from the dispositional order. (In re Javier G. (2005) 130 Cal.App.4th 1195, 1199–1200.) At the jurisdictional hearing the juvenile court determines whether the allegations in the petition that the minor comes within section 300 (and therefore within the juvenile court’s jurisdiction) are true. The court’s jurisdictional findings must be based on a preponderance of the evidence. (In re Cynthia D. (1993) 5 Cal.4th 242, 248; see § 355.) If the court finds jurisdiction under section 300, it declares the child a dependent of the juvenile court and proceeds to the disposition phase, where the court considers whether the child should be removed from the parents.

The guidelines and limitations for removal of a child from the custody of the parents are set forth in section 361. Section 361 provides, in pertinent part: “(c) A dependent child may not be taken from the physical custody of his or her parents... unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5).... [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody....”

At the dispositional phase of dependency proceedings the burden of proof is clear and convincing evidence. (See § 361, subd. (c); Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.) On appeal, the “substantial evidence” test is the appropriate standard of review for both the jurisdictional and dispositional findings. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Under the substantial evidence test, appellate review is circumscribed. (In re Tania S. (1992) 5 Cal.App.4th 728, 733–734 [appellate court must examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defers to the lower court on issues of credibility of the evidence and witnesses].) The term “substantial evidence” means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) If there is any substantial evidence, contradicted or uncontradicted, which will support the dispositional order, we must affirm. With these principles in mind, we examine appellant’s contentions.

II. Section 300, Subdivision (b)

A child may be determined a dependent of the juvenile court 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.” (§ 300, subd. (b).) A finding under section 300, subdivision (b) requires (1) neglectful conduct by the parent; (2) causation; and (3) serious physical harm or illness to the child, or a substantial risk of such harm or illness. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396, citing In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

Appellant concedes that A.N.L.’s conduct was neglectful in that C.A. suffered fatal injuries while in his care. Substantial evidence thus supports the court’s exercise of jurisdiction over the children due to A.N.L.’s conduct. Although the juvenile court also found appellant’s children to be at risk of serious harm due to her history of drug use, that finding was not necessary for the court to assert jurisdiction over the children.

When one parent is unsuitable, the juvenile court properly may find a child comes within the jurisdiction of section 300, even if the other parent claims to be a suitable parent. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16 [mother’s admitted conduct in endangering children found sufficient for jurisdiction notwithstanding father claimed he was nonoffending]; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553–1554 [juvenile court may take jurisdiction over a minor even if only one parent is unsuitable; social services department “ ‘is not required to prove two petitions, one against the mother and one against the father’ [citation]”]; see In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against both”].) Such a rule is consistent with “the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.” (In re Alysha S., supra, at p. 397.)

Appellant concedes that the juvenile court may take jurisdiction over a child if the actions of either parent bring the child within one of the statutory definitions in section 300. She contends, however, that the court should not have removed the children from her at the dispositional hearing because she was not culpable in C.A.’s death. Even though the additional findings regarding appellant’s conduct were not necessary to assert jurisdiction over the children, we find substantial evidence supports the court’s dispositional order removing the children from her custody.

The record reveals that appellant had a history of drug use, and includes compelling evidence that she consumed methamphetamine at a time when she knew she was pregnant with L.L. She also appears to have had little awareness of the implications of taking drugs while pregnant, professing that she did not believe her drug use was a problem. Additionally, she had a history of criminal activity, including a pending charge relating to the incident with the BB gun. Furthermore, A.N.L. reportedly told police that C.A. might have been injured when he and appellant were engaged in an argument that culminated in a physical confrontation wherein she threw a cell phone at him while he was holding the baby. These facts alone support the conclusion that there was a substantial risk J.L. and L.L. would suffer physical harm if they remained in her custody.

We granted the Agency’s request for judicial notice of information regarding hair follicle drug testing, indicating that hair testing can be used to determine historical drug use up to 90 days.

While appellant states in her brief on appeal that she was not charged in connection with this incident, the record shows she reported to social workers that she was a codefendant in the case, along with her husband.

We also find appellant’s efforts to distance herself from the circumstances surrounding C.A.’s death to be less than persuasive. While she accords great significance to the fact that C.A. was not her biological child, we disagree with the assertion that she had “no relationship” with him. She was C.A.’s stepmother, and is the mother of his half brother and half sister. She was living with C.A.’s father and was present in the home on the day C.A. died, possibly even at the moment in which his fatal injury occurred. Appellant also admitted she voluntarily administered CPR when she learned C.A. had stopped breathing.

Instead of calling 911, appellant transported the child to the hospital and handed him off to the biological mother’s friend rather than enter the hospital to provide information to the attending physicians about the circumstances leading to the baby’s injuries. These acts alone demonstrate, at a minimum, a lack of awareness of the proper measures to take in response to a medical emergency involving a child. In sum, while appellant was not charged with C.A.’s murder, she was substantially involved in the events surrounding his demise. The juvenile court was free to consider her conduct towards C.A. in determining whether to exercise jurisdiction over J.L. and L.L. and remove them from her custody.

In light of our conclusion that the juvenile court properly exercised dependency jurisdiction under section 300, subdivision (b), we need not examine whether jurisdiction was also proper under subdivisions (f), (g), or (j). (In re Athena P. (2002) 103 Cal.App.4th 617, 630; In re Shelley J. (1998) 68 Cal.App.4th 322, 330 [jurisdiction may be based on a single subdivision].) Even if we agreed with appellant’s arguments with respect to the allegations under section 300, subdivisions (f), (g), and (j), we would nonetheless conclude that jurisdiction was proper based on subdivision (b).

We also note that appellant entered into an agreement regarding disposition in this case. (See In re Brandon M. (1997) 54 Cal.App.4th 1387, 1401 [parent waives any issue regarding the dispositional orders by agreeing to these orders in settlement].) While she claims that the agreement was conditioned on the court reaching a true finding that she caused C.A.’s death, we find nothing in the record to support this assertion.

DISPOSITION

The judgment is affirmed.

We concur: Marchiano, P. J., Margulies, J.


Summaries of

In re J.L.

California Court of Appeals, First District, First Division
Apr 29, 2009
No. A122401 (Cal. Ct. App. Apr. 29, 2009)
Case details for

In re J.L.

Case Details

Full title:In re J.L. & L.L., Persons Coming Under the Juvenile Court Law. ALAMEDA…

Court:California Court of Appeals, First District, First Division

Date published: Apr 29, 2009

Citations

No. A122401 (Cal. Ct. App. Apr. 29, 2009)