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In re J.R.

California Court of Appeals, Second District, Eighth Division
Sep 30, 2008
No. B203660 (Cal. Ct. App. Sep. 30, 2008)

Opinion


In re J.R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.R., Defendant and Appellant. B203660 California Court of Appeal, Second District, Eighth Division September 30, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from an order of the Superior Court of Los Angeles County No. CK66770. Marilyn Mackel, Referee.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Deputy County Counsel, for Plaintiff and Respondent.

COOPER, P. J.

The juvenile court found jurisdiction over J.R., based in part on allegations that her father, C.R., had a history of spousal and child abuse involving J.R.’s mother and older half brother. Father appeals from the juvenile court’s order and contends that the court’s jurisdictional findings involving him were not supported by sufficient evidence. We reverse the juvenile court’s jurisdictional findings as to father and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2007, the Department of Children and Family Services (DCFS) detained J.R. and her two half siblings. At the time, all three children were living with mother and mother’s companion (the father of J.R.’s younger half sibling). DCFS got involved after receiving reports of domestic violence between mother and her companion, alcohol abuse by both adults, and excessive and inappropriate punishment of the children. The whereabouts of J.R.’s father, C.R. (father), were initially unknown. However, father and mother had a history of domestic violence while they were together. Between approximately 1995 and 2000, father and mother had numerous violent incidents, including but not limited to the following: father used a knife to cut up mother’s dress while she was wearing it; father slammed mother’s face into a doorway and split her lip; father choked mother more than once; father held mother over a second-floor balcony by her knees because he was upset with her; father slashed the maternal grandmother’s tires to keep her from calling the police during one of father’s altercations with mother; father threatened mother with a knife during an argument while mother was holding J.R. (then an infant); and in one incident, after father choked mother, police saw him chase mother down an alley and throw her against a car. At the initial detention hearing, mother told the court that father punched and kicked her in the stomach several times when she was pregnant with J.R. On several occasions, father also hit J.R.’s older half brother, N.H., stepped on his genitals, and pinched him all over. In 2000, father told police that he had used marijuana and methamphetamines continuously since 1988. Father was convicted of spousal abuse and child cruelty in 2000 and was incarcerated between 2000 and 2006.

Father was released from prison on parole in May 2006. DCFS reports indicated that by February 2007, father had been sober for almost four years; he was active in various 12-step programs, including alcoholics anonymous; he had accepted that he was bipolar and was receiving psychiatric treatment and medication; he was in individual therapy through a parole outpatient mental health program; and he had established a relationship with another older daughter (J.R.’s half sister), with whom he had weekend and overnight visits.

In February 2007, father responded to DCFS notices informing him of the dependency proceedings. Although father had not seen J.R. since she was only months old, he told DCFS that he was eager to have a relationship with her. Father admitted to DCFS that, before going to prison in 2000, he abused drugs and alcohol, he was physically violent with mother, and he had a “horrible” way of dealing with N.H. when N.H. was disobedient. However, father also told DCFS that he had been working to turn his life around and was willing to do what was necessary to be a part of J.R.’s life. Father agreed to have initial visits with J.R. in a therapeutic setting, and he informed DCFS that his mother and sister were willing to help in any way so that he might reunify with J.R.

Father believed that his spousal abuse and child cruelty convictions resulted in a stay-away order that prevented him from contacting mother, even through a third party.

In March 2007, a DCFS team found father to be “reliable, dependable, honest and forthright. [Father] admitted to his past errors and did not make any excuses as to his behavior, nor did he blame any other parties involved in those incidents. [Father] stated that he is willing and anxious to participate in any type of program, and that he wants to have his child placed with him.” Father had also enrolled in parenting classes and domestic violence counseling.

In April 2007, DCFS filed a Third Amended Petition per a mediated agreement, and in May 2007, the juvenile court sustained a portion of the petition’s allegations under Welfare and Institutions Code section 300, subdivisions (b) and (j). The juvenile court sustained counts b-1, b-2, and b-4/j-1, which alleged that mother and companion’s domestic violence placed the children at risk of harm, mother’s substance abuse placed children at risk of harm, and mother and companion inappropriately disciplined J.R. and N.H. The court postponed adjudication of the petition’s allegations relating to father’s conduct.

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

DCFS initially placed J.R. and her two half siblings with the companion’s sister after detaining them from mother in February 2007. However, in April 2007, N.H. told mother’s companion that he (N.H.) had inappropriately touched J.R. approximately four times when she was between three and five years old. Upon learning this information, DCFS placed J.R. with her paternal grandmother.

By the end of August 2007, father and J.R. were seeing each other on a regular basis. The therapist monitoring the visits reported that J.R. had become much more affectionate with father, she looked happy, and father was actively participating in the visits, working full time, and pursuing his own therapy. However, father admitted that J.R. was more comfortable when others were present during visits than when J.R. and father were alone. The juvenile court ordered that father have unmonitored visits and, provided those visits went well, that J.R. also visit father overnight. By October 2007, father had submitted consistently negative drug tests, completed a parenting class, provided DCFS with records showing that he had completed several phases of an intensive substance abuse program while in prison, and was attending a weekly domestic violence batterer’s program. J.R. and father’s overnight and weekend visits had gone well. J.R. appeared to be developing a relationship with father, but still struggled with attention deficit hyperactivity disorder, irritable moods, and defiance, as well as sleep and appetite problems.

In late October 2007, the juvenile court reconvened the jurisdiction and disposition hearings and sustained one amended count in the Third Amended Petition relating to father under section 300, subdivision (b) (count b-5): “[Mother and father] have had a history of engaging in violent physical altercations, which have resulted in the father’s conviction of a felony for spousal abuse. As well, [father] has been convicted of child endangerment and cruelty having stepped on the child’s sibling, [N.H.’s] genital area on more than one occasion. Such domestic violence between the child’s mother and father endangers the child’s physical and emotional health and safety, and places the child [J.R.] at risk of physical harm, and abuse.” At the disposition proceeding, the juvenile court placed J.R. with father, ordered family maintenance services for father, and also ordered reunification services for mother.

Father filed a timely notice of appeal from the jurisdictional orders and judgment.

DISCUSSION

Father’s sole contention is that there was insufficient evidence for the juvenile court to sustain count b-5 of the petition. However, a juvenile court takes jurisdiction over the child, and the court may declare jurisdiction over a child based on either parent’s actions. (§ 302, subd. (a).) “The rationale for the rule is that the dependency law is based on protection of the children rather than punishment of the parent. [Citations.]” (In re James C. (2002) 104 Cal.App.4th 470, 482.) Father does not challenge the juvenile court’s order sustaining counts b-1, b-2, and b-4/j-1, which were based on mother and companion’s conduct. Yet, the juvenile court could properly assume jurisdiction over J.R. regardless of the adequacy of the particular allegations against father. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202 [trial court erred by finding allegations against mother true, then holding a second jurisdiction hearing as to father, and by dismissing petition as to father because petition is filed on behalf of the children].) Nonetheless, we address father’s challenge to the sufficiency of the evidence supporting count b-5 because of the potential impact of the juvenile court’s findings on future placement and reunification orders, or future family court proceedings. (In re John S. (2001) 88 Cal.App.4th 1140, 1143; In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)

It appears that at the time of the jurisdiction and disposition hearing, mother and father were still legally married but separated.

“On appeal from an order making jurisdictional findings, we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]” (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)

Under section 300, subdivision (b), a child will come within the juvenile court’s jurisdiction if “[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.”

“ ‘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 [child] to the defined risk of harm.’ [Citation.] ‘Thus[,] previous acts of neglect, standing alone, do not establish a substantial risk of harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]’ [Citation.]” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.) Here, there was no substantial evidence to support the juvenile court’s finding that father’s conduct placed J.R. at a substantial risk of serious physical harm or illness. The only evidence DCFS presented of father’s harmful conduct was from 2000 or earlier, over seven years before the jurisdiction hearing. Between 2000 and 2007, father had become sober and had been sober for almost four years prior to the dependency proceedings, he was receiving psychiatric treatment for his mental illness, he was complying with his parole conditions, and father had developed a positive relationship with his older daughter. There was no evidence that father had been in any domestic conflict since 2000, and father and mother had not had any contact for several years. DCFS offered no evidence suggesting that father’s previous harmful conduct would reoccur in the future. (In re Janet T. (2001) 93 Cal.App.4th 377, 388-390.)

Father had physically abused N.H., and evidence that a parent has abused a sibling may be probative of whether there is a substantial risk that the child at issue will be abused or neglected. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823.) However, there still must be evidence that, at the time of the hearing, there is a substantial risk that the child at issue will be abused or neglected. (See In re Rubisela E. (2000) 85 Cal.App.4th 177, 197 [although substantial evidence supported finding that father sexually abused daughter, agency did not make necessary showing that father’s sons were also at substantial risk of neglect or abuse].) Here, father’s conduct occurred over seven years before the jurisdiction hearing, father had since served a prison term in part due to his cruelty to N.H. (who was not his child), and father had significantly changed his life. DCFS did not establish that father’s mistreatment of N.H. indicated that J.R. was at serious risk of harm at the time of the jurisdiction hearing. (See In re David M. (2005) 134 Cal.App.4th 822, 831.) Similarly, while courts have found that a parent abuses or neglects a child by exposing her to domestic violence between adults, here DCFS offered no evidence suggesting that father’s past acts of spousal abuse would reoccur. (In re Heather A. (1997) 52 Cal.App.4th 183, 194.)

Indeed, in an interim review report filed in connection with the jurisdiction hearing, DCFS stated:

“[T]he father also presented evidence to DCFS and subsequently to the Court that he has rehabilitated his life; that he is in recovery and continues to lead a sober lifestyle. In addition, the father utilized the past six months taking parent education classes, domestic violence group counseling for batterers and submitted random drug and alcohol tests with negative results. The father willing[ly] completed these programs off a recommendation from DCFS and not because he was court-ordered. His commitment and positive response to DCFS’ recommendations indicates that the father is highly motivated, responsible, and willing to do whatever is necessary to have his daughter. Therefore, while the father’s behavior in the past placed children at risk of abuse and neglect, these issues do not appear to exist any longer.” (Italics added.)

Neither DCFS’s reports, nor the evidence supporting them suggested that the father’s past conduct placed J.R. at substantial risk of harm at the time of the hearing. (In re Janet T., supra, 93 Cal.App.4th at pp. 388, 390; cf. In re S. O. (2002) 103 Cal.App.4th 453, 462 [sufficient evidence supported jurisdictional finding where mother had made progress, but agency expressed concern about mother’s ability to protect child from abusive father].) On appeal, respondent highlights father’s past bad actions, but fails to point to any evidence indicating that, at the time of the hearing, there was a reason to believe that father’s harmful conduct would reoccur. We conclude that there was insufficient evidence to support the juvenile court’s order sustaining count b-5 of the petition and the order must therefore be reversed.

DISPOSITION

Father’s sole contention on appeal is that the trial court erred in sustaining count b-5 of the petition against him. The juvenile court’s order sustaining count b-5 as to father is vacated. In all other respects the juvenile court’s orders and judgment are affirmed.

I concur: FLIER, J.

RUBIN, J. – Concurring and Dissenting

I join in that part of the majority opinion affirming the juvenile court’s order as to mother but disagree with my colleagues in their decision to reverse jurisdictional findings against father. The majority concludes that there was insufficient evidence to support the one count sustained against father under Welfare and Institutions Code section 300(b), count b-5. The petition had alleged that domestic violence against mother and child abuse against the minor’s sibling, resulting in father’s criminal convictions, endangered the minor and placed her “at risk of physical harm, and abuse.”

There is no need for me to recite the record in detail because the relevant facts are all in the majority opinion: Father and mother had a history of domestic violence when they lived together. From 1995 through 2000, father slashed mother’s dress with a knife, split her lip when he slammed mother into a doorway, choked her, held her over a balcony, punched and kicked her in the stomach when she was pregnant with minor, threatened her with a knife when mother was holding minor, and committed other violent acts against mother. Additionally, quoting from the opinion, “On several occasions, father also hit J.R.’s older half brother, N.H., stepped on his genitals, and pinched him all over.”

These violent attacks resulted in convictions for spousal abuse and child cruelty in 2000, and father was incarcerated from 2000 to 2006. Thus, between 1995 and 2006, father was either committing unspeakable acts against mother, J.R. and her half brother or was in custody for those acts.

Father was released from prison in May of 2006. The majority described father (who previously had been using methamphetamines and marijuana continuously for over a decade) as sober for the previous four years. Of course, more than three of those years were spent in prison. Even acknowledging that father apparently has taken some important, life changing steps to discard his old ways and wants to be a proper father, these changed circumstances have developed over only a relatively short period of time. In October of 2007, a little less than a year and a half after father was released from prison, the juvenile court concluded that J.R. remained at risk.

The majority and I agree that this case is governed by the substantial evidence standard of review. (In re Veronica (2007) 157 Cal.App.4th 179, 185.) We also agree that past conduct may appropriately be a barometer of future action but it is not the final test. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.) And in making this prediction, the court’s finding must be founded in reason, on the evidence and not on speculation. (Ibid.)

The line between reason and speculation in cases such as this one is shrouded by so much of what we do not know: why parents abuse their children, why spouses abuse each other. If we knew why a father would step on the genitals of his stepson, presumably we would be able to stop or at least reduce such unmentionable conduct from occurring. In our system of juvenile jurisprudence, we trust to our trial judges the difficult task of deciding whether prior acts are likely to be repeated. Judges are not ordained with that skill, but at least the trial judge has had an opportunity to see and hear the children, to see and hear the parents, and sense their make-up, their development, their credibility (in ways far beyond the telling of truth or the telling of lies).

We as appellate judges have not had that opportunity to see or hear the participants in these proceedings. At most we are able to read transcripts of some of the hearings. That is why we defer to the trial judge in these cases unless there is truly an absence of substantial evidence. The evidence here supports the trial court’s decision: father committed serious assaults on J.R.’s sibling, punched and kicked mother in the stomach when she was pregnant with J.R. and threatened mother with a knife when she was holding the infant J.R. No one can prove that such conduct inextricably will lead to future violence or emotional abuse against J.R. But the trial judge, charged with making a difficult decision, certainly should not be faulted, as the majority essentially does today, in concluding there was substantial evidence that it would occur. For 12 years, father was assaulting his family or in prison for those offenses. At the time of the hearing he had been out of custody for only 17 months. The trial judge reasonably could have concluded that, as much progress as father had made, J.R. was still at risk. In my view, the trial court’s order, which only made jurisdictional findings and did not restrict visitation, terminate reunification services or terminate parental rights, was supported by substantial evidence and should have been affirmed in its entirety.


Summaries of

In re J.R.

California Court of Appeals, Second District, Eighth Division
Sep 30, 2008
No. B203660 (Cal. Ct. App. Sep. 30, 2008)
Case details for

In re J.R.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Sep 30, 2008

Citations

No. B203660 (Cal. Ct. App. Sep. 30, 2008)