Opinion
B318554
09-26-2023
In re ELIJAH T., a Person Coming Under the Juvenile Court Law. v. ANDREW T., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Super. Ct. No. 21CCJP05208A Jean M. Nelson, Judge. Affirmed.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
MORI, J.
Andrew T. (father) appeals from the juvenile court's jurisdictional finding and dispositional orders declaring his son, Elijah T., a dependent of the court, based on the parents' history of engaging in violent altercations in the presence of the child and father shooting mother on the freeway while she drove her vehicle with Elijah T. as a passenger.
Father argues we should reverse the juvenile court's jurisdictional finding because it was based on unreliable hearsay and speculation. We conclude the court's jurisdictional finding is supported by substantial evidence and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sonia R. (mother) and father are the parents of Elijah T., who was born in September 2020. At the initiation of the dependency case, the parents lived in separate homes. Mother resided in the home of the maternal grandparents. Elijah T. resided with mother and had visitation with father.
A. Referral Incidents, Investigation, and Department Reports
1. April 2021 Referral Incident
In April 2021, the Department of Children and Family Services (DCFS), received a report that father was beating mother in the child's presence. Father reportedly strangled mother when she went to pick up the child. The Los Angeles Police Department (LAPD) arrested father and charged him with felony domestic violence. An emergency protective order was issued to mother, identifying the child as an additional protected party. Mother was referred to counseling. Father was not prosecuted, and the referral was subsequently deemed inconclusive.
2. October 2021 Referral Incident
On October 19, 2021, DCFS received another referral after mother was brought to the hospital for gunshot injuries. According to the reporting party, mother stated father was driving his truck beside her car and fired a BB gun at her. Elijah T. was in the back seat of mother's car. Mother was to be discharged from the hospital.
An incident report dated October 19, 2021, issued by the Los Angeles County Sheriff's Department, reflects deputy sheriffs responded to a call regarding "an assault with a deadly weapon." The call stated, "[Father] shot the victim's [D]odge [C]harger. The suspect vehicle is a silver Silverado .... The suspect threw a firearm out the window of his vehicle at Lakewood Boulevard and the 105 freeway. The victim was bleeding from the head and arm."
Although the 911 call was not admitted into evidence, the detective who filed the case with the district attorney's office reported to the social worker that he reviewed the 911 call made by mother and she "clearly had stated that [f]ather was in the vehicle" from which the shots were fired. Mother proceeded to follow him in her own vehicle for a few blocks after she was shot.
When deputies arrived at the scene, mother said she was shot in the arm and head by two "unknown male Hispanics" in a silver Chevy Silverado truck. Mother said she did not see the firearm "or which male shot at her." In a follow up interview at St. Francis Medical Center, mother told a deputy sheriff that father was inside the truck, which belonged to him. Mother said she and father had been dating for three years and argued the previous day over mother not wanting to be in a relationship with father anymore. They had also been arguing for months over custody arrangements.
On October 21, 2021, a social worker spoke to mother, who stated she did not see the perpetrator and felt pressured to say it was father. Mother said she had not seen father since the domestic violence incident in April 2021.
On October 26, 2021, the social worker telephoned father who stated he had no contact with mother and the child since April 2021. Father denied the freeway shooting allegations and said he was unaware of the situation. Father also denied owning any weapons or having any gun-related arrests, despite the fact that father had been convicted of firearm possession. That same day, the social worker received an email from St. Francis Medical Center's social worker, who wrote, "Mother admitted that the perpetrator was the father of the minor. I have no other information to provide."
In 2015, father was convicted of felony burglary and sentenced to two years in prison. In September 2018, father was convicted of misdemeanor firearm possession and an alcohol-related DUI and sentenced to three years of probation. Father also had multiple arrests from 2009 through 2021, including arrests for burglary, possession of an unregistered loaded firearm, possession of a concealed weapon, and vehicle theft.
The initial referral report, generated on October 19, 2021, reflects that on October 19, 2021, a confidential reporting party (RP) called the county to report that mother had been brought to the hospital the previous day for a gunshot injury and that "mother reported that while she was driving her boyfriend (baby's father) was driving his truck besides [sic] her car and he fired a BB gun and hit her."
In an interview on December 13, 2021, mother again denied telling anyone father shot her or that he was involved. As to the April 2021 incident, mother stated father did not strike her, but they argued which resulted in some pushing and shoving. Father reiterated his denials in an interview on December 17, 2021, and relayed that with regard to the April 2021 incident, he only shoved mother out of the way to close the door.
B. Section 300 Petition
In November 2021, DCFS filed a dependency petition alleging jurisdiction over Elijah T. under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1).The identically pled counts read:
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
"The child Elijah [last name]'s mother, Sonia [last name] and Father, Andrew [last name] have a history of engaging in violent altercations in the presence of the child. On [October 19, 2021], the father shot the mother and the mother's car multiple times with BB gun while the mother drove the car and while the child was a passenger in the car. The father shot the mother's head, arm[,] and shoulder multiple times. The mother sustained swelling to the head and multiple puncture wounds to the mother's head, shoulder[,] and arm, which required immediate medical treatment. In April of 2021 and on prior occasions, the mother and father engaged in incidents of domestic violence. Such violent conduct on the part of the father towards the mother endangers the child's physical health and safety and places the child at risk of serious physical harm, damage, and danger."
C. Jurisdiction and Disposition Hearing
At the January 24, 2022, jurisdiction and disposition hearing, the juvenile court admitted into evidence various reports and attachments from DCFS without objection, including the October 19, 2021, law enforcement incident report. Father and mother did not offer any exhibits. The court proceeded with argument.
Mother's counsel submitted on the case.
Father's counsel asked the juvenile court to strike the domestic violence allegations under count a-1 in their entirety and to conform to proof the domestic violence allegations under count b-1, by striking any language about the October 2021 shooting incident. Counsel argued there was insufficient evidence father was the shooter, leaving only an allegation the parents engaged in an altercation in April 2021, which was isolated and not serious.
The juvenile court sustained the section 300 petition under subdivisions (a) and (b)(1) as pled.
In so doing, the juvenile court observed, "I do find it was father who was in the vehicle. Whether he was the actual shooter is irrelevant. It is reasonable for the court to conclude from the evidence that it was father's truck because mother would be able to recognize that truck, and it does not make any sense that somebody else would be in the truck without the father and decide to shoot mother." The court added, "I find that mother's original statements, particularly to the hospital and in the 911 call, are the most reliable" and "mother's initial disclosures to the hospital and law enforcement all point to the father." Regarding the April 2021 domestic violence incident, the court stated, "[A]nd I don't find father's statements as to that incident to be credible."
The juvenile court then proceeded to disposition, stating it would consider the same evidence from the jurisdiction hearing. The court declared the child a dependent of the court. The child was removed from father and remained released to mother under the supervision of DCFS. Father was ordered, among other things, to complete a 26-week domestic violence program for perpetrators. He was granted monitored visitation, with DCFS having discretion to liberalize the visits.
On February 14, 2022, father filed a timely notice of appeal from the jurisdiction and disposition order. Mother is not a party to this appeal.
Father does not challenge the disposition order on independent grounds, but correctly acknowledges that any jurisdiction findings must be raised upon appeal of the disposition orders. (In re Javier G. (2005) 130 Cal.App.4th 1195, 1200.)
DISCUSSION
Father contends the juvenile court's order taking jurisdiction over Elijah T. is not supported by substantial evidence. We disagree.
A. Standard of Review
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "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 I.J. (2013) 56 Cal.4th 766, 773; In re R.V. (2012) 208 Cal.App.4th 837, 843.)
B. Section 300
Section 300, subdivision (a) authorizes the juvenile court to assume jurisdiction over and adjudge to be a dependent of the court a "child [who] has suffered, or [for whom] there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent ...." (§ 300, subd. (a).) Section 300, subdivision (b)(1) authorizes the juvenile court to assume jurisdiction over and adjudge to be a dependent of the court a "child [who] has suffered, or [for whom] there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . [¶] . . . [t]he failure or inability of the child's parent . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1)(A).)
"Exposure to domestic violence may serve as the basis for dependency jurisdiction" (In re Cole L. (2021) 70 Cal.App.5th 591, 602-603) under both subdivisions (a) and (b)(1) of section 300. (Id. at p. 603; In re Giovanni F. (2010) 184 Cal.App.4th 594, 599 ["Although many cases based on exposure to domestic violence are filed under section 300, subdivision (b) [citations], section 300, subdivision (a) may also apply"]; see also In re Nathan E. (2021) 61 Cal.App.5th 114, 122 ["firmly reject[ing] . . . contention that domestic violence cannot be the basis for juvenile court jurisdiction under section 300, subdivision (a)"].)
Father does not contend otherwise and solely argues insufficient evidence to support a finding he was the perpetrator in the October 2021 incident.
C. Substantial Evidence Supports the Court's Jurisdictional Finding
Father argues that "w[h]ile the evidentiary standard to sustain a dependency jurisdiction allegation is low" it was not met in this case because "[t]he court's findings were based on unreliable and uncorroborated hearsay and unfounded speculation." We disagree.
First, DCFS offered its reports with attachments into evidence, which the court accepted without objection from either party. Thus, to the extent these reports included hearsay, they were based on competent and admissible evidence. (§ 355, subd. (b); In re James F. (2008) 42 Cal.4th 901, 915 ["a juvenile court may rely on hearsay contained in a social worker's report to support a jurisdictional finding in a dependency case"]; cf. In re B.D. (2007) 156 Cal.App.4th 975, 984-986 [hearsay may be considered at jurisdictional hearing, but upon specific hearsay objection some corroboration is necessary].)
Second, father's challenges to the evidence consist of no more than an invitation for this court to reweigh the evidence. For example, father observes that mother recanted her identification of him as the perpetrator in the freeway incident. However, the juvenile court determined that mother's initial statements in the 911 call and to hospital staff were the most reliable disclosures. These findings are reasonably supported by the overall record and were well within the factfinding province of the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [if supported by substantial evidence, findings will be upheld even if substantial evidence may exist to support a contrary finding]; In re Madison S. (2017) 15 Cal.App.5th 308, 318 [substantial evidence may include inferences "so long as any such inferences are based on logic and reason and rest on the evidence"].)
Father resists this conclusion by arguing that we should conduct an independent review in this case because the juvenile court's decision was not based on live testimony adduced at the hearing. In so arguing, father cites People v. Vivar (2021) 11 Cal.5th 510 (Vivar). Vivar, however, is not applicable here.
In Vivar, our high court held an appellate court should independently review an order denying a motion to vacate a conviction under Penal Code section 1473.7. Under that statute, a person is entitled to relief if the trial court finds there was prejudicial error affecting the person's ability to meaningfully understand the actual or potential immigration consequences of a criminal plea. (Vivar, supra, 11 Cal.5th at pp. 517, 527-528.) Vivar concluded independent review is appropriate because a section 1473.7 motion predominantly presents questions of law and is "most consistent with section 1473.7's purpose: to offer relief to those persons who suffered 'prejudicial error' but are 'no longer imprisoned or restrained' and for that reason alone are unable to pursue relief on habeas corpus." (Id. at p. 525.) The Vivar court observed that because a 1473.7 motion is "ordinarily brought many years after the plea," it is normally decided by both the trial and appellate courts on a cold record, giving the trial court no advantage in determining the credibility of the witnesses. (Id. at pp. 526-527.) However, the court expressly cautioned that its opinion solely concerned the standard of review for section 1473.7 motions and did not "disturb[] [the] familiar postulate" for substantial evidence review that "'an appellate court should defer to the factual determinations made by the trial court regardless of whether [its] rulings [were] based on oral testimony or declarations.'" (Id. at p. 528, fn. 7, internal citation omitted.)
Unlike in Vivar, dependency jurisdiction is inherently fact driven and evidence must accordingly be reviewed in the light most favorable to the juvenile court's decision. (In re I.J., supra, 56 Cal.4th at p. 773; In re L.O. (2021) 67 Cal.App.5th 227, 238, 241.) Viewed under that standard, the record amply supports the court's jurisdictional findings. (In re R.C. (2012) 210 Cal.App.4th 930, 944.) As father raises no independent challenge to the court's dispositional findings and orders, the court's orders are affirmed.
DISPOSITION
The juvenile court's jurisdictional findings and disposition orders are affirmed.
We concur: CURREY, P.J. ZUKIN, J.