Opinion
B300601
10-21-2020
In re J.P. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, v. A.P. et al., Defendants and Appellants.
Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sally Son, Deputy County Counsel, for Plaintiff and Appellant. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant A.P. Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant N.C.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 19CCJP03187A-B) APPEALS from an order of the Superior Court of Los Angeles County, Martha A. Matthews, Judge. Affirmed. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sally Son, Deputy County Counsel, for Plaintiff and Appellant. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant A.P. Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant N.C.
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I. INTRODUCTION
A.P. (father) and N.C. (mother) appeal from the dispositional order of the juvenile court. Father argues that: the juvenile court erred in its evidentiary rulings; the jurisdictional findings declaring the children J.P. and P.P. dependents of the court pursuant to Welfare and Institutions Code section 300 were not supported by substantial evidence; and removal of the children from the parents' custody was not supported by substantial evidence. Mother joins in father's argument regarding removal. The Los Angeles County Department of Children and Family Services (Department) cross-appeals, arguing that the court erred by dismissing certain counts in the dependency petition. We affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
II. BACKGROUND
A. Prior Dependency Petitions
J.P. and P.P. were five years and three years old, respectively, at the time the dependency proceedings on appeal here were initiated. J.P. was the subject of prior dependency petitions that also involved her older brother. On April 4, 2016, and June 27, 2016, the juvenile court sustained allegations that father had struck the older brother with a belt, a wooden spoon, and a paddle on his legs, arms, lower back, and buttocks. Mother knew of the physical abuse and failed to protect the older brother, which placed the older child and J.P. at risk of serious physical harm, damage, and physical abuse. B. Section 300 Petition
The older brother is not a subject of this appeal. References to "the children" refer to J.P. and P.P. only.
On May 20, 2019, the Department filed a dependency petition pursuant to section 300, subdivisions (b)(1) and (j) that alleged, as amended, the following counts:
"b-1 [and j-1]
"The child [J.P.'s] father . . . placed the child in a detrimental and endangering situation, in that the child ingested marijuana while the child was under father's care and supervision. On 5/16/19, the child had a positive toxicology screen for marijuana and required emergency medical treatment. The child's positive drug test would ordinarily not occur, except as the result of deliberate, unreasonable, and neglectful acts by the child's father, who had care, custody and control of the child. Such a detrimental and endangering situation established for the child by [ ] father endangers the child['s] physical health and safety and places the child and the child's sibling, [P.P.,] at risk of serious physical harm, damage and danger."
"b-2 [and j-2]
"On or about 5/16/19, the children['s father and mother] did not seek timely medical treatment for the child [J.P.] in that on 5/16/19 the child ingested marijuana and required medical attention. [M]other and father continuously interfered with medical staff while medical staff provided medical treatment to the child. [M]other and father's medical neglect of the child[ ] endangers the child's physical health and safety and places the child and the child's sibling, [P.P.,] at risk of serious physical harm, damage, danger failure to protect." C. Detention Report
According to the Department's detention report, filed May 20, 2019, it received a referral from a women's shelter where mother lived with the children. On May 16, 2019, following a visit with father, J.P. appeared lethargic and was nonresponsive. When a staff member at the shelter asked mother about J.P.'s condition, mother denied that anything was wrong and asked that the staff member not call the paramedics. The staff member observed that J.P. could not open her eyes and called 911.
The staff member also reported that earlier, in January 2019, mother brought J.P. to the hospital for flu treatment. But when the hospital requested lab reports, mother left the hospital with J.P.
When the paramedics arrived at about 4:00 p.m., mother refused to allow them to check on J.P. and opposed their taking J.P. away. A paramedic observed that the child, who was in mother's arms, appeared lethargic and could not open her eyes. The paramedics therefore transported J.P. to the hospital. While in the ambulance, mother had one of the paramedics speak to father on the telephone. The paramedic advised father that J.P. was in critical condition. Father yelled at the paramedic that he did not want J.P. to be treated at the hospital. Mother asked the paramedic which entrance to the hospital the ambulance would use. The paramedic then heard mother tell father that he should "'run in the back to get [J.P.]'" (Italics omitted.) Mother tried to leave the hospital with J.P. and medical staff had to intervene.
Once J.P. was admitted to the hospital, mother again refused to allow staff members to treat the child. When nurses tried to connect J.P. to monitoring equipment, mother disconnected the devices. Mother also tried to prevent nurses from drawing samples of blood and urine. Hospital security eventually had to remove mother from the hospital room. Father arrived at the hospital and made a scene in the lobby.
A social worker visited J.P. in the emergency room and observed that she was extremely drowsy. The social worker tried to wake up J.P., but the child could not keep her eyes open and could not speak. J.P. was eventually transported to a different hospital by ambulance. By about 2:00 a.m. the following morning, J.P. was awake and in the process of recovering, but she was still very groggy. J.P.'s blood tested positive for cannabinoids.
On May 16, 2019, mother stated that before the paramedics arrived, J.P. was "running around and walking up the stairs . . . ." She denied being uncooperative with the paramedics, denied trying to disconnect the monitors, and denied leaving the hospital with J.P. in January 2019. She claimed that she did not know that J.P. had ingested cannabis until she learned the results of J.P.'s blood test.
On May 16, 2019, father stated that he spent part of the week living in Las Vegas and part of the week living in California. He took J.P. to Las Vegas for her birthday and left her supervised by a friend in father's home while father worked on a car outside. When father returned to the home at 10:00 p.m., father's friend advised him that the friend had fed J.P. chicken and salad from the refrigerator. The salad dressing contained cannabis oil. Father was not concerned because father studied medicine at Everest College and psychology at Morris Brown College and knew that cannabis had no side effects and would not affect J.P. because she was full of fluids. According to father, he checked on J.P.'s heart rate and did not see any signs that she required medical attention. He allowed J.P. to stay awake until 7:30 a.m. because it was her birthday. He told mother that J.P. had eaten the salad. He admitted that he told the paramedics not to take the child to the hospital and did so because he did not believe that she required medical care. He denied plotting with mother to take J.P. away from the hospital.
The social worker observed father at the hospital and described him as being very controlling of mother. Father would direct mother on when she should speak. Mother deferred to father when asked questions and agreed with everything father said.
Father's friend told the social worker that he fed J.P. a salad that he found in the refrigerator and did not realize that the salad dressing contained cannabis oil. D. Jurisdictional/Dispositional Report
On July 3, 2019, the Department filed its jurisdictional/dispositional report. On March 26, 2019, father told a social worker that he did not know why mother had agreed to meet with the social worker since he had power of attorney over her. Father denied J.P. needed any medical treatment after ingesting marijuana, stating, "'The ingestion of marijuana itself isn't enough to take them to the doctor's and me not calling the hospital is not neglect.'" Father further stated: "'I may not be a doctor [but] I am at least certified to determine if my daughter is in critical condition and she wasn't because her vitals were normal. As a parent I have the right to say I am not comfortable [with] them going [to seek medical attention].'" According to father, cannabis was not dangerous and no one had ever died from ingesting marijuana.
On June 28, 2019, mother again denied interfering with medical staff at the hospital, and said that she left J.P.'s room when she was asked to do so. E. Jurisdictional/Dispositional Hearing
At a contested jurisdictional and dispositional hearing on September 5, 2019, mother filed a waiver of rights form and pleaded no contest to amended counts b-2 and j-2 in exchange for counts b-1 and j-1 being stricken as to her conduct.
The Department requested a continuance to serve a subpoena on the doctor and paramedic who treated J.P., and to review medical records. Father's counsel objected. The juvenile court asked whether father disputed what happened at the hospital. Father's counsel stated that father disputed "whether medical treatment was actually necessary." The juvenile court responded: "[U]nless you have an expert witness, the issue in this case is not whether medical treatment was actually necessary. The issue in this case is whether the parents were neglectful in wanting to leave the hospital before the medical staff had finished examining the child." Father's counsel offered no reply and did not suggest that he intended to offer father as an expert witness. The court denied the Department's request for a continuance.
The juvenile court then admitted a number of exhibits, including a hospital report reflecting that on January 28, 2019, mother brought J.P. to a hospital, where J.P. was "[t]riaged" for reports of a fever. J.P., however, left the hospital prior to the completion of her examination.
Father testified at the hearing that he had not intended for J.P. to ingest cannabis. Father lived alone and did not realize he needed to hide his cannabis from his children when they visited. In the future, father intended to label his items and place them out of reach of his children. Father would also ensure that other adults in the home were aware of the presence of cannabis.
Father stayed up all night with J.P. to observe her, explaining, "Well, I observed her because I fully understand the effects of edible cannabis and cannabis oil. That oil—."
The Department objected "to any extent that calls for expert testimony."
Father's counsel then made an offer of proof that father "was a certified medical assistant."
The juvenile court sustained the objection, noting: "[Father] is not an expert in the toxicity of cannabis in five-year-old girls. We're not going there."
Father's counsel proceeded with his questioning without proffering that father was in fact such an expert.
Father described J.P. as exhibiting symptoms of being "intoxicated with marijuana." J.P. acted as if she were "high." But father stated that J.P. did not experience any headaches, stomach aches, dizziness, pain, fever, confusion, or vomiting. Nor did she fall. Father did not believe J.P. needed to be seen by a doctor.
When father dropped off J.P. with mother in Los Angeles, the child was tired and lethargic, but in father's opinion, she was "fine." Father denied trying to prevent the paramedics or medical professionals from providing care to J.P. Father also denied trying to take J.P. from the hospital.
The juvenile court credited father's statement that he would try to prevent his children from ingesting cannabis in the future. It therefore dismissed counts b-1 and j-1.
The juvenile court, however, rejected father's testimony that J.P. had not required medical attention. Specifically, the court found that father had been neglectful in failing to tell mother that J.P. had ingested marijuana, even after observing that she was "high" and then lethargic. The court accepted, at "face value," father's testimony that when he dropped off J.P. with mother, she seemed tired but normal. But, when "[t]he paramedics later reported that the child was unresponsive. That she was—something was clearly wrong. The shelter staff saw that. The paramedics saw that. The medical staff at the hospital saw that. [¶] At that point, [ ] father should not have been trying to persuade people not to check out the child. Any parent who is informed your child is unresponsive, something is wrong, it does not make sense at that point to say the child doesn't need medical attention. Of course they do."
In the juvenile court's view, that the doctors eventually concluded J.P.'s treatment should be comprised of sleep, fluids, and medical observation, "doesn't prove that it would have been okay for [J.P.] not to have had medical attention in the first place." The court therefore sustained counts b-2 and j-2.
For disposition, mother requested the children be returned to her care. Mother had been participating in services and argued that continued services and unannounced home visits would be sufficient to ensure the children's safety while in mother's custody. Father joined in mother's request, and also requested unmonitored visits for himself.
The juvenile court ordered the children removed, finding that the Department had "met its burden of proof by clear and convincing evidence." The court expressed concern over both parents' conduct. In the court's view, parents who were genuinely concerned for a child's well-being would not "try and prevent the child from being examined by doctors unless there's some other explanation having to do with the parents being concerned about their own possible liability. I don't know, but it was—it didn't seem like the safety and well[-]being of that child was either parent['s] primary focus . . . ." In addition, the court observed "that there does seem to be a dynamic between [ ] mother and [ ] father that causes the court some concern in terms of [ ] mother's ability to make appropriate decisions for her children. Even though [ ] mother was there and [ ] father wasn't, [ ] mother was basically deferring to [ ] father during this medical incident. For all of those reasons, I think at this point the children are at risk and there is not, at this moment, a way to protect the children without removing them from the parent[s'] custody."
Both parents and the Department appealed.
III. DISCUSSION
A. Evidentiary Rulings
Father contends that the juvenile court erred in preventing him from testifying as an expert at the jurisdictional hearing. "We review the evidentiary rulings of the juvenile court for abuse of discretion, and will not disturb those rulings in the absence of a showing of a manifest abuse of that discretion." (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249; accord, In re Alexandria P. (2016) 1 Cal.App.5th 331, 359.)
Father asserts the court's refusal to permit him to testify as an expert was prejudicial error. We disagree.
When the juvenile court stated that it intended to deny the Department's request for a continuance because there was no expert testimony at issue in the trial, father did not disagree. Nor did father advise the court that he intended to testify as an expert until the middle of his testimony, and, even then, he did not offer an adequate proffer as to his qualifications as an expert. Father's counsel only proffered that father "was a certified medical assistant." When the court observed that father was "not an expert in the toxicity of cannabis in five-year-old girls," father did not disagree. Although father now contends that he "could have testified whether he had researched the toxicity of cannabis on juveniles, as to what licenses and/or certifications he had, what relevant classes he had taken, what relevant medical topics concerning the effects of marijuana on juveniles were covered, and what medical employment he may have had," father never made such an offer of proof to the court. Thus, he has forfeited the argument on appeal. (Evid. Code, § 354, subd. (a); In re Mark C. (1992) 7 Cal.App.4th 433, 444 ["Failure to make an adequate offer of proof precludes consideration of the alleged error on appeal"].)
In any event, even if the juvenile court had erred in its evidentiary ruling, father was not prejudiced by any such error because the court credited father's testimony that when he dropped J.P. off at the shelter, J.P. appeared lethargic but, in father's view, "fine." (See, e.g., In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 409 ["A lay witness has long been competent to testify to an opinion, 'based on his [or her] observation of facts perceptible to the senses, of the health or disease of another'"].) Even giving father the benefit of the doubt, the court concluded that father had been negligent in failing to advise mother that J.P. had ingested marijuana and in trying to interfere with the hospital staff's efforts to examine J.P. Thus, we conclude the court did not prejudicially err when it precluded father from testifying as an expert. (In re J.S. (2011) 196 Cal.App.4th 1069, 1078.) B. Jurisdictional Findings
Father argues that the juvenile court erred by sustaining counts b-2 and j-2. We review the juvenile court's jurisdictional findings for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) "'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.'" (Ibid.)
Father argues that there was insufficient evidence to support a finding that the parents placed the children at substantial risk of serious harm. Father cites the fact that J.P. did not need further medical treatment as proof that the children were not at risk of serious harm. Section 300, subdivision (b)(1) provides for juvenile court jurisdiction where, "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 or guardian to adequately supervise or protect the child, . . . , or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment . . . ."
Here, father admitted that while in his care, J.P. ingested cannabis oil, and appeared "high" and "lethargic." Nonetheless, he declined to tell mother that J.P. had ingested cannabis oil. Father credited his own expertise as a medical assistant over the advice of paramedics, doctors, and nurses, who concluded that J.P. needed to be monitored and tested for drugs. Moreover, he did not disclose to medical staff that J.P. had ingested marijuana, which would have assisted in a diagnosis of the child. The fact that, following the completion of a medical examination, J.P. ultimately required only rest and fluids does not preclude a finding of jurisdiction over her. "'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.'" (In re I.J. (2013) 56 Cal.4th 766, 773.)
Substantial evidence also supports the juvenile court's finding that P.P. was a dependent of the court. Under section 300, subdivision (j), a child is within the jurisdiction of the juvenile court if (1) the child's sibling has been abused or neglected and (2) there is a substantial risk that the child will be abused or neglected. In determining substantial risk under subdivision (j), a juvenile court must consider the following factors: "'the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.'" (In re I.J., supra, 56 Cal.4th at p. 774.) Subdivision (j) allows a juvenile court to take into consideration factors that might not be determinative if the court were adjudicating a petition filed directly under one of the other subdivisions. (Ibid.) Here, P.P. was only three years old. Given her young age, P.P. would be unable to seek assistance in obtaining medical care on her own, which supports a finding that P.P. was at substantial risk of neglect. C. Removal of Children from Mother's Custody
Mother argues the juvenile court erred by removing the children from her custody pursuant to section 361, subdivision (c)(1). Section 361, subdivision (c)(1) provides that "[a] dependent child shall not be taken from the physical custody of his or her parents . . . , unless the juvenile court finds clear and convincing evidence . . . [¶] . . . [t]here 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."
Father also appeals the removal of the children from the parents' custody. Before the juvenile court, father requested only that the children be placed in mother's custody. By failing to request below that the children be placed with him, father forfeited his argument on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1484, fn. 5.)
Father asserts in his reply brief that he can raise arguments for mother. Father, however, is not legally aggrieved by the dispositional order removing the children from mother's custody, and thus lacks standing to appeal on her behalf. (See In re K.C. (2011) 52 Cal.4th 231, 239 ["'the mere fact [that] a parent takes a position on a matter at issue in a juvenile dependency case that affects his or her child does not alone constitute a sufficient reason to establish standing to challenge an adverse ruling on it'"]; In re Holly B. (2009) 172 Cal.App.4th 1261, 1265-1266.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.)
Mother argues there were reasonable means other than removal to protect the children's health, such as transitional housing. We disagree as mother had demonstrated she was unlikely, on her own, to seek medical attention for her children. Even after observing that J.P. was nonresponsive, mother tried to prevent shelter staff from calling the paramedics, asked father to take J.P. from the hospital, tried to remove J.P. from the hospital, tried to disconnect monitoring equipment from J.P., and interfered with the nurses' efforts to obtain a blood sample from J.P.
Further, there was evidence that mother's inappropriate deference to father's decision-making placed her children at risk. After speaking to father, mother tried to remove J.P. from the hospital.
We reject mother's contention that the juvenile court improperly "speculat[ed]" that there seemed to be "'a dynamic between the [parents] which causes the court some concern in terms of . . . mother's ability to make appropriate decisions for her children'" as that statement was based on evidence.
Mother's past conduct also supported the issuance of the removal order. Less than four months prior to these events, mother removed J.P. from a hospital prior to the completion of her examination. And mother had two prior sustained findings of failing to protect her children from father's physical abuse. (In re T.V. (2013) 217 Cal.App.4th 126, 135-136; see In re N.M. (2011) 197 Cal.App.4th 159, 170 ["The court may consider a parent's past conduct as well as present circumstances"].)
Finally, mother falsely claimed that J.P., whom others described as nonresponsive, had been "running around and walking up the stairs" prior to the paramedics' arrival. She also denied being uncooperative with the paramedics, denied trying to disconnect the monitors, and denied leaving the hospital with J.P. in January 2019. (See In re A.F. (2016) 3 Cal.App.5th 283, 293 ["'[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision'"].)
We find the record contains substantial evidence from which a reasonable fact finder could have found it highly probable that placement of the children in mother's custody would pose a substantial risk of serious harm to them, and that there were no reasonable means of protecting them without removing them from mother's physical custody. D. Order for Monitored Visits
Father argues that the juvenile court erred by requiring that his visits with the children be monitored. We review the juvenile court's visitation order for abuse of discretion. (In re J.P. (2019) 37 Cal.App.5th 1111, 1119; In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095.) We evaluate whether the court "'"'"exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'"'" (In re J.P., supra, 37 Cal.App.5th at p. 1123.) Findings of fact are reviewed for substantial evidence. (In re A.R. (2015) 235 Cal.App.4th 1102, 1117.)
Here, despite observing that J.P. was "high" and then "lethargic," father did not alert mother that J.P. had ingested marijuana and made efforts to prevent J.P. from obtaining medical attention. On these facts, the court could reasonably conclude that monitored visits were in the best interest of the children. (See § 362.1, subd. (a)(1)(A) ["Visitation shall be as frequent as possible, consistent with the well-being of the child" (italics added)].) The court therefore did not abuse its discretion in ordering monitored visitation for father. E. Dismissal of Counts from Dependency Petition
In its cross-appeal, the Department argues that the juvenile court erred in dismissing counts b-1 and j-1, which alleged that J.P.'s ingestion of marijuana was caused by the deliberate, unreasonable, and neglectful acts of the parents, and placed J.P. and P.P. at risk of serious physical harm, damage, and danger. "[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7; accord, In re Aurora P. (2015) 241 Cal.App.4th 1142, 1156.)
The juvenile court found father credible when he testified that J.P.'s ingestion of marijuana was a one-time incident and preventable. For that reason, the court concluded that the children were not at substantial risk of serious harm from ingestion of marijuana in the future and dismissed counts b-1 and j-1. We do not reevaluate the juvenile court's factual findings on credibility. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The court did not err by dismissing counts b-1 and j-1.
IV. DISPOSITION
The jurisdictional findings and dispositional order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.