Opinion
B295004
04-14-2020
In re D.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DANIEL G., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. 17LJJP00248 APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Juvenile Court Referee. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Daniel G. (father) appeals the juvenile court's orders removing his daughter, D.G. (born 2014), from his custody, terminating dependency jurisdiction, and granting the child's mother sole physical custody of the child. Father contends insufficient evidence supports the court's jurisdiction findings under Welfare and Institutions Code section 300, subdivision (b), that father's neglectful conduct resulting in severe physical injuries to an unrelated child, and father's mental and emotional problems, placed D.G. at serious risk of physical harm. Father also contends the court abused its discretion when it issued the family law exit order awarding mother sole physical custody of D.G. and limiting father to weekly visitation. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
D.G. came to the attention of the Department of Children and Family Services (Department) after the 18-month-old son of father's fiancé was severely injured while in father's care.
1. The Unrelated Child Incident
In June 2017, father and D.G.'s mother, Bridget T. (mother), were separated and shared custody of D.G. under a family law order. At the time, father was engaged to Kayla L., and he lived with Kayla, her son C.M. (born 2015), and her daughter B.M. (born 2009). D.G. lived with father during part of the week and on alternating weekends.
Christopher M. is the father of C.M. and B.M. Christopher M., Kayla L., and mother are not parties to this appeal.
On June 9, 2017, C.M.'s father, Christopher, took C.M. to the hospital after the maternal grandparents noticed the child was "acting lethargic and was not his usual self." Doctors who examined the child concluded he had suffered a fracture to the left side of his skull where the hairline starts, a subdural hematoma, a bruise to the back of his head, and second degree burns to both his feet.
Father, Kayla, and Christopher were interviewed by hospital staff and law enforcement. All three adults confirmed that C.M. was alone with father at the time the child sustained his injuries. Kayla and father told hospital staff that C.M. had suffered the head injuries after the child tripped and fell on the carpet while being chased by father. Father later reported that C.M.'s sister had hit the child on the head with a "light saber," which may also have caused the child's head injuries.
Kayla and father claimed C.M. suffered the burns to his feet the same day he injured his head. C.M. followed father, who was picking weeds, into the backyard and stood barefoot on the concrete for about one or two minutes. According to father, it was around 98 degrees outside at the time, and he didn't notice C.M. had followed him into the backyard until the child started yelling and crying. Father, who reported he used to be an "EMT," did not take the child to the hospital because it "did not seem like a big deal."
Several doctors who examined C.M. questioned father's and Kayla's explanations for the child's injuries. According to the first doctor, C.M.'s head injuries "were not consistent with the story given because the child could not have sustained that type of injury from falling from a standing position." Rather, "that type of injury is caused by falling from a higher level, with more force," and "based on where the facture is on [C.M.'s] head[,] he could not have sustained the injury if he fell forward while running ... because the fracture is at the start of the hairline." The second doctor believed C.M. could have sustained the fracture to the front of his skull, but not the bruise to the back of his head, from falling face first. However, the second doctor opined "[i]t would be 'weird, especially if the child fell on a carpet[;] it would seem more likely that the injury was sustained if he fell on a wooden floor or concrete.' " A third doctor, a pediatric specialist, believed C.M. had suffered two separate head injuries that "were indicative of a 'high force trauma event' and that the timelines for the injuries were not consistent with the stories given by [father.]"
As for the injuries to C.M.'s feet, the first doctor believed "the child could not have sustained second degree burns just by going outside barefoot and that the child must have been standing outside on the concrete for a longer time." The pediatric specialist believed C.M.'s burns "were unlikely to have been caused by hot concrete or asphalt, and [were] more consistent with burns caused by a 'sun heated metal surface.' " According to the pediatric specialist, "it was more likely that the 'caregiver either placed [C.M.] on the hot pavement and then didn't pick him up promptly when he began to cry in pain, or pressed the child's soles into a hot surface.' "
The pediatric specialist told the Department that " '[l]aw enforcement should be investigating this case. It is a pretty severe case of child abuse.' " The pediatric specialist concluded, " '[C.M.'s] skull fracture is a very high force fracture that I think is abusive in origin, and the feet burns represent either neglect or abuse.' "
After C.M. was brought to the hospital, the child's maternal grandmother told a detective that Kayla had instructed her to lie about where C.M. had been on the day he suffered his injuries. According to the grandmother, Kayla wanted her to tell the police the child had been in the grandmother's, and not father's, care when he was injured. The detective believed the child's injuries were "weird" and that Kayla's request to have the grandmother lie about the injuries "makes things more suspicious."
One of the nurses who interacted with the parents reported that father was acting "weird" and "overbearing," answering questions for Kayla and trying to prevent her from speaking to other people at the hospital. Another nurse reported that father was acting "weird," "overcompensating," and making "aggressive faces at another hospital worker." That nurse had "been waiting on [a social worker] to detain [C.M.] because the stories that [Kayla] and [father] had given do not seem like they would cause the injuries the child sustained."
On June 14, 2017, the Department filed a dependency petition on behalf of C.M. and B.M. The petition alleged Kayla's "neglectful, unreasonable, and deliberate" conduct resulting in C.M.'s injuries, and Kayla's failure to immediately seek medical treatment for the child, placed C.M. and his sister at serious risk of physical harm.
2. The Initiation of D.G.'s Dependency Proceedings
In November 2017, the Department began investigating D.G. One of the investigators from C.M.'s and B.M.'s dependency case told the Department that while it would be "difficult to 'pin criminal implication' " on father for C.M.'s injuries, "they had substantial evidence from a medical specialist that the burns that occurred on [C.M.'s] feet while in [father's] care were indicative of abuse or neglect." Although father was never added to the petition in C.M.'s and B.M.'s case, the investigator believed "new medical assessments" of C.M.'s injuries could implicate father in the child's abuse. According to the investigator, father's "stories about how [C.M.'s] injuries happen[ed] 'never add up or make sense[.]' " The investigator believed "there is [a] definite risk" if D.G. were to remain in father's care, and the social worker handling C.M.'s and B.M.'s case believed father "presented a significant threat to the health and safety of children in his care."
The Department interviewed mother. Father was verbally abusive during their relationship. Although he was generally kind toward D.G., father was often "cruel and controlling" toward mother, cursing at her and "calling her names in front of [D.G.]." On one occasion while mother and father were in a relationship, father tried to hang himself after mother threatened to break up with him. Mother found father in the garage with a chain wrapped around his neck, and she pulled him down before he could hurt himself. On a separate occasion during their relationship, father stalked around the house with a knife, muttering about trying to kill himself or stabbing someone else.
According to mother, D.G. had recently become more clingy, and her sleeping patterns had changed, since she started spending more time with father. D.G. told mother that father would often leave her alone with Kayla.
Father was upset that the Department had started investigating D.G. because of father's role in the incident leading to C.M.'s injuries. Father claimed C.M. had only come to the Department's attention "because of an 'accident.' " Father denied any responsibility for C.M.'s injuries, insisting what happened to the child "had nothing to do with him." Father blamed mother for the Department's investigation because she was "always trying to cause trouble." According to father, mother "was doing this in retaliation and ... Kayla had her children removed for 'no reason.' " Father claimed D.G. was safe in his custody, and he denied ever allowing D.G. to be alone with Kayla.
On December 1, 2017, the court authorized the Department to remove D.G. from father's custody. Less than a week later, the Department filed a dependency petition on D.G.'s behalf, which alleged: (1) the fact that C.M. suffered several severe injuries while under father's supervision places D.G. at serious risk of physical harm in father's care (a-1 and b-1 allegations); and (2) father's mental health issues, including bizarre behavior and suicidal and homicidal ideations, place D.G. at serious risk of physical harm (b-2 allegation).
At the detention hearing, the court found father was D.G.'s presumed father and that the Department had alleged a prima facie case under section 300. The court ordered D.G. detained from father's custody only and granted father monitored visits with the child.
3. Adjudication
The Department interviewed the family in January and February 2018. Father continued to deny any wrongdoing with respect to C.M.'s injuries. Nevertheless, he had recently enrolled in a 12-week parenting program and started seeing a therapist. In late January 2018, father's therapist issued a letter stating that father had attended two counseling sessions. The therapist believed it would be in D.G.'s best interests to maintain daily visitation with father. The therapist's letter does not indicate, however, whether the therapist ever met or otherwise observed D.G.
Father confirmed that C.M.'s feet were burned while the child was in his care, but he insisted the injuries were accidental. Father denied suffering from any mental health issues. He believed mother had fabricated the allegations about him trying to kill himself and threatening to stab other people to gain an "advantage" during their family court proceedings. Father believed he was "100 percent," and he was willing to submit to a psychological evaluation to prove he's mentally stable.
Mother confirmed that father had tried to kill himself in the summer of 2013 after they got into an argument over their relationship. Mother also reported a separate incident that occurred on Thanksgiving in 2013. Father jumped out of mother's car while it was moving about 30 miles per hour after they got into an argument.
Father's visits with D.G. since the detention hearing had been successful. Father behaved appropriately, and D.G. appeared happy and comfortable when she was with him. After several of the visits, D.G. told father that she wanted to go home with him.
Father did, however, engage in strange behavior with respect to one of the visitation monitors, the sister of mother's current boyfriend. The monitor reported that she found father sitting in his car outside her house after she had refused to give him her contact information. When she walked outside, father waved at her and drove off. The monitor told the Department that father's behavior "terrified" her and made her uncomfortable.
The court conducted a multi-day jurisdiction hearing in August 2018. Father testified. Father confirmed that he was the only adult watching C.M. when the child suffered the burns to his feet. Father couldn't recall if C.M. suffered the injuries to his head the same day he burned his feet or the day before, but he believed Kayla was home when C.M. injured his head.
Father denied that he had ever been diagnosed with a mental illness or involuntarily hospitalized for psychiatric reasons. He also denied ever jumping out of mother's car, attempting to kill himself, or expressing suicidal or homicidal ideations. Father had no reservations about allowing D.G. to be left alone with Kayla.
The court sustained the petition's b-1 and b-2 allegations and dismissed the a-1 allegation. With respect to the b-1 allegation, the court found C.M. suffered second degree burns to his feet which would not have occurred except as a result of unreasonable and neglectful acts by father. The court struck language in the allegation that C.M. suffered the head injuries while in father's care and that C.M.'s injuries were caused by father's deliberate conduct. Accordingly, as amended, the sustained allegations read:
B-1: "On our about 6/9/17, an unrelated one year old child, [C.M.], was hospitalized and found to be suffering a detrimental condition while in the care and supervision of [father]. The unrelated child sustained a hairline skull fracture, a subdural hematoma, second degree burns to [his] feet, and bruising and swelling to [his] head. Such injuries would not ordinarily occur except as the result of deliberate, unreasonable and neglectful acts by [father], who had care and control of the unrelated child. Such deliberate, unreasonable and neglectful acts of the unrelated child, on the part of father endangers [D.G.'s] physical health, safety and well-being and places the child at risk of serious physical harm, damage, danger and death."
B-2: "[Father] has mental and emotional problems including bizarre behaviors, suicidal and homicidal ideation and a suicide attempt which renders the father incapable of providing regular care and supervision of the child. Such mental and emotional condition on the part of the father endangers [D.G.'s] physical health and safety and places the child at risk of serious physical harm and damage."
The court ordered D.G. to remain placed with mother under the Department's supervision, and it ordered the Department to provide father family maintenance services. The court scheduled the disposition hearing for late 2018.
4. Disposition
After the jurisdiction hearing, father continued to visit D.G. on a weekly basis. According to mother, "visits between the child and father [were] going well with no concerns to report." Father behaved appropriately around D.G. and could correct the child when she misbehaved. Father also had completed a 12-week parenting program, and he was still attending individual counseling.
On December 18, 2018, the court held the disposition hearing. One of the Department's social workers who had monitored several visits between D.G. and father testified. The social worker did not observe father engage in any concerning behavior during the visits. Father properly cared for D.G., and the child enjoyed being around father, telling the social worker she wanted to have "more time" with him. Although father behaved appropriately during visits, the social worker was concerned about D.G.'s safety should she be placed in father's custody. Father lacked "a protective capacity," and the social worker was concerned that father would not "be truthful and forthcoming" if D.G. were injured or otherwise endangered while in his care.
After declaring D.G. a dependent child, the court terminated jurisdiction and issued a family law exit order. The court granted mother and father joint legal custody, mother sole physical custody, and father unmonitored weekly visits.
Father appeals.
DISCUSSION
1. The Jurisdiction Findings
Father contends insufficient evidence supports the court's jurisdiction findings. As we explain, substantial evidence supports the court's finding sustaining the b-1 allegation—that father's negligent conduct during the incident leading to C.M.'s injuries placed D.G. at risk of serious physical harm. The court, therefore, properly exercised jurisdiction over D.G.
1.1. Applicable Law and Standard of Review
To support a jurisdiction finding, the Department must prove by a preponderance of the evidence that the child is a dependent of the court as described by section 300. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 (Yolanda L.).) A court may exercise jurisdiction over a child under section 300, subdivision (b)(1), 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 ... to adequately supervise or protect the child ... ." (§ 300, subd. (b)(1).) Section 300, subdivision (b)(1) does not require the Department to prove neglectful conduct by a parent. (In re R.T. (2017) 3 Cal.5th 622, 624, 629 [dependency jurisdiction may be established under section 300, subdivision (b), without a finding that the parent is at fault or blameworthy for failure or inability to supervise or protect child].)
"The juvenile court need not wait until a child is seriously injured to assume jurisdiction if there is evidence that the child is at risk of future harm from the parent's negligent conduct. [Citation.]" (Yolanda L., supra, 7 Cal.App.5th at p. 993.) To show the child faces a risk of harm at the time of the jurisdiction hearing, "there must be some reason beyond mere speculation to believe the alleged conduct will recur." (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) In determining whether conduct is likely to recur in the future, courts may consider evidence of the parent's behavior in the past. (In re N.M. (2011) 197 Cal.App.4th 159, 165 (N.M.).) A parent's denial of wrongdoing or failure to recognize the negative impact of his conduct is also relevant to determining risk under section 300. (In re Tania S. (1992) 5 Cal.App.4th 728, 735, fn. 4; see also 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 review a juvenile court's jurisdiction findings for substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.) We will affirm the findings if they are supported by evidence that is reasonable, credible, and of solid value. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) "We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. [Citation.]" (Ibid.)
1.2. Substantial evidence supports the b-1 allegation.
Father does not dispute that C.M. suffered serious injuries—second degree burns on his feet—while the child was alone in his care. Father insists, however, that his " 'unreasonable and neglectful' " supervision of C.M. did not place D.G. at a current risk of physical harm because D.G. is older than C.M., she shares a close bond with father, and father never physically abused or neglected her. Father's argument lacks merit.
The circumstances surrounding C.M.'s injuries show that father lacks the necessary parenting skills to ensure a young child like D.G. would be safe in his care. Father admitted he left C.M., who was only 18 months old, unsupervised inside Kayla's home while father went outside to pick weeds. As a result of father's failure to supervise C.M., the child walked barefoot outside and seriously injured his feet. While D.G. is older than C.M., she is only one and a half years older, and she was only four years old at the time of the jurisdiction hearing. D.G., like C.M., is therefore too young to be left without parental supervision. Accordingly, father's failure to adequately supervise a young child supports a finding that D.G. would be at serious risk of physical harm in father's care. (See § 355.1, subd. (b) ["Proof that either parent, the guardian, or other person who has the care or custody of a minor who is the subject of a petition filed under Section 300 has physically abused, neglected, or cruelly treated another minor shall be admissible in evidence]; see also In re Y.G. (2009) 175 Cal.App.4th 109, 114-116 (Y.G.) [evidence of a parent's negligent conduct resulting in harm to an unrelated child may support a finding that the parent's own child faces a serious risk of physical harm in the parent's care]; N.M., supra, 197 Cal.App.4th at p. 165 [a parent's past conduct is probative of a current risk of harm to the parent's child].)
Father also failed to respond to C.M.'s injuries in an appropriate manner. Although father noticed C.M. was in pain and that the child's feet were red and had started to blister, father failed to seek any medical treatment for the child. Father, who claimed to have emergency medical training, told the Department he didn't think what happened to C.M.'s feet was a "big deal," even though two doctors who later examined C.M. concluded the injuries to the child's feet were severe. Father's misperception of the severity of C.M.'s injuries, and his failure to seek medical treatment for C.M., support an inference that father lacks the ability to protect the physical safety of a young child like D.G.
The lack of evidence that father ever abused or neglected D.G. does not mean that the child didn't face a risk of harm in his care at the time of the jurisdiction hearing. Leading up to the jurisdiction hearing, father repeatedly denied responsibility for, and tried to minimize the seriousness of, C.M.'s injuries. When the Department began investigating D.G., father claimed C.M.'s injuries "had nothing to do with him" and that Kayla had her children taken away for " 'no reason,' " even though he had previously admitted to medical, law enforcement, and Department personnel that the child was alone in his care at the time of the injuries. Father also deflected blame onto mother for D.G. coming to the Department's attention, even though mother was uninvolved in the incidents leading to C.M.'s injuries. Based on father's minimization, failure to accept responsibility, and deflection of blame, the court reasonably could conclude that father's conduct leading to C.M.'s injuries placed D.G. at a current risk of physical harm. (See In re Petra B. (1989) 216 Cal.App.3d 1163, 1170 [a parent's failure to recognize responsibility or to appreciate the severity of his conduct causing the child to come to the court's attention supports a finding that the parent's negative behavior is likely to recur].)
Father's reliance on Y.G. is misplaced. In Y.G., the appellate court affirmed the juvenile court's jurisdiction findings under section 300, subdivision (b), that the mother's physical abuse of an unrelated minor placed the mother's own children at risk of harm. (Y.G., supra, 175 Cal.App.4th at pp. 114-116.) Father contends that because the court in this case found he engaged in only negligent conduct toward an unrelated child, as opposed to intentional physical abuse of an unrelated child like the mother in Y.G., his conduct cannot support jurisdiction over D.G. under section 300, subdivision (b). We disagree.
While it is true that the mother's conduct supporting the jurisdiction finding in Y.G. involved physical abuse, nothing in that opinion limits jurisdiction arising out of injuries sustained by a child unrelated to the dependent minor to only physical abuse. (See Y.G., supra, 175 Cal.App.4th at pp. 114-116.) Indeed, the Court of Appeal in Y.G. confirmed that, under section 355.1, subdivision (b), evidence that a parent has " 'physically abused, neglected, or cruelly mistreated another minor' " may be used to prove that the parent's child faces a serious risk of harm as a result of the parent's conduct. (Y.G., at pp. 115-116, bold emphasis added.) Father cites no authority to support the proposition that only physical abuse, and not neglect, of an unrelated minor may support a jurisdiction finding under section 300, subdivision (b). We therefore reject father's argument.
The Department argues that, under section 355.1, subdivision (a), father's neglectful conduct resulting in C.M.'s injuries constitutes prima facie evidence that D.G. is a dependent child under section 300. (See § 355.1, subd. (a) ["Where the court finds, based upon competent professional evidence, that an injury, injuries, or detrimental condition sustained by a minor is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300."].) While that statute appears to apply only when the minor who is the subject of the petition has sustained an injury, as opposed to when an unrelated minor who is not subject to the petition has sustained an injury, we need not decide whether the statute applies here. For the reasons discussed above, there was ample evidence, independent of any presumption under section 355.1, subdivision (a), to support a finding that father's negligent conduct toward C.M. placed D.G. at serious risk of harm.
Because the court properly established jurisdiction over D.G. for the reasons discussed above, we need not address father's challenge to the sufficiency of the evidence supporting the b-2 allegation—that father's mental health issues placed D.G. at risk of physical harm. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [a single jurisdiction finding against one parent is sufficient to maintain dependency jurisdiction over a child].)
2. The court did not abuse its discretion when it issued the family law exit order.
When a juvenile court terminates dependency jurisdiction, it has the authority to issue orders concerning custody and visitation—commonly known as "exit" orders—that will remain in effect after dependency jurisdiction is terminated. (§ 362.4, subd. (a); In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353, 1358.) When deciding between which parent to award custody, the juvenile court's "focus and primary consideration must always be the best interests of the child." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) The court has broad discretion when it makes custody determinations. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) We therefore review a juvenile court's order terminating dependency jurisdiction and making an exit order pursuant to section 362.4 for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.) We may not disturb such an order unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Ibid.)
The court did not abuse its discretion in issuing the family law exit order awarding mother sole physical custody of D.G. Throughout the dependency proceedings, D.G. lived with mother, who provided the child a safe, nurturing, and stable living environment. Nothing in the record suggests that mother could not continue to do so once the court terminated jurisdiction.
Father, on the other hand, failed to demonstrate he could safely care for D.G. should she remain in his custody. As we just discussed, father displayed a lack of adequate parenting skills when he allowed C.M. to suffer serious injuries while the child was under father's supervision. Although father started to attend therapy and completed a parenting program after D.G. came to the court's attention, father continued to demonstrate a lack of insight into the issues that led to D.G. becoming a dependent of the court. For example, father testified at the jurisdiction hearing that he had no concerns about leaving D.G. alone with Kayla even though the Department was investigating Kayla for her role in the events that led to C.M.'s injuries. In addition, numerous medical professionals, law enforcement personnel, and Department officials who observed C.M. and interacted with the family believed father posed a serious risk to the safety of any child in his care. Based on this evidence, the court reasonably could conclude that it would not be in D.G.'s best interests to live with father. The court, therefore, acted well within its discretion when it awarded mother sole physical custody of the child.
DISPOSITION
The disposition and family law exit orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.