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L.A. Cnty. Dep't of Children & Family Servs. v. Jesus J. (In re Jaycob A.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Jan 21, 2020
No. B297869 (Cal. Ct. App. Jan. 21, 2020)

Opinion

B297869

01-21-2020

In re JAYCOB A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JESUS J., Defendant and Appellant.

Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey M. Blount, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP01000A) APPEAL from a judgment of the Los Angeles County Superior Court, Stephen C. Marpet, Juvenile Court Referee. Affirmed. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey M. Blount, Senior Deputy County Counsel, for Plaintiff and Respondent.

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Jesus J., father of Jaycob A., appeals the juvenile court's jurisdiction finding and disposition order declaring then-two-year-old Jaycob a dependent of the juvenile court, removing him from Jesus's custody, releasing him to his mother's custody and terminating dependency jurisdiction with an order granting Jaycob's parents joint legal custody and Jaycob's mother sole physical custody and limiting Jesus to monitored visitation. Jesus contends the court's jurisdiction findings that Jaycob was at substantial risk of serious physical harm in Jesus's care and the court's disposition order removing Jaycob from his custody are not supported by substantial evidence. Because the juvenile court's custody/visitation order was based on unsupported findings, Jesus argues, that order cannot stand. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petition

On February 14, 2019 the Los Angeles County Department of Children and Family Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm inflicted nonaccidentally) and (b)(1) (serious physical harm as a result of the failure or inability to protect the child), alleging Jesus had pinched Jaycob's legs and grabbed and bit Jaycob's face with such force as to cause significant bruising and Jaycob's mother, Ariana F., had failed to protect Jaycob from the abuse by allowing Jesus unmonitored access to Jaycob through their informal shared custody arrangement. The court detained Jaycob following a section 319 hearing and released him to Ariana's custody pending further order of the court.

Statutory references are to this code.

2. The Jurisdiction/Disposition Hearing

The contested jurisdiction hearing, which was continued several times, occurred on May 3, 2019. According to the evidence presented by the Department, Ariana and Jesus never married and ended their short intimate relationship during Ariana's pregnancy. Jesus became involved in Jaycob's life in November 2017 when Jaycob was nearly one year old, and Jesus and Ariana agreed informally to share custody of Jaycob.

In January 2018 Ariana saw Jesus "smack" Jaycob's mouth to discipline him. The same month she saw Jesus pinch Jaycob's thighs to force him to get into his car seat. Jaycob suffered bruising to his thighs. On both occasions, when Ariana confronted Jesus about inappropriate discipline, Jesus dismissed her concerns, telling her it was not illegal for a parent to pinch his child and such discipline was necessary and appropriate.

In April 2018 Jaycob returned from a visit with Jesus with a bruise on his face. As a result, Ariana did not permit Jesus to see Jaycob for several months. In July 2018, after Jesus assured her he would not hurt Jaycob, Ariana and Jesus resumed their shared custody arrangement. In August 2018 Jaycob returned from a visit with Jesus with bruises on his cheek and pinch marks on his arm. When Ariana asked what had happened, Jesus told her he had squeezed or kissed Jaycob's cheeks lovingly, and the red marks on Jaycob's arm were most likely mosquito bites. Ariana did not believe the red marks were mosquito bites.

Jesus denied Ariana had ever prohibited him from seeing Jaycob.

In December 2018, when Ariana picked Jaycob up from a two-night visit with Jesus, she saw significant bruising on Jaycob's face. Jesus ignored Ariana's requests for an explanation. Along with the Jaycob's fresh bruises, Ariana also noticed Jaycob was acting strangely. He was withdrawn and refused to eat. Ariana brought Jaycob to the hospital. The physician and hospital social worker observed fresh bruising on Jaycob's checks that resembled a handprint over Jaycob's mouth—a thumbprint on Jaycob's left cheek and three or four fingers on the right—that was consistent with having been grabbed by force. The Department submitted photographs of Jaycob's bruises with its jurisdiction report. In January 2019 Ariana petitioned the family court for full custody of Jaycob.

Jesus's other children, then-seven-year-old Ethan and five-year-old Ariel (Jaycob's half-siblings), live part time with Jesus, who shares custody with their mother. Ethan told the Department Jesus was "mean" to Jaycob. He explained, sometimes when Jesus became angry with Jaycob, he grabbed Jaycob's shirt and bit his cheeks. Ethan stated Jaycob does not like when Jesus "plays with him because he keeps getting hurt when my dad bites his cheeks." Both children reported Jesus bit Jaycob's cheeks and did not bite their cheeks. Both Ethan and Ariel told the Department that Jesus becomes upset with Jaycob when Jaycob refuses to eat. When that happens, Jesus grabs Jaycob's face and pinches his nose so Jaycob cannot breathe. As Jaycob opens his mouth to breathe, Jesus forces food into it. Asked Jaycob's reaction, Ethan explained, "[Jaycob] doesn't like it, he cries" and spits out the food.

Jaycob's babysitter told the Department she had seen light bruising on Jaycob's face following his December 2018 visit with Jesus and noticed Jaycob had become fearful of Jesus since that time. Whenever Jaycob heard a knock on the door, he would ask her anxiously if Jesus was there to take him.

A Monrovia Police Department detective investigated the December 2018 incident and spoke with Jesus, Ariana, Ethan, Ariel and Jaycob's babysitter. Jesus told the detective he had not noticed any bruising on Jaycob's face when he returned Jaycob to Ariana's custody following Jaycob's December 2018 visit. Jesus told the detective he liked to kiss Jaycob's cheeks because "they are so chubby." Ariana told the detective Jesus may have bruised Jaycob when he bit his cheeks, explaining this was the way Jesus "showed his love." Jaycob's babysitter told the detective Jesus was "a good father." After urging Jesus to be "more careful" with Jaycob, the detective closed his investigation on December 19, 2018, concluding Jaycob's bruises "were not caused by excessive discipline or malicious intent" and labeled any claim of physical abuse as "unfounded."

Jesus testified at the jurisdiction hearing and denied using physical discipline on any of his children, including Jaycob. Jesus insisted he only used "positive reinforcement." He acknowledged pinching Jaycob's thighs on one occasion "a long time ago." He did not grab Jaycob's face or mouth in December 2018 or at any previous time. He may have kissed Jaycob and sucked on his cheeks playfully and lovingly, but never with any intent to harm. He never saw any bruises on Jaycob's face.

The Department and Jaycob's counsel urged the court to sustain the allegations against Jesus. Ariana's counsel requested the court strike the allegations against her for lack of evidence, which Jaycob's counsel also supported. Jesus argued the entire petition should be dismissed for lack of evidence.

The juvenile court struck the allegations involving Ariana and sustained the petition as amended, finding Jaycob to be a person described under section 300, subdivisions (a) and (b)(1).

The court sustained identically worded allegations under subdivisions (a) and (b)(1) that, "[o]n prior occasions, the child, Jaycob['s] father, Jesus [J.], physically abused the child by pinching, grabbing and biting the child's face, inflicting marks and bruises on the child's face. On a prior occasion, the father struck the child's mouth. The father pinched the child's leg. On 12/10/2018, the child was medically examined and found to have bruising on the child's cheeks. Such physical abuse was excessive and caused the child unreasonable pain and suffering. The child is afraid of the father due to the father's physical abuse of the child. The physical abuse of the child by the father endangers the child's physical health and safety and places the child at risk of serious physical harm, damage, physical abuse and failure to protect." There was no explanation by the Department or the court how Jesus's intentional conduct could create both a substantial risk of serious physical harm to Jaycob inflicted "nonaccidentally" by Jesus, as required by subdivision (a), and a substantial risk of serious physical harm as a result of Jesus's failure or inability to protect the child, under subdivision (b)(1).

Moving to disposition, the court declared Jaycob a dependent child of the juvenile court, removed him from Jesus's custody and released him to Ariana's custody. Ariana requested the court terminate jurisdiction with an order granting her full custody. Jesus objected to termination of jurisdiction and sought family reunification services. The court overruled Jesus's request and, citing section 361.2, subdivision (b), terminated its jurisdiction with a custody order giving both parents joint legal custody and Ariana sole physical custody of Jaycob with monitored visitation for Jesus.

Because Ariana was a custodial parent, the court's reliance on section 361.2, subdivision (b), as the statutory basis to terminate jurisdiction was improper. Nevertheless, we have recognized the juvenile court's authority in an appropriate case to terminate its jurisdiction at disposition with orders in place securing the safety of the child. (See In re Destiny D. (2017) 15 Cal.App.5th 197, 205-208 [court's citation to wrong statute to terminate jurisdiction harmless error; court's statutory authority under section 245.5 to make any reasonable orders necessary to protect the dependent child includes the power to terminate jurisdiction at disposition if child welfare services and continued court supervision are no longer necessary to protect the child]; cf. In re Anthony Q. (2016) 5 Cal.App.5th 336, 339 [court's reliance on incorrect statute as basis for removal was harmless error].)

The court told Jesus that, had it retained jurisdiction, it would have ordered him to complete a 26-week parenting class and individual counseling and advised Jesus to complete those classes/counseling before seeking modification of the custody/visitation order in the family court. The court's May 10, 2019 juvenile custody order, prepared on Judicial Council forms JV-200, JV-205 and JV-206, identifies Jesus's need to complete parenting classes and individual counseling as the basis for the court's monitored visitation order.

DISCUSSION

1. Governing Law and Standard of Review

Section 300, subdivision (a), provides that jurisdiction may be assumed if "[t]he child has suffered, or there is a substantial risk the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian that indicate the child is at risk of serious physical harm. . . . '[S]erious physical harm' does not include reasonable and age-appropriate spanking to the buttocks if there is no evidence of serious physical injury."

Although section 300 requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing (In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383; In re N.M. (2011) 197 Cal.App.4th 159, 165.) The court may consider past events in deciding whether a child presently needs the court's protection. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) A parent's "'[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue.'" (In re S.O. (2002) 103 Cal.App.4th 453, 461; accord, In Kadence P., at p. 1384.)

"'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 [juvenile] court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the [juvenile] court. [Citations.] '"[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]."'"'" (In re I.J. (2013) 56 Cal.4th 766, 773; accord, In re I.C. (2018) 4 Cal.5th 869, 892.)

2. Substantial Evidence Supports the Court's Jurisdiction Finding Under Section 300 , Subdivision (a)

Relying on In re Isabella F. (2014) 226 Cal.App.4th 128 (Isabella F.), Jesus characterizes Jaycob's bruises as minor injuries caused by acts of love, not cruelty, and contends there was no substantial evidence Jaycob suffered, or was at substantial risk of suffering, "serious physical harm" to support jurisdiction under section 300, subdivision (a). In Isabella F., 10-year-old Isabella suffered fingernail scratches to her face and earlobe and a small cut on her cheekbone that her mother inflicted when trying to control Isabella during the child's tantrum. The juvenile court sustained a section 300 petition that alleged Isabella had suffered, and was at substantial risk of suffering, serious physical harm (§ 300, subd. (a)) and released her to her mother's custody under the supervision of the Sonoma County Human Services Department. (Isabella F., at pp. 134-135.)

On appeal Isabella's mother argued the jurisdiction finding was not supported by substantial evidence of serious physical harm, and the court's desire to grant services, without more, was not an adequate basis for the exercise of dependency jurisdiction. The appellate court agreed with the mother and reversed the jurisdiction finding for insufficient evidence of serious physical harm. (Isabella F., supra, 226 Cal.App.4th at p. 140 [absent evidence indicating the child is exposed to a substantial risk of serious physical harm, jurisdiction is improper].) The court described Isabella's injuries as relatively minor in nature. Although the court recognized repeated instances of less serious injury can be a basis for jurisdiction under section 300, subdivision (a), it emphasized that the incident that triggered the section 300 petition was an isolated one and there was no evidence of any pattern of abuse. (See Isabella F., at p. 139 ["We recognize that section 300, subdivision (a) may apply when a minor suffers less serious injuries but there is a history of repeated abuse. [Citation.] But that is not the case here, where Isabella reported this was an isolated incident, and there is nothing in the record to suggest otherwise."].)

Here, in contrast to Isabella F., there was substantial evidence of a pattern of harmful conduct. Jaycob suffered bruising to his face in August 2018 and again in December 2018, only a few months later. Jesus's other two children described his practice of biting Jaycob's cheeks in anger and wrapping his hand around Jaycob's nose and mouth to get him to eat. Ariana reported she had seen Jesus slap Jaycob in the mouth and pinch his legs as early as January 2018, soon after Jesus became involved in Jaycob's life. In addition, after the incident in December 2018, Jaycob had become noticeably afraid of Jesus.

Jesus contends his behavior, at most, amounts to reasonable parental discipline that is insufficient to support jurisdiction under section 300. (See generally In re D.M. (2015) 242 Cal.App.4th 634, 640-642 [section 300 protects against excessive discipline, not reasonable discipline; spanking child on the buttocks with hand or sandal did not constitute serious physical harm under section 300].) We have no difficulty concluding that repeated instances of grabbing a two-year-old child with such force as to leave long-lasting bruising on multiple occasions are excessive and placed Jaycob at risk of serious physical harm. (See In re D.P. (2014) 225 Cal.App.4th 898, 903 [bruises and bite marks on one-year-old's face and body deliberately inflicted by mother were substantial evidence of serious physical harm supporting jurisdiction under section 300, subdivision (a)]; In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1472 [repeated pinching of two-year-old child that left "visible pinch marks" supported dependency jurisdiction under section 300, subdivision (a)].)

Jesus asserts he lacked intent to harm Jaycob and stresses the detective's report determining that any abuse claim relating to the December 2018 incident was "unfounded." A finding under section 300, subdivision (a), however, does not require evidence that the parent intended the child to suffer serious physical harm, only that the harm inflicted be "nonaccidental," that is, volitional. (See In re D.C. (2011) 195 Cal.App.4th 1010, 1015-1016 ["The overarching goal of dependency proceedings is to safeguard the welfare of the children involved. [Citations.] In dependency proceedings, it would be illogical to require proof that a parent who directly subjected the child to a cruel act did so with the specific intent to harm. Rather, it is enough that the parent intended to perform the act."]; In re Emily D. (2015) 234 Cal.App.4th 438, 450 [the purpose of child dependency proceedings is not to punish the parent, but to protect the child]; cf. In re Ethan C. (2012) 54 Cal.4th 610, 630-631 [explaining heightened standard for criminal negligence was not necessary to sustain dependency allegation that parent's neglect caused death of a child under section 300, subdivision (f), and citing the different objectives between criminal law and dependency law].)

There is no dispute that Jesus's actions were deliberate, even if the consequential injuries may not have been. As discussed, this was not an isolated incident. Jesus continued to inflict, and Jaycob continued to suffer, bruising on his face and at times, to his extremities, over a period of just a few months in Jesus's custody. As the juvenile court implicitly recognized, Jesus's denial of the significance of the harm he inflicted only served to place Jaycob at continued risk of serious harm in his custody. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["[o]ne cannot correct a problem one fails to acknowledge"]; In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [same].)

Jesus emphasizes that his older children were not the subjects of a dependency petition, a fact he suggests conclusively established he was not a dangerous person. But the court did not find Jesus was categorically dangerous. Rather, the evidence, including Ethan's and Ariel's statements to the Department, suggested Jesus behaved differently toward his toddler than his older children. It was only the former conduct that the court found created a substantial risk of physical harm. To be sure, such disparate treatment may have simply been a function of Jesus's lack of insight into parenting a toddler rather than the product of any malicious intent. Had the juvenile court retained jurisdiction, it would have ordered parenting classes and counseling and could then determine, once Jesus had completed those classes, whether Jaycob could be safe in his custody. As it stands, that determination may now be made by the family court in the pending custody proceeding. We simply hold that the court's finding that Jaycob was a person described under section 300, subdivision (a), is supported by substantial evidence.

In light of our holding affirming the juvenile court's order sustaining the allegations in the dependency petition under section 300, subdivision (a), we do not consider the propriety of the jurisdiction finding under section 300, subdivision (b)(1). (See In re I.J., supra, 56 Cal.4th at p. 773 ["'[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence'"].)

3. Substantial Evidence Supports the Juvenile Court's Disposition Order

A child may not be removed from a parent or guardian with whom the child resides at the time the petition was initiated unless there is clear and convincing evidence of a substantial danger to the physical health, safety, protection or physical or emotional well-being of the child and there are no reasonable means to protect the child other than by removing the child from his or her parents' custody. (§ 361, subd. (c)(1).) The court must also determine whether reasonable efforts have been made to prevent or to eliminate the need for removal of the child from his or her home and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)

Citing his testimony and his assurances to the social worker that he had not, and would not, use physical discipline of any sort on any of his children, Jesus contends removal was unnecessary to protect Jaycob. However, the court found Jesus lacked insight into the harm he was inflicting and determined it could not adequately protect Jaycob's safety without removing him from Jesus's custody. The same substantial evidence supporting jurisdiction also justifies the court's removal order.

DISPOSITION

The jurisdiction finding and orders of May 3, 2019 and May 10, 2019 are affirmed.

PERLUSS, P. J.

We concur:

ZELON, J.

SEGAL, J.


Summaries of

L.A. Cnty. Dep't of Children & Family Servs. v. Jesus J. (In re Jaycob A.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Jan 21, 2020
No. B297869 (Cal. Ct. App. Jan. 21, 2020)
Case details for

L.A. Cnty. Dep't of Children & Family Servs. v. Jesus J. (In re Jaycob A.)

Case Details

Full title:In re JAYCOB A., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

Date published: Jan 21, 2020

Citations

No. B297869 (Cal. Ct. App. Jan. 21, 2020)