From Casetext: Smarter Legal Research

Los Angeles Cnty. Dep't of Children & Family Servs. v. Darlene R. (In re Darlene R.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 6, 2012
No. B231172 (Cal. Ct. App. Jan. 6, 2012)

Opinion

B231172

01-06-2012

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

Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK53354

APPEAL from a judgment of the Superior Court of Los Angeles County. Timothy Saito, Judge. Affirmed.

Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

The Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300, seeking an order declaring appellant Darlene R. a dependent child of the juvenile court under section 300, subdivisions (b) and (j). The juvenile court found that there was insufficient evidence to sustain the petition, in that the evidence did not establish that Darlene was at substantial risk of the harm specified in the statute. Darlene has appealed. We affirm.

DCFS has not filed a brief on appeal.

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

Under subdivision (b), a child may be judged a dependent child of the court if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." A child may be judged a dependent child of the court under subdivision (j) if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." The petition was also filed under subdivision (a), but Darlene makes no argument concerning that subdivision.

Darlene was not yet two years old when the order was made. Notice of appeal was filed by her attorney, who was also appointed as her CAPTA (Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5101 et seq.) guardian ad litem.

Issues; Standard of Review

The only factual allegations of the section 300 petition were that 15-month-old Darlene was at substantial risk of serious physical harm or illness (subdivision (b)) or substantial risk of the abuse or neglect defined in section 300 (subdivision (j)) in that "on 10/19/2010 [Darlene's] father . . . physically abused [Darlene's] sibling Daniel [R.] (DOB [in Nov.] 1992) by striking the sibling's face inflicting injury to the sibling's nose. [Darlene's] mother . . . failed to protect the sibling when the mother knew of the physical abuse of the sibling by [Darlene's] father," and that "On prior occasions, [Darlene's] mother . . . physically abused [Darlene's] sibling, Daniel [R.] (DOB [in Nov.] 1992). The mother struck the sibling with a coat hanger inflicting a laceration to the sibling's lips. On prior occasions, the mother struck the sibling."

The record includes additional information about Mother's and Father's past drug use and the dependency proceedings concerning Mother's older children, and reflects that a section 300 petition was filed as to Darlene shortly after she was born and was sustained on allegations concerning Mother and Father's drug use, and that both succeeded in their reunification plans, so that the court terminated jurisdiction in September 2010. That additional information is not part of this petition.

Nor are we concerned with the information concerning Daniel, who is Mother's child but not Father's, and who is Darlene's half brother. This section 300 petition was heard along with a petition regarding Daniel, and the record is replete with evidence concerning Daniel, but we are not here concerned with his dependency. Our task on appeal is to determine whether there is substantial evidence for the juvenile court's finding that DCFS did not carry its burden of showing that Darlene is at a substantial risk of abuse by Father or Mother.

The standard of review is clear. "[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.' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)

"[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

"It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. (See, e.g., 9 Witkin, Cal. Procedure, supra, § 278-279, pp. 289-292.) 'Issues of fact and credibility are questions for the trial court.' (In re Kristin W. (1990) 222 Cal.App.3d 234, 251; In re Heather P. (1988) 203 Cal.App.3d 1214, 1226, overruled on other grounds, In re Richard S. (1991) 54 Cal.3d 857, 864.) It is not an appellate court's function, in short, to redetermine the facts. (9 Witkin, supra, [Appeal,] § 280, p. 292.) Absent indisputable evidence of abuse -- evidence no reasonable trier of fact could have rejected -- we must therefore affirm the juvenile court's determination." (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)

Discussion

1. The altercation between Daniel and Father

The petition alleges that Father abused Daniel on October 19, 2010. The evidence is that on that date, when Daniel was almost 18 years old, Daniel and Father had an altercation.

Darlene was asleep in her crib in another room during the altercation. She was not even aware of it. As soon as DCFS learned of the incident (from Mother, the next day) a social worker examined Darlene and found that she was a healthy child, comfortable in her home, with age-appropriate development. She had no bruises. Thus, the altercation did not harm Darlene or put her at substantial risk of serious physical harm or illness, or of any other abuse or neglect -- we do not understand Darlene to argue to the contrary.

Nor is there evidence which would compel a finding that Darlene was at risk of being injured in a further altercation between Daniel and Father. That is because Daniel moved out of the house immediately after the altercation. He did not want to live with Mother and Father, and by the time the section 300 petition was heard, he was an adult, receiving emancipation services from DCFS.

In the juvenile court, Darlene argued that the incident between Daniel and Father meant that Darlene would be at risk of abuse by Father or Mother in the future, "when she's more verbal, when she can confront . . . Mother and Father." At oral argument in this court, she argued that jurisdiction should have been asserted under the factors listed in section 300, subdivision (j), which provides that in determining whether abuse of a sibling means that a child is at risk, "[t]he court shall consider 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."

We thus look to the circumstances of the altercation between Father and Daniel to determine whether there was substantial evidence for the juvenile court's finding. At the time of the altercation, Daniel was almost 18 years old. Darlene was not yet two. She had never been abused or neglected by Father or Mother. Daniel instigated the altercation after repeatedly saying that he did not want to live with Mother and Father, that he would put his mother to sleep so that "she never woke up," and that he would make sure that Mother did not regain custody of her other children. Father pushed Daniel only after Daniel held him against a wall and hit him with his fists 5 or 6 times. Thus, the circumstances of altercation do not indicate that Father was violent or inclined to address his problems by fighting.

Nor does the record otherwise indicate that Father was violent. He did not have a criminal record for violent offenses, or a history of domestic violence or threats, or of engaging in altercations with others. According to DCFS, this altercation was an isolated incident. Further, Father was a loving and involved father to Darlene. After a social worker told Mother and Father that Darlene would be detained and put in foster care due to the altercation, Father moved out of his home so that Darlene could stay in her home with Mother, indicating a willingness to sacrifice his comfort for his child's wellbeing. DCFS reported that the house was clean and neat, with toys and food, that Mother and Darlene had a close relationship, that on visits, Father assisted Mother in caring for Darlene, and that Darlene ran to Father when he arrived for a visit, smiled, and hugged and kissed him.

This is substantial evidence for the juvenile court's finding that Darlene was not at substantial risk of abuse by Father in the future.

2. The allegation that Mother abused Daniel

We turn now to the remaining allegation in the petition, that on prior occasions, Mother abused Daniel by striking him with a coat hanger, causing lacerations to his lips.

First, although the petition alleges "occasions," the only evidence that Mother struck Daniel with a coat hanger is Daniel's statement to a social worker, soon after the altercation, that on one occasion, when he was 7 years old, Mother hit him with a coat hanger, cutting his lip. After further investigation, DCFS, which had the burden of proof, reported that "based on witness statements, there does not seem to be enough evidence to sustain" Daniel's allegation. Daniel refused to be further interviewed concerning the allegation, and DCFS's records yielded no substantiated allegations on this point.

At the section 300 hearing, Daniel testified that when he was 14 years old, Mother struck him with a clothes hanger.

Thus, Daniel's story changed between his initial interview and his testimony. It was not borne out by the record, and the juvenile court could reasonably conclude that Daniel's account of abuse was false. Notably, in a related petition, a section 342 petition concerning Daniel, the court struck the allegations concerning the alleged abuse of Daniel by Mother with a clothes hanger, impliedly finding that the incident was fabricated.

3. Allegations not found in the petition

Finally, in her brief and at oral argument, Darlene contends that the petition should have been sustained based on the "totality of the evidence," that is, based on the information concerning Mother's and Father's history of drug use, Mother's older children, and earlier referrals of this family to DCFS.

However, the court had already adjudicated the question of risk to Darlene due to those factors. When it terminated jurisdiction based on the earlier section 300 petition concerning Darlene, the court found that those factors no longer presented a danger to Darlene. The fact that the instant petition, filed only two months later, did not include allegations about the parents' drug use, tells us that DCFS had no evidence that the parents had lapsed since September, and that, like the court, the social workers believed that the history did not indicate that Darlene was endangered.

Further, serious due process problems would arise if we were to reverse based on matters not alleged in the petition. A dependency petition must include "[a] concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted." (§ 332, subd. (f).) The purpose of the section 300 hearing is to "determine whether the allegations in the petition are true." (Cal. Rules of Court, rule 5.684(a).)

"'Notice of the allegations upon which the deprivation of custody is predicated is fundamental to due process. [Citations.] Accordingly, a parent must be given notice of the specific factual allegations against him or her with sufficient particularity to permit him or her to properly meet the charge.'" (In re Fred J. (1979) 89 Cal.App.3d 168, 175, In re S.O. (2002) 103 Cal.App.4th 453.) Even an amendment to conform to proof will not be allowed where the variance is so wide that it would violate due process. (In re Jessica C. (2001) 93 Cal.App.4th 1027.)

In this case, where the petition did not include any allegation concerning the parents' history of drug use, or the earlier dependencies or referrals, and DCFS did not even seek to amend the petition to conform to proof, the parents' due process rights would have been violated if the juvenile court had sustained the petition based on the evidence Darlene cites now. Those rights would be doubly violated if we were to do so on appeal. The parents have had no ability to present evidence or argument on those issues, but instead have relied on DCFS's evaluation, implicit in the petition it filed, that Darlene was not endangered by those factors.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

I concur:

MOSK, J.

I concur in the decision to affirm the order dismissing the Welfare and Institutions Code section 300 petition. There is substantial evidence that: the fight between the father, D.B., and Daniel R. was instigated by the youngster; the mother, E.R., intervened to stop Daniel's assault on the father, J.B.; this version of the evidence indicates the parents were victims of Daniel's misconduct; Daniel is not a reliable witness nor reporter of past purported acts of domestic violence as alleged in the risk of serious physical and emotional harm and sibling abuse allegations; the social worker viewed the October 19, 2010 altercation as an isolated incident; there is testimony the child, Darlene R., was asleep during the October 19, 2010 domestic violence incident; both the mother and father successfully completed their reunification programs as a result of the 2009 dependency proceedings which addressed their prior long term substance abuse; the mother has acknowledged her prior parenting mistakes; the mother thanked the department social worker for providing assistance in connection with the prior dependency proceedings, something I have never observed before; the family home is clean; there is ample food and clothing for the child; there is a close loving relationship between the child and the mother; and the department rated the risk of future harm the child as moderate.

All future statutory references are to the Welfare and Institutions Code.

Now there is also substantial evidence the child is at risk in her current living circumstances. Four of the mother's other children have been found to be dependents. Between 1998 and 2009, there were five allegations of parental neglect which were deemed substantiated or resulted in department action. A version of the evidence indicates that Daniel was the victim in the fight and is regularly harassed by the mother and the father. It is uncontradicted an act of domestic violence occurred on October 19, 2010. There is evidence Daniel has repeatedly been assaulted by the mother on other occasions. Further, there is uncontradicted evidence the mother was convicted of four drug offenses in 2008 and 2009. And the fact that Daniel no longer resides in the family home does not mean he will not return.

Where I disagree with the child's counsel is that there is substantial evidence she is not at risk in the home of loving parents who have turned their lives around and who were victimized by Daniel on October 19, 2010. No doubt, the totality of the evidence is troublesome, but the parents' prior substance abuse was not alleged as a basis for jurisdiction under section 300, subdivision (b). The child's counsel made no motion to amend the petition nor did the department's attorney. The juvenile court did not amend the petition to allege the drug abuse evidence. Moreover, in terms of the section 300, subdivision (a) domestic violence allegations, the juvenile court could reasonably disbelieve Daniel for the reasons previously expressed. Also, there is evidence that the prior chaotic family life which resulted in the other children being removed from the family home has resolved itself. And our Supreme Court has made it clear, we cannot reweigh the evidence in dependency matters. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) We are required to affirm the dismissal.

TURNER, P.J.


Summaries of

Los Angeles Cnty. Dep't of Children & Family Servs. v. Darlene R. (In re Darlene R.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Jan 6, 2012
No. B231172 (Cal. Ct. App. Jan. 6, 2012)
Case details for

Los Angeles Cnty. Dep't of Children & Family Servs. v. Darlene R. (In re Darlene R.)

Case Details

Full title:In re DARLENE R., a Person Coming Under the Juvenile Court Law. LOS…

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

Date published: Jan 6, 2012

Citations

No. B231172 (Cal. Ct. App. Jan. 6, 2012)