Opinion
G059698
04-28-2021
In re M.R. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.R., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance by minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 20DP0878, 20DP0879) OPINION Appeal from postjudgment orders of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Affirmed. Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance by minors.
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This is an appeal by father from the court's finding that it had jurisdiction in the dependency proceeding involving minors M.R. and B.R. Father does not object to jurisdiction, per se—he acknowledges that jurisdiction over the minors was proper due to their mother's behavior—but he contends the evidence does not support the jurisdictional findings the court made as to him. We have discretion to decline such an appeal. However, given the potentially adverse consequences of the court's findings on father's legal rights, we will reach the merits of his claim. Father seeks to strike the jurisdictional findings against him.
We decline to do so. Substantial evidence supports the court's findings that father has anger management issues and a history of domestic violence. The gist of father's argument is that the domestic violence incidents that underlie the findings were all either remote in time or based on inconclusive investigations by the Orange County Social Services Agency (SSA). However, the older incidents were relevant to show an entrenched pattern of conduct, and though SSA's investigations were often inconclusive, that was largely because of father and mother's unwillingness to cooperate with SSA. There was evidence supporting those reports, and the court was entitled to consider the underlying evidence. That evidence, when taken in the aggregate, evinced father's tendency toward angry and violent outbursts that continues unabated. That pattern was relevant in determining that the children continue to be at risk of harm. Accordingly, we affirm.
FACTS
On July 17, 2020, the Orange County Sheriff's Department went to mother's home and discovered that minor B.R. had three "finger marks" on the side of his neck. B.R. initially denied knowing how the marks got there but eventually acknowledged that mother had "spanked" him on the neck. Mother denied it, but admitted she uses physical discipline with B.R. and offered inconsistent stories about how the marks got there. M.R. stated he did not witness what happened, but told a deputy he had seen mother "spank" B.R. on the face before. Mother was arrested for child endangerment, cited, and released. Father had not had contact with the children for approximately three months.
SSA filed a juvenile dependency petition on July 21, 2020, citing Welfare and Institutions Code section 300, subdivisions (a) [serious physical harm], (b)(1) [failure to protect], and (j) [abuse of sibling]. The allegations as to father fell under subdivisions (b)(1) and (j). The petition generally alleged that father has unresolved anger management issues, that he and mother have a history of domestic violence, and that father has a history of arrests related to domestic violence.
Because mother is not a party to this appeal, we will focus on the allegations against father.
The earliest incident listed in the petition was a prior juvenile dependency case from 2009 involving mother's now-adult child T.M. (a half sibling to minors M.R. and B.R., who are the subjects of this proceeding). The sustained petition in that case alleged that mother and father (who, at the time, were not married) were "involved in a relationship characterized by domestic violence." It listed a number of illustrative incidents, including the following: When a verbal altercation between mother and father occurred at the child's school, mother and T.M. sought refuge in their car, and father broke the car handle trying to gain entry; he punched holes in the wall of their home, broke a mirror, broke a chair, and threw the family dog; he pushed T.M. and scratched her on the arm; he angrily threw a drill, causing the drill bit to come loose and hit T.M.; he would angrily gesture toward T.M., causing her fear; he drove under the influence of alcohol with T.M. in the car; and T.M. witnessed father call mother derogatory names and pull her hair.
In 2011, father had a domestic violence related criminal conviction.
In 2013, the maternal grandparents reported that mother and father would scream and curse at each other in front of the children "all the time." It was also reported that father was prone to outbursts that included punching walls and cars, screaming and cursing, breaking objects, and chasing T.M. into the backyard while calling her derogatory names and racial epithets.
"The mother reported 'a couple' of domestic violence incidents in 2014."
In 2015, T.M. reported that father grabbed mother by the wrists and pushed her against a wall. Mother called 911 and said she was being assaulted, but denied it when sheriff deputies arrived. It was more generally reported that father was verbally abusive and prone to throwing and breaking things in the house.
In 2016, M.R. reported that he observed mother and father push each other and that father had pushed mother over the stove. M.R. said his parents fight every week and that he felt sad and scared because they were loud. When police arrived, mother initially admitted father had pushed her but then changed her story a few minutes later.
In 2017, it was reported that mother and father were verbally fighting and when mother attempted to drive away, father stood behind the car and attempted to stop the car with his hands. Mother then got out of the vehicle, pulled his hair and shook him.
According to a report in 2018, M.R. took a soda from the refrigerator, which he was not supposed to do, and attempted to run out of the house. Father grabbed M.R. by his shirt and threw him to the ground, causing M.R. to strike his head on the ground.
In 2020, B.R. (age 7) was interviewed and reported that father "was being rude" to mother and "pulling her hair." This occurred when he was in first grade (2019/2020).
SSA investigated many of the incidents listed above. However, "[m]ost of the child abuse reports could not be investigated as the parents could not be located and requests for contact were not returned." As a result, they were deemed inconclusive.
At the time of the incident giving rise to the petition, father was not living with the family and had not had contact with them for approximately three months. When a social worker interviewed father, he blamed the adult half-sibling (T.M.) for the marks on B.R.'s neck and urged the social worker to go arrest her, but added, "'I know you can't because' she is a 'black girl.'"
When confronted with the allegations of the petition against him, father denied any history of domestic violence and denied having anger management problems. This included denying the events of the 2009 dependency case, which specify him by name. He also denied any criminal history, notwithstanding the record of his convictions.
Mother was later asked about father blaming T.M. for B.R.'s injuries. Mother commented, "[Father] does not like [T.M.] [Father] got in a physical altercation with [T.M.] well over a year ago." When mother was asked about father's domestic violence incidents, she replied that they "probably happened."
When father was asked if he was interested in taking custody of the minors, he initially indicated he was not, commenting that he "tries 'to live a private life.'" Later, he changed his mind and asserted that he does want custody.
Father expressed that he did not believe he needed to participate in services, as the case was about mother's issues. He expressed his belief that he is being harassed by SSA and was concerned that he was being tricked into a criminal charge.
Prior to the jurisdictional hearing, minors were released to mother under a program of intense supervision (CRISP). Ultimately, the court sustained the petition as amended by interlineation and implemented a plan of family maintenance with minors in mother's custody. Father appealed.
DISCUSSION
At the outset, father acknowledges that "[a]ddressing Father's issues on appeal will not affect the juvenile court's jurisdiction based on the counts sustained against Mother." "[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [him or] her within one of the statutory definitions of a dependent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
Father's issues are, nonetheless, justiciable. "'When 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 [trial] court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' [Citation.] However, we generally will exercise our discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citation]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction [citation].'" (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) The findings against father could certainly affect the current dependency proceeding and potentially any custody dispute between father and mother as well. Accordingly, we will reach the merits of father's claims.
Mother filed for dissolution of the marriage.
However, the limited nature of his appeal has implications that father does not fully recognize. His argument is partially structured around the contention that "SSA established none of the elements for a viable B count" against father. But SSA's burden was not to establish a Welfare and Institutions Code section 300, subdivision (b), count against father—it was simply to establish it as to the minors generally. Father has conceded that SSA met that burden. The only remedy we could provide in this appeal would be to strike allegations from the petition that are either irrelevant or unsupported by substantial evidence. However, as we explain in more detail below, none of the allegations meet that criteria.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
The inquiry under section 300, subdivision (b)(1), is whether 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 . . . ." The general allegation against father was that (1) he had an anger management problem, and (2) had a history of domestic violence. Father takes two approaches to arguing the allegations against him are insufficient.
Father's first approach is to attack each individual factual allegation in isolation to argue that it is insufficient to satisfy section (b)(1). However, as we explained in In re Hadley B. (2007) 148 Cal.App.4th 1041, "[f]acts supporting allegations that a child is one described by section 300 are cumulative. [Citation.] While a given quantum of evidence at a particular point in time may not support jurisdiction, those same facts considered together with new evidence may compel the court's intervention." (Id. at p. 150.) The court must consider the totality of the circumstances. (Id. at p. 1048.)
Father's other approach is to argue that the allegations against him are too old. That did not render them irrelevant, however. "Although 'the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm' [citation], the court may nevertheless consider past events when determining whether a child presently needs the juvenile court's protection. [Citations.] A parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133; see In re Jasmon O. (1994) 8 Cal.4th 398, 424 ["'a measure of a parent's future potential is undoubtedly revealed in the parent's past behavior with the child'"].)
Turning to the specific factual allegations, father attacks the allegation concerning the 2009 dependency proceeding, describing it as an "old proceeding" that does not have "any relation to the present time . . . . [Citation.] It cannot be assumed that because one child was abused, all other children in the home, regardless of the time elapsed, are at risk of the same or similar abuse." This argument well illustrates both of father's approaches described above. If the 2009 proceeding were the only evidence concerning father, we may be inclined to agree with him. But we look at the totality of the circumstances. Those circumstances demonstrate a pattern of domestic violence incidents stemming from anger management issues that appear to be unresolved. Such a pattern is plainly relevant to whether the minors are presently at risk of harm.
Next, father attacks the evidence of his violent episodes in 2013, 2015, 2016, and 2017 as inadmissible because they came from SSA investigations that were deemed "inconclusive." Father argues that, "[b]y definition," inclusive reports "could not support any findings of physical abuse . . . ." But father omits SSA's conclusion that "[m]ost of the child abuse reports could not be investigated as the parents could not be located and requests for contact were not returned." Father cites no authority for the proposition that inconclusive investigations are devoid of evidentiary value. And this case illustrates why such a rule would be improvident: A parent can foil an investigation by simply refusing to cooperate. That should not erase from the record the evidence gathered during the investigation. As we previously explained, "Substantiated and inconclusive reports must be based on the existence of some evidentiary support." (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 283.) If there were no evidentiary support at all, the allegation would be deemed unfounded. (See generally Pen. Code, § 11165.12 [defining the three potential conclusions of a report: unfounded, substantiated, or inconclusive].) A court is entitled to give an inconclusive report the weight it is due.
At the time Burt was decided, Penal Code section 11169, subdivision (a), required both substantiated and inconclusive reports to be sent to the Department of Justice to be included in the Child Abuse Central Index. That section was later amended so that only substantiated reports are included. However, the definition of an inconclusive report has not changed.
Ultimately, father was still interested in custody of the children, and thus any anger management issues he had, and his history of domestic violence, when combined with mother's abusive tendencies, were relevant to the inquiry of whether minors were at risk of harm. Evidence of father's history and anger management issues came from a wide variety of sources, including police reports, criminal convictions, court findings, and verbal reports by mother, M.R., B.R., T.M., and the maternal grandparents. All of these reports coalesced into a consistent story: Father is prone to violent outbursts that are emotionally abusive and occasionally violent. This pattern started as early as 2009 and continued through at least 2019 when B.R. reported that father had pulled mother's hair. Father's pattern of violence and anger was plainly relevant to the risk of harm to the minors and the findings were supported by substantial evidence. Accordingly, there is no basis to strike the allegations against father.
DISPOSITION
The postjudgment orders are affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.