Opinion
E077763
03-09-2022
In re A.P., a Person Coming Under the Juvenile Court Law. v. O.P., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant. Steven O'Neill, Interim County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J290005, Christopher B. Marshall, Judge. Affirmed in part; reversed in part.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Steven O'Neill, Interim County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SLOUGH Acting P. J.
O.P. (father) appeals the juvenile court's jurisdictional finding and dispositional order regarding his infant daughter. (Welf. & Inst. Code, § 300, subd. (b), unlabeled statutory citations refer to this code.) Father argues the court's jurisdictional finding that he failed to protect his daughter from the danger posed by the maternal uncle and his partner lacks evidentiary support because, by the time the department filed the dependency petition, he and his daughter did not live with the uncle. He also argues that because the defined risk of harm was already eliminated by the time of the jurisdictional finding, the court's dispositional order was an abuse of discretion. We agree and therefore reverse the jurisdictional finding and dispositional order. Dependency jurisdiction must be based on current, not past, risk of harm. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022 (J.N.).)
I
FACTS
A. Events Prior to A.P.'s Birth
The subject of this dependency is father's infant daughter, A.P. Father and mother lived with mother's parents and her seven-year-old daughter Natalie in the maternal grandparents' house. As of May 2021, mother was pregnant with A.P., her second child and father's first. The maternal uncle-mother's brother Juan-lived on the property in a converted garage with his partner Monique and her two-year-old son.
Though the court sustained allegations against both mother and father, mother is not a party to this appeal.
Father and Juan didn't get along well and rarely communicated. Father didn't know much about Juan because Juan lived in the converted garage and not in the house. However, he believed Juan was not a good person. Around January 2021, father and Juan got into an argument after Juan insulted mother. Juan hit father with a wooden spoon, leaving a scar. Father sometimes heard Juan yell at Monique's son to shut up, and also sometimes had to intervene when Juan allowed Monique's son to get outside unsupervised. However, he never saw either Juan or Monique abuse the child. He also never saw any domestic violence between Juan and Monique but did witness Juan and Monique arguing a lot.
On May 9, 2021, Juan and Monique took her son to the emergency room. He had sustained serious head injuries and was unconscious on arrival. Juan told the medical personnel the child fell, but his injuries were not consistent with a fall. The medical personnel reported their concerns that the child was the victim of physical abuse. Father was home the night the child was injured. According to father, Juan came into mother's room and said the child couldn't breathe. Father said he suspected Juan of abuse from the start because Juan was the only one with the child when he was injured.
Because mother lived with her daughter Natalie on the same property as Juan and Monique, the department became concerned Natalie could also be at risk of abuse. The department interviewed mother, Natalie, and the maternal grandmother, who all believed Monique's son's injuries had to be accidental as they didn't think Juan would hurt a child. Both mother and Natalie reported they felt safe in the home and safe around Juan.
The department did not speak to father, because A.P. was not yet born and there appears to be some confusion over whether the department knew mother was pregnant.
B. The Dependency Petition
A.P. was born in July 2021.
After A.P.'s birth, on July 26, 2021, the department filed a petition under section 300 for Natalie, alleging mother failed to protect her from the danger Juan and Monique posed by continuing to live with them. Juan and Monique moved out later that same day.
On July 27, 2021, Mother sought a restraining order against Juan. The court denied her request because there was no evidence Juan had hurt her or her children.
The next day, on July 28, 2021, the department made an unannounced visit to the home. According to the department, this was the first time they learned of A.P.'s birth, and that A.P. was living in the house with mother and father. After learning A.P. was living in the home, the department determined they would also file a section 300 petition for A.P. They made this decision before interviewing father and despite learning that Juan and Monique had already moved out.
On July 29, 2021, after the department decided to file the petition but before they actually filed it, social workers met with father for the first time. Father told them about his recollection of the night Monique's son was injured. He also said that initially mother's parents weren't taking the situation seriously but had finally kicked Juan and Monique out two days before and were now trying to formally evict them. He told the department he was willing to move out that day and move in with his parents in order to maintain custody of A.P.
The next day, July 30, 2021, the department filed a section 300 petition as to A.P. The petition had two identical allegations, one against father and one against mother, alleging they placed A.P. at serious risk of harm by exposing her to physically abusive adults in their home. On August 2, the court held a detention hearing. It found a prima facie case for detaining A.P., but left her in her parents' care on the condition Juan and Monique not reside in the house and have no contact with A.P.
C. Jurisdiction/Disposition
The department interviewed mother and father on August 18, 2021. They both said they had not been in contact with Juan and Monique and wanted nothing more to do with the couple. They said they believed the department's allegations of abuse and would do whatever it took to protect A.P.
The department filed a jurisdiction and disposition report on August 19, 2021. They recommended sustaining the allegations against both parents. They also recommended providing family maintenance services.
The court held the jurisdiction and disposition hearing on August 24, 2021. Father requested the court dismiss the allegation against him, arguing there was no current risk of harm to A.P. because Juan and Monique no longer lived with them and A.P. was never physically abused or exposed to abuse.
The department argued in favor of finding the allegations against father and mother true because they "resided in the same home as the child who was severely physically abused," were "aware that this child was injured . . . by either his mother or [Juan]," and that "[d]espite having that knowledge, they continued to reside in the home with [Juan] and then brought in a younger child who was even more vulnerable." The department further argued that when they raised these concerns, father and mother took no action until the department filed a section 300 petition, "demonstrating that they are incapable of being protective on their own."
The court agreed with the department, found the allegations against father and mother true, and ordered no contact with Juan and Monique. Father filed a timely appeal challenging the sufficiency of the evidence supporting the jurisdictional findings against him and the court's dispositional order.
II
ANALYSIS
A. Justiciability
As an initial matter, we address the department's contention that we should dismiss this appeal on the ground father's arguments are not justiciable. They point out father doesn't contest the jurisdictional findings against mother, and therefore the court will retain jurisdiction even if we find in his favor.
It is true the department "is not required to prove two petitions, one against [one parent] and one against the [other parent], in order for the court to properly sustain a petition or adjudicate a dependency." (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.) As such, "a jurisdictional finding good against one parent is good against both." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) And for that reason, "an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence," because no matter the outcome, the juvenile court will retain jurisdiction against both parents. (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.)
However, "[W]e 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 [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction' [citation]." (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.).) Here, because father challenges both the jurisdictional and dispositional orders, and the jurisdictional finding against him" 'could potentially impact the current or future dependency proceedings, '" we exercise our discretion to review the merits of his appeal. (In re L.O. (2021) 67 Cal.App.5th 227, 237-238.)
B. The Section 300, Subdivision (b) Finding is Not Supported by the Record
Turning to the merits, we conclude the jurisdictional finding against father is not supported by the record.
A juvenile court may take jurisdiction of a child under section 300, subdivision (b)(1), only if it finds by a preponderance of evidence that 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 . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1).) The social service agency bears the burden to demonstrate the following three elements: "(1) neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re L.W. (2019) 32 Cal.App.5th 840, 848.)" 'The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.'" (J.N., supra, 181 Cal.App.4th at p. 1022, italics added.)
Here, the record contains no evidence that father was currently (that is, by the time of the hearing) failing to protect A.P. from Juan and Monique. Indeed, the record contains no evidence that father failed to protect A.P. from Juan and Monique at any point. Father suspected Juan of being dangerous before A.P. was born and Juan and Monique moved off the property they shared with mother and father before the department even filed the petition. This means the defined risk of harm did not exist when the petition was filed. The department must have known their allegation was baseless when they filed the petition because they had just the day before learned that Juan and Monique had moved out and father regarded Juan as a danger. Therefore, there was not only insufficient evidence to support jurisdiction, but insufficient evidence to support so much as a prima facie case for detaining A.P.
The department cites no case law or facts to support the finding. Instead, they reiterate the argument they made to the juvenile court, that father's failure to immediately remove A.P. from the home he shared with Juan and Monique shows he's not sufficiently protective. They point to the fact father told the social workers that he knew Juan was violent, heard him yell at Monique's son, and knew he argued with Monique, and contend this means he should have known to remove A.P.
While a parent's lack of insight into the extent of the danger another person poses to their child is often compelling evidence to support a jurisdictional finding under section 300, subdivision (b)(1), that is only the case where this lack of insight poses a risk of future harm. Where, as here, the parent realizes the danger posed and takes all necessary precautions to protect the vulnerable child before the jurisdictional hearing, their previous lack of insight has been resolved and no longer poses a continuing risk of harm. In other words, the danger posed by father's alleged failure to protect A.P. dissipated when the person he needed to protect her from moved away. "Dependency proceedings are civil in nature, designed not to prosecute a parent, but to protect the child. . . . [T]he paramount concern is the child's welfare." (In re Mary S. (1986) 186 Cal.App.3d 414, 418-419.) The goal of dependency is to eliminate the risk of harm to children. (See § 300.2 ["the purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm"].) Where, as here, that risk of harm was resolved before the department even got involved, there can be no evidence father continues to place A.P. at risk of harm.
The department's arguments against father betray a desire to punish father's perceived misbehavior, not prevent harm to the child. The department argued below and here that father's failure to remove A.P. until their intervention is evidence in favor of finding jurisdiction. Not only is this factually incorrect-Juan and Monique moved out before the department even filed their petition-it is also wrong because it requires us to accept that once the department intervenes it's too late for a parent to remedy the reason for intervention and jurisdiction is therefore inevitable. But even if father had not taken action until after the petition, that's not a reason to find jurisdiction over his child. The goal of dependency law, and the department's putative goal, is to protect children, not to police a parent's past choices. If a dependency petition encourages a parent to eliminate any risks to their child, the petition has accomplished its goal, and proceedings needn't and shouldn't go any further.
C. The Court Erred in Ordering Father to Participate in a Parenting Program and Individual Counseling
For the same reason, we agree with father that the court's dispositional order requiring he participate in parenting programs and individual counseling was an abuse of discretion.
Since father doesn't contest the court's jurisdictional finding as to the allegations against mother, we do not address whether jurisdiction was appropriate overall. Assuming it was, the trial court can order father to participate in family maintenance services. (§ 362, subd. (c).)
However, "[t]he program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding" that the child fell within section 300. (§ 362, subd. (d).) A court abuses its discretion if it orders a parent to participate in a program when that program wouldn't actually help the parent resolve the issue that led to the dependency proceedings. (Drake M., supra, 211 Cal.App.4th at pp. 770-771; see In re S.S. (2020) 55 Cal.App.5th 355, 378 [holding it was an abuse of discretion to order a parent to participate in prophylactic counseling despite the only barrier to regaining custody being the parent's lack of stable housing].)" 'The imposition of parenting courses cannot be "based on a rote assumption that [father] could not be an effective . . . parent without parenting classes." '" (In re S.S., at p. 378.)
Here, father's only alleged shortcoming was failing to get A.P. away from Juan and Monique fast enough. There are no allegations father was neglectful, abusive, or incapable of properly parenting A.P. Indeed, as pointed out above, it's not even the case that father failed to recognize the danger Juan and Monique posed and needed counseling in order to understand that, because the danger was resolved before the department even got involved with A.P. Simply put, there is no evidence in the record that father needed any programs to eliminate those conditions that led to the court asserting jurisdiction, because those conditions were already eliminated by the time the department filed the dependency petition. Accordingly, we conclude the court abused its discretion by ordering father to participate in family maintenance services.
III
DISPOSITION
We reverse the jurisdictional finding and dispositional order against father but otherwise affirm the judgment.
We concur: RAPHAEL, J., MENETREZ, J.