In re T.J. CA2/4 ( 2021 )

Filed 9/10/21 In re T.J. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re T.J., Person Coming Under B308488
the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 18CCJP01289
Plaintiff and Respondent,
v.
E.J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Jane Kwon, Deputy County Counsel,
for Plaintiff and Respondent.
INTRODUCTION
The juvenile court exercised jurisdiction over T.J., the child
of E.J. (mother) and K.J. (father),1 pursuant to Welfare and
Institutions Code2 section 300, subdivision (b)(1), finding she was
at substantial risk of serious physical harm due to mother’s
inappropriate plan for T.J.’s care while mother was incarcerated.
Mother left T.J. with maternal great-uncle, who is unable and
unwilling to provide T.J. with ongoing parental care and
supervision.3 The court removed T.J. from the parents under
section 361 and placed her under the supervision of the
Department of Children and Family Services (Department).
On appeal, mother contends the juvenile court’s
jurisdictional finding pertaining to her and its removal order are
unsupported by substantial evidence. We disagree and affirm.
BACKGROUND
T.J., then five years old, came to the attention of the
Department in August 2020. Well before the referral, T.J. lived
with mother at maternal great-uncle’s home. Because mother
knew she would have to serve time in prison, she arranged to
have maternal great-uncle care for T.J. while she was
incarcerated. Mother did not leave any documentation
1 Father is not a party to this appeal.
2 All further undesignated statutory references are to the
Welfare and Institutions Code.
3 The petition alleged additional counts as to father. Because
he is not a party to this appeal, we limit the discussion of the
counts against him.
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formalizing or otherwise memorializing her arrangement.
Sometime after mother went to prison, maternal great-uncle
passed T.J. to maternal cousin. Maternal cousin then passed T.J.
to paternal grandmother and father.
At the time of the referral, T.J. lived with father, paternal
grandmother, three paternal uncles, and one paternal aunt in
paternal grandmother’s home. The referral alleged T.J. had been
subject to general neglect by father. The reporting party stated
that because father was not taking his medication for
Schizoaffective Disorder, he was talking to himself and not
grooming himself. Paternal uncle had called the Psychiatric
Emergency Team (PET) because father was having a psychotic
break and met the criteria for a section 5150 hold. Because of
COVID, PET was unable to enter father’s home to assess him.
Additionally, paternal grandmother refused to allow father to be
taken to the hospital. Approximately one week later, T.J. was
detained from father and placed in foster care.
Following an investigation, the Department filed a petition
on behalf of T.J. under section 300, subdivision (b)(1) on
September 2, 2020. The petition’s sole count pertaining to mother
alleged T.J. was at substantial risk of serious physical harm
because mother made an inappropriate plan for T.J. (count b-2).
Specifically, the petition alleged mother left T.J. with maternal
great-uncle while she was incarcerated. Mother left no formal
document or notarized letter to reflect their agreement regarding
T.J.’s care. Maternal great-uncle eventually passed T.J. to other
maternal and paternal relatives, who were unable and unwilling
to care for T.J. As discussed below, T.J. suffered physical abuse
while living with these relatives.
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The adjudication hearing was held on October 28, 2020.
After hearing evidence and argument, the juvenile court
sustained the subdivision (b) count against mother as pled,
finding the lack of documentation of the agreement between
mother and maternal great-uncle and the subsequent handing of
T.J. “from person to person” placed T.J. at substantial risk of
serious physical and emotional harm.
DISCUSSION
I. Justiciability
Preliminarily, we address the Department’s contention that
mother’s challenge to the juvenile court’s jurisdictional finding
pertaining to her is not justiciable. Specifically, the Department
argues that because mother does not dispute the jurisdictional
findings relating to father, “dependency jurisdiction over [the
child] will remain regardless of the outcome of [her] appeal,” and
therefore we “need not address her claim of jurisdictional error.”
As discussed below, we disagree.
Ordinarily, “[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 one of
the statutory bases for jurisdiction 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.
[Citations.]” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Nevertheless, “we generally will exercise our discretion and reach
the merits of a challenge to any jurisdictional finding when the
finding . . . could be prejudicial to the appellant or could
potentially impact the current or future dependency proceedings
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[citations][.]” (In re Drake M. (2012) 211 Cal.App.4th 754, 762-
763 (Drake M.).)
Consequently, where, as here, the outcome of the appeal
will determine whether the parent is “‘offending’” versus “‘non-
offending,’” a finding with potentially far-reaching consequences
in these and future dependency proceedings, we find it
appropriate to exercise our discretion and consider the
jurisdictional challenge on the merits. (Drake M., supra, 211
Cal.App.4th at p. 763; see also In re Quentin H. (2014) 230
Cal.App.4th 608, 613.) Accordingly, we address the merits of
mother’s jurisdictional challenge below.
II. Jurisdiction Under Section 300, Subdivision (b)
Pursuant to section 300, subdivision (b)(1), the juvenile
court may exercise jurisdiction over a child if it finds “[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[.]”
Section 300, subdivision (b)(1) “effectively requires a
showing that at the time of the jurisdictional hearing the child is
at substantial risk of serious physical harm in the future (e.g.,
evidence showing a substantial risk that past physical harm will
reoccur). [Citations.]” (In re Savannah M. (2005) 131 Cal.App.4th
1387, 1396.) “The Department has the burden of showing
specifically how the minor[ ] ha[s] been or will be harmed[.]” (In
re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) “Evidence of
past conduct may be probative of current conditions, and may
assist [the Department] in meeting this burden. [Citation.]
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However, [the Department] must establish a nexus between the
parent’s past conduct and the current risk of harm. [Citation.]”
(In re J.N. (2021) 62 Cal.App.5th 767, 775.) Additionally, “‘[t]he
court need not wait until a child is seriously abused or injured to
assume jurisdiction and take the steps necessary to protect the
child.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.)
We review a juvenile court’s jurisdictional orders for
substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987,
992 (Yolanda L.).) Under this standard, “we view the record in
the light most favorable to the juvenile court’s determinations,
drawing all reasonable inferences from the evidence to support
the juvenile court’s findings and orders.” (Ibid.) “We do not
reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts. [Citation.]” (In re Dakota H. (2005)
132 Cal.App.4th 212, 228 (Dakota H.).)
“Substantial evidence must be of ponderable legal
significance. It is not synonymous with ‘any’ evidence. [Citation.]
The evidence must be reasonable in nature, credible, and of solid
value. [Citation.]” (Dakota H., supra, 132 Cal.App.4th at p. 228.)
“The appellant has the burden of showing there is no evidence of
a sufficiently substantial nature to support the finding or order.
[Citations.]” (Ibid.) “‘ . . . “The ultimate test is whether it is
reasonable for a trier of fact to make the ruling in question in
light of the whole record.” [Citation.]’ [Citation.]” (Yolanda L.,
supra, 7 Cal.App.5th at p. 992.)
Mother contends the juvenile court erred in sustaining the
allegations in count b-2 because the evidence did not demonstrate
T.J. suffered “serious physical harm as required under section
300, subdivision (b)(1).” Specifically, she argues that “even if it
was . . . mother’s fault [T.J.] lived with two separate relatives and
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then father,” who physically abused her by hitting T.J. with a
belt, she did not sustain “serious harm” because he did not
“cause[ ] any marks.” Moreover, while mother acknowledges T.J.
reported “she was whooped a lot” when residing with maternal
cousin and maternal grandmother following her placement with
maternal great-uncle, she argues those facts show only
“perceptions of risk, rather than actual evidence of risk, and do
not suffice as sufficient, substantial evidence.” Finally, mother
argues her plan to have T.J. temporarily reside with maternal
great-uncle did not cause T.J. to be at substantial risk of serious
physical harm.
In support of her argument, mother relies on In re J.K.
(2009) 174 Cal.App.4th 1426 (J.K.). J.K., however, does not
support mother’s contention. In J.K., the juvenile court explained,
“a showing of prior abuse and harm is sufficient, standing alone,
to establish dependency jurisdiction[.]” (J.K., supra, 174
Cal.App.4th at p. 1435, fn. omitted.) There, the court examined
the evidence in the record and found “given the totality of the
circumstances[,]” including the severity of abuse and the time
between the abuse and filing the petition, that the child was at
substantial risk of physical and emotional harm. (Id. at p. 1440.)
Here, as in J.K., the record contains sufficient evidence to
support the juvenile court’s finding that mother’s conduct
ultimately placed T.J. at substantial risk of suffering serious
physical harm. The record shows that after T.J. was placed with
maternal great-uncle per mother’s plan, maternal great-uncle
passed T.J. to maternal cousin, who T.J. claimed “whoop[ed]” her
“a lot.” When maternal cousin no longer wanted to take care of
T.J., maternal cousin contacted paternal grandmother and asked
her to take T.J. As mentioned above, father, paternal uncles and
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a paternal aunt also resided in paternal grandmother’s home.
While living with father, T.J. stated paternal uncle screamed at
her and “hit[ ] her a lot.” She also stated that father had hit her
with a belt and it hurt because he hit her with the buckle. There
was also evidence T.J. lived with maternal grandmother for some
time while mother was incarcerated. While with maternal
grandmother, T.J. stated she was hit and did not want to go back
there because she was “whooped.”
Ultimately, mother’s original plan to place T.J. in the care
of maternal great-uncle led to T.J. being abused by multiple
people before the Department removed her from mother’s
custody. Mother’s inappropriate plan essentially set in motion the
series of events and subsequent placements that resulted in T.J.
being physically abused by several relatives and therefore placed
her at substantial risk of serious harm. In sum, the evidence of
abuse is not “merely speculative.” (In re J.N., supra, at p. 776.)
We therefore disagree with mother’s argument that the evidence
did not prove T.J. was exposed to substantial risk of serious
harm.
In addition to placing T.J. with a relative who was
ultimately unwilling and unable to care for her, mother did not
ensure that relative was adequately prepared to provide such
care. Specifically, mother failed to provide documents or a
notarized letter confirming T.J.’s childcare arrangement with
maternal great-uncle. These documents would be necessary to
ensure T.J. received proper medical care had she fallen sick or if
there was an emergency while in maternal great-uncle’s care.
Consequently, mother’s failure to provide maternal great-uncle
with these documents lends further support for the juvenile
court’s jurisdictional findings pertaining to her.
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Moreover, because mother did not formalize the agreement
with maternal great-uncle, T.J. was at risk of being placed, and
ultimately was placed, in father’s care. The record clearly
indicates mother was aware of father’s mental health issues. For
example, she claimed she did not want father around T.J.
because he is “not in his right state of mind,” and is “sick in the
head.” Mother further claimed father “goes crazy” and “gets
aggressive.” She also admitted she had never left T.J. in father’s
care alone. Accordingly, mother knew father was not a proper
placement, yet she did not take sufficient steps to prevent T.J.
from ending up in his care.
Given the totality of the circumstances, the record shows
mother failed to make proper arrangements for T.J.’s care, and
thereby placed her at substantial risk of serious physical harm.
We therefore conclude the juvenile court correctly sustained the
allegations in count b-2 pertaining to mother.
III. Removal Under Section 361, Subdivision (c).
Pursuant to section 361, subdivision (c)(1), the juvenile
court may remove a child from the custody of a parent if it finds,
by clear and convincing evidence, “[t]here is or would be a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the
minor’s physical health can be protected without removing the
minor from the minor’s parent’s . . . physical custody.” “A juvenile
court’s removal order at a disposition hearing will be affirmed on
appeal if it is supported by substantial evidence. [Citation.]”
(V.L., supra, 54 Cal.App.5th at p. 154.)
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Our Supreme Court recently clarified the nature of
substantial evidence review applicable to a challenge to the
sufficiency of the evidence supporting a finding made under the
clear and convincing evidence standard. It held: “[A]n appellate
court must account for the clear and convincing standard of proof
when addressing a claim that the evidence does not support a
finding made under this standard. When reviewing a finding that
a fact has been proved by clear and convincing evidence, the
question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable
factfinder could have found it highly probable that the fact was
true. In conducting its review, the court must view the record
in the light most favorable to the prevailing party below and
give appropriate deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts in the
evidence, and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012 (O.B.).)
Mother contends the juvenile court erred by removing T.J.
from her. In support, she argues “there were reasonable means to
protect [T.J.] without removal since mother was able to make an
appropriate plan for T.J. while mother was incarcerated.” Mother
further argues she is able to arrange for an appropriate plan for
T.J. Her plan is to have T.J. reside with maternal great-uncle
until she is out of prison. Finally, mother argues “there was no
evidence [T.J.] was in substantial danger in the care of maternal
great-uncle.”
Mother relies on In re S.D. (2002) 99 Cal.App.4th 1068(S.D.), arguing “the Department did not prove mother was unable
to arrange for [T.J]’s care.” S.D. is inapplicable. There, the trial
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court sustained the petition under section 300, subdivision (g)4
and dismissed the subdivision (b) count. (Id. at pp. 1074.) The
“only remaining basis for jurisdiction” was the subdivision (g)
count. (Ibid.) The appellate court determined that at the
jurisdiction hearing, mother’s counsel improperly conceded that
subdivision (g), was applicable. (Id. at p. 1077.) Because mother’s
counsel “misunderstood the statute” and thus provided ineffective
assistance of counsel, the appellate court remanded the matter to
the trial court to determine whether a petition based on
subdivision (g) could be pled and proven. (Id. at p. 1080, 1083-
1084.)
Here, as discussed above, the juvenile court did not sustain
a subdivision (g) count; instead, with respect to mother, it
sustained only a subdivision (b) count. Moreover, on appeal,
mother does not contend she received ineffective assistance of
counsel. We therefore decline to apply S.D. as it concerned
different issues arising under a different subdivision of section
300.
Mother also relies on Maggie S. v. Superior Court (2013)
220 Cal.App.4th 662 (Maggie S.). Maggie S. is distinguishable.
There, the juvenile court sustained jurisdictional counts under
both section 300 subdivision (b) and (g). (Maggie S., supra, at p.
664.) The appellate court determined jurisdiction under
4 Under section 300, subdivision (g), a child may be declared
a dependent child of the court if “the child’s parent has been
incarcerated or institutionalized and cannot arrange for the care
of the child; or a relative or other adult custodian with whom the
child resides or has been left is unwilling or unable to provide
care or support for the child, the whereabouts of the parent are
unknown, and reasonable efforts to locate the parent have been
unsuccessful.”
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subdivision (b) was improper because the Department did not
allege the child was at substantial risk of serious harm, nor was
there substantial evidence of such a risk. (Id. at p. 673.)
Specifically, the appellate court noted that although the person
mother designated as the child’s caretaker in writing did not
release her medical records to renew her foster care license, the
record did not reflect the caretaker’s failure to release those
documents posed a risk of harm to the child. (Ibid.) Additionally,
the appellate court found jurisdiction was improper under
subdivision (g) as mother had arranged for, and designated in
writing, a plan for her child’s care while she was incarcerated.
(Id. at p. 672) As the appellate court explained, mother was not
required under subdivision (g) to prove suitability of the
placement and she was available to make other arrangements if
her original plan was unsuitable. (Id. at p. 673) The subdivision
(g) count was therefore improper. (Ibid.) Ultimately, the appellate
court reversed the sustained jurisdictional allegations. (Id. at pp.
672-674.)
In contrast to Maggie S., here, mother left no written
designation identifying maternal great-uncle as T.J.’s caregiver.
Furthermore, unlike the caretaker in Maggie S., maternal great-
uncle did not state to the Department that he was able or willing
to take care of T.J. (Maggie S., supra, at p. 673.) Ultimately,
mother’s plan led to T.J. being passed from one home to another,
caused instability to her life, and caused her to suffer physical
abuse. We note mother’s plan as stated in her appeal is for T.J. to
reside with the same maternal great-uncle who initially passed
T.J. on to other family members. In sum, there is sufficient
evidence to show mother’s plan for T.J. placed her at serious risk
of physical harm.
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Consequently, we conclude the record “contains substantial
evidence from which a reasonable fact finder could have found it
highly probable” (O.B., supra, 9 Cal.5th at p. 1011) that
“[t]here . . . would be a substantial danger to [T.J.’s] physical
health . . . if [she] were returned” to mother. (§ 361, subd. (c)(1).)
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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