In re J.G. CA2/3 ( 2023 )

Filed 3/8/23 In re J.G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re J.G., a Person Coming B319637
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 22LJJP00036A
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Donald A. Buddle, Jr., Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, Melania Vartanian, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
A.R. (mother) appeals from the dependency court’s
adjudication and disposition orders regarding her six-year-old
son, J.G. (the minor). The court found jurisdiction over the minor
under Welfare and Institutions Code section 300, subdivisions (a)
and (b), due to physical abuse by mother and her husband
(stepfather), and mother’s failure to protect the minor from
stepfather’s abuse.1 The court also removed the minor from
mother’s home and placed him with his biological father (father)
under the supervision of the Department of Children and Family
Services (Department). Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Mother and father have one child together and were in the
process of obtaining a family law custody order before these
proceedings began. The minor, who was then six years old, had
been living with mother and stepfather in Kern County but was
in father’s custody at the outset of these proceedings.
The minor came to the attention of the Department in early
December 2021, when the minor was briefly hospitalized due to
severe asthma. A medical social worker expressed concern that
mother and father were not communicating effectively regarding
the minor’s medical needs. Father had also reported that the
minor told him stepfather hit the minor with a belt on multiple
occasions.
The Department filed a detention report in late January
2022 which summarized the initial investigation. Father advised
1 Allundesignated statutory references are to the Welfare and
Institutions Code.
2
that he had taken custody of the minor on December 1, 2021, but
did not have the minor’s current asthma medication. The minor
began having difficulty breathing a few days later, which resulted
in his hospitalization. Father said that the minor had disclosed
that stepfather and the maternal grandfather2 had hit the minor
with a belt.
A Department social worker observed marks on the minor’s
body: several scratch marks on his right leg, a few dark spots on
the top of his feet, two scars on his left arm, and a couple of scars
on his right arm. The minor also told the social worker that when
he got in trouble, mother and stepfather “ ‘whoops me.’ ”
Although the minor reported feeling safe with mother and
stepfather, he stated that they would hit him in the buttocks area
with an open hand on occasion. The minor also said that
stepfather would hit him with a belt “ ‘everywhere’ ” and
described the hitting as “ ‘hard and hurts.’ ” On one occasion, the
minor said, stepfather hit the minor in the head with a belt,
causing a bump. Mother and stepfather denied the allegations of
physical abuse and suggested that father and his family had been
coaching the minor.
In mid-December, Janie Salazar3 conducted a forensic
medical examination of the minor. Her report indicated that
during the exam, the minor disclosed physical abuse by mother
and stepfather. Specifically, the minor said that stepfather “hits
me with a belt and my mom hits me with a hanger and
2The minor stated that he did not know who the maternal grandfather
was.
3The Department’s report incorrectly states that Salazar is a
physician. She is a nurse practitioner.
3
sometimes she tried to throw it at me. I hide under the bed, but
he (step-father) crawls under there and he grabs me by my hand
and drags me out.” As for physical findings, the report stated the
minor “has multiple hyperpigmented marks on this body, more
than the majority of children his age. He has linear parallel
marks, and loop marks on his body which are consistent with belt
marks. The history provided by the child of being hit with a belt
[is] consistent with the physical findings on examination today.
He is a victim of excessive corporal punishment which his mother
and step-father deny doing and likely a victim of physical abuse.”
On January 25, 2022, the Department filed a petition
under section 300, subdivisions (a) and (b), alleging physical
abuse by mother and mother’s failure to protect the minor from
physical abuse by stepfather. The court held the detention
hearing on January 28, 2022. The minor was detained from
mother and placed with father under the supervision of the
Department. The court ordered monitored visitation for mother a
minimum of three times a week for three hours per visit. The
court issued a no-contact order for minor and stepfather.
The Department filed its jurisdiction and disposition report
on February 28, 2022. The author of the report (the investigator)
had interviewed the minor in father’s presence at his home.
According to the investigator, the minor said stepfather
“ ‘whipped me everywhere all the time’ ” He also stated that
stepfather “ ‘whipped me with a belt. I be jumping while he’s
hitting me everywhere with the belt.’ ” The investigator asked if
mother ever hit him with an open hand or belt and he responded,
“ ‘Both; my mama really didn’t hit me that much.’ ” The
investigator also asked whether mother ever hit him with a
hanger and he said, “ ‘Sometimes; my mama didn’t really hit me
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that much.’ ” The investigator then asked whether there was ever
a time that the minor was hiding under the bed and stepfather
pulled him out from underneath. The minor stated, “ ‘Yeah, he
pulled me from under the bed and whipped me everywhere.’ ”
Father again indicated that the minor had reported being hit by
stepfather while at mother’s home. Mother again denied all
claims of physical abuse or discipline by herself and stepfather.
The court held a contested adjudication and disposition
hearing on March 17, 2022. The investigator who interviewed the
minor and prepared the Department’s second report testified.
Mother also testified and denied all allegations of physical abuse.
The court received and admitted several exhibits from mother,
including her written statement and some of the minor’s medical
records. The court admitted the Department’s two reports into
evidence as well.
The court sustained the jurisdictional allegations of the
petition as pled:
“a-1 [¶] On prior occasions, the [minor’s mother] physically
abused the child by striking the child with hangers and throwing
hangers at the child. Such physical abuse was excessive and
caused the child unreasonable pain and suffering. Such physical
abuse of the child by the mother endangers the child’s physical
health and safety, creates a detrimental home environment and
places the child at risk of serious physical harm, damage, danger
and physical abuse.”
“b-1 [¶] On prior occasions, the [minor’s mother] physically
abused the child by striking the child with hangers and throwing
hangers at the child. Such physical abuse was excessive and
caused the child unreasonable pain and suffering. Such physical
abuse of the child by the mother endangers the child’s physical
5
health and safety, creates a detrimental home environment and
places the child at risk of serious physical harm, damage, danger
and physical abuse.
“b-2 [¶] On prior occasions, the [minor’s stepfather]
physically abused the child by striking the child’s body with belts
inflicting pain, linear parallel marks and loop marks on the
child’s thigh, torso and feet. On a prior occasion, [stepfather]
struck the child’s head inflicting a bump to the child’s head. Such
physical abuse was excessive and caused the child unreasonable
pain and suffering. The child’s mother knew of the physical abuse
of the child by [stepfather] and the mother failed to take action to
protect the child. The mother allowed [stepfather] to reside in the
child’s home and to have unlimited access to the child. Such
physical abuse of the child by [stepfather] and the mother’s
failure to protect the child, endanger the child’s physical health
and safety, create a detrimental home environment and place the
child at risk of serious physical harm, damage, danger, physical
abuse and failure to protect.”
At the hearing, the court acknowledged the conflicting
evidence presented but stated that it was persuaded by the fact
that the minor’s account of physical abuse remained consistent
throughout the case and that the medical evidence tended to
corroborate his account.
As to disposition, the court found by clear and convincing
evidence that removal of the minor from mother’s care and
custody was necessary. The court ordered the minor placed in
father’s home under the supervision of the Department. The
court left its monitored visitation order in place for mother, with
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discretion for the Department to liberalize. Mother’s case plan
included parenting classes and individual counseling.4
DISCUSSION
Mother challenges the court’s jurisdictional findings as well
as the removal order. We address those issues in turn.
1. Standard of Review
“ ‘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. … “[W]e 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 trial 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 trial 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.) Substantial evidence is “ ‘evidence which is reasonable,
credible, and of solid value[.]’ ” (In re I.C. (2018) 4 Cal.5th 869,
892.)
4Father requested and received a permanent restraining order
prohibiting mother from contacting him or members of his family other
than the minor.
7
Finally, and with respect to the court’s removal order,
which requires proof of substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the
minor by clear and convincing evidence (§ 361, subd. (c)), we
“must determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1005.)
2. Substantial evidence supports the court’s
jurisdictional finding that mother failed to protect the
minor from stepfather’s physical abuse.
Mother argues that none of the three jurisdictional
allegations is supported by substantial evidence. But “ ‘[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 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.’ ” (In re I.J., supra,56 Cal.4th at p. 773.) We therefore address only the allegation
under section 300, subdivision (b), regarding mother’s failure to
protect the minor from stepfather’s physical abuse, and we find it
to be supported by substantial evidence.5
5We need not, and therefore do not, address mother’s arguments
regarding the other two jurisdictional allegations.
8
Under section 300, subdivision (b), a juvenile court may
exercise dependency jurisdiction if 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 … .’ ” (See In re E.E. (2020) 49 Cal.App.5th 195, 205.)
“Although section 300 generally requires proof the child is subject
to the defined risk of harm at the time of the jurisdiction hearing
[citations], the court need not wait until a child is seriously
abused or injured to assume jurisdiction and take steps necessary
to protect the child [citation]. The court may consider past events
in deciding whether a child presently needs the court’s protection.
[Citation.] A parent’s ‘ “[p]ast conduct may be probative of
current conditions” if there is reason to believe that the conduct
will continue.’ [Citation.]” (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1215–1216.)
Section 300, subdivision (b) applies, as pertinent here,
when a child has suffered “serious physical harm” as a result of a
parent’s failure to protect the child. There is substantial evidence
that the minor suffered serious physical harm at the hands of
stepfather and that mother failed to protect the minor.
Specifically, the minor stated that he had been beaten with a belt
by stepfather on multiple occasions. He indicated that the
beatings were “ ‘hard’ ” and “ ‘hurt,’ ” and on at least one occasion
he was hit in the head with the belt, which left a lump. These
beatings happened with some frequency, as the minor said
stepfather “ ‘whipped me everywhere all the time.’ ” The minor’s
attempts to avoid stepfather’s abuse were unsuccessful. He said
that when he tried to hide, stepfather “ ‘pulled me from under the
bed and whipped me everywhere.’ ” Medical evidence
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corroborated the minor’s statements. Indeed, the forensic medical
examination revealed that the minor had suffered bruises in the
shape of parallel lines and loops, consistent with the use of a belt
during corporal punishment.
Mother contends that substantial evidence contradicts the
minor’s assertions of abuse. For example, mother notes that the
physicians who examined the minor during his hospitalization
did not observe any signs of physical abuse. And mother contends
that those findings were never shared with the nurse who
conducted the forensic physical examination of the minor. She
also urges that father had sole custody of the minor for two
months before the Department filed its petition, insinuating that
he had time to coach the minor and motive to do so in light of the
couple’s ongoing custody dispute.
Essentially, mother invites us to reweigh the evidence
before the juvenile court and make a finding in her favor. That is
not our role, however. (See In re I.C., supra, 4 Cal.5th at p. 892
[noting appellate court does not reweigh the evidence or exercise
independent judgment, instead determines whether sufficient
facts support the order of the trial court].) This is particularly
true where, as here, the court properly considered all the
conflicting evidence and found that the minor’s account was
credible. Such credibility determinations are entitled to
deference. (See, e.g., In re R.T. (2017) 3 Cal.5th 622, 633.) In any
event, the finding is amply supported. Viewing the evidence in
the light most favorable to the court’s ruling, the record shows
that the minor told five different people (father, paternal
grandmother, social worker, dependency investigator, forensic
medical examiner) during at least five separate interviews that
stepfather whipped him with a belt on multiple occasions. The
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court rejected mother’s argument that the minor had been
coached by father because the minor’s statements were consistent
over time and corroborated by the forensic medical examination.
We see no error in the court’s conclusion.
3. The removal order is supported by substantial
evidence.
Mother also argues the court erred in removing the minor
from her custody. Again, we disagree.
Removing a child from a parent’s custody is a matter of last
resort. Accordingly, section 361, subdivision (c), limits “ ‘the
court’s authority to restrict a parent’s rights following the
exercise of dependency jurisdiction.’ ” (In re S.R. (2020) 48
Cal.App.5th 204, 218–219.) The provision states in pertinent
part: “A dependent child shall not be taken from the physical
custody of his or her parents … with whom the child resides at
the time the petition was initiated, unless the juvenile court finds
clear and convincing evidence of any of the following
circumstances[:] … [¶] (1) There 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 [was] 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. …” (§ 361,
subd. (c)(1).) As noted, we “must determine whether the record,
viewed as a whole, contains substantial evidence from which a
reasonable trier of fact could have made the finding of high
probability demanded by this standard of proof.”
(Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.)
“A removal order is proper if it is based on proof of
(1) parental inability to provide proper care for the minor and
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(2) potential detriment to the minor if he or she remains with the
parent. [Citation.] The parent need not be dangerous and the
minor need not have been harmed before removal is appropriate.
The focus of the statute is on averting harm to the child.” (In re
T.W. (2013) 214 Cal.App.4th 1154, 1163.) The juvenile court may
consider the parent’s past conduct as well as the present
circumstances. (See, e.g., In re John M. (2012) 212 Cal.App.4th
1117, 1126.)
Mother’s only challenge to the court’s removal order rests
on her contention that some of the evidence presented to the
court contradicted the minor’s statements that he was physically
abused by stepfather. But as we have already explained, we do
not reweigh the evidence and we defer to the court’s assessment
of the minor’s credibility. Mother’s argument is therefore
unpersuasive.
In any event, the same evidence discussed ante regarding
stepfather’s physical abuse supports the court’s removal of the
minor from mother. Mother and stepfather are married, live
together, and at the time of disposition they had two children
together. There is no indication in the record that mother would
consider separating from stepfather in order to protect the minor
from him. Mother’s repeated denial that any physical abuse
occurred provides further support for the court’s removal order.
(See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne
cannot correct a problem one fails to acknowledge”]; see also In re
M.R. (2017) 8 Cal.App.5th 101, 109 [parent’s minimization of
problematic conduct calls into question parent’s general
judgment]; cf., In re Jasmine G. (2000) 82 Cal.App.4th 282, 286
[removal order reversed where parents had expressed remorse for
prior physical abuse, engaged in treatment, and had changed
12
their attitude about corporal punishment].) Although mother had
completed a parent education class, had enrolled in an anger
management program, and was scheduled to begin individual
counseling by the time of the disposition hearing, it was well
within the court’s discretion to conclude she had not yet made
sufficient progress to lessen the danger to the minor.
DISPOSITION
The adjudication and removal orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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