In re Ja.C. CA2/3 ( 2015 )

Filed 9/25/15 In re Ja.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re JA. C. et al., Persons Coming Under B260946
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK80212)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
T. T.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Marilyn
Mordetzky, Referee. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Tyson B. Nelson, Deputy County Counsel, for Petitioner and Respondent.
_____________________
INTRODUCTION
Mother appeals the juvenile court’s judgment pursuant to Welfare and Institutions
Code1 section 300, subdivisions (b) and (j) finding jurisdiction over her sons Ja. and A.
Mother asserts that the court’s judgment sustaining allegations that Mother medically
neglected Ja. was not supported by substantial evidence. We affirm because substantial
evidence supports the court’s finding of medical neglect as to Ja., and that there was a
risk of future physical harm and danger to both children due to Mother’s poor judgment.
FACTS AND PROCEDURAL BACKGROUND
This is the family’s second dependency case. In 2009 and 2010, DCFS
substantiated allegations of emotional abuse toward Ja. resulting from domestic violence
occurring between the parents. In 2010, the juvenile court sustained jurisdiction over Ja.
based on allegations of domestic violence between Mother and Father, and allegations
that Mother failed to take action to protect Ja. from the violence. Following the 2010
dependency case, the family law court ordered Father to have physical custody of Ja.
from Thursday to Sunday, and Mother to have physical custody of Ja. for the remainder
of the week. A. has a different biological father, who was imprisoned for most of A.’s
life for a felony conviction, and Mother has had full custody of A.
On July 3, 2014 around 4:00 p.m., four-year-old Ja. accidentally injured his wrist
while wrestling with nine-year-old A. at Mother’s boyfriend’s home. Ja. told Mother that
his arm hurt and she put ice on it. The severity of Ja.’s injury was not immediately
apparent. Mother, A., and Ja. then drove to the beach an hour or so later with Mother’s
boyfriend and his children. Ja. continued to cry on and off. At the beach, Mother noticed
that Ja.’s arm was swollen and determined that he needed to be taken to the hospital.
Mother texted Father asking him to take Ja. to the hospital because it was her birthday.
Father did not respond. Mother told Ja. and A. that she could not take Ja. to the hospital
because she did not have enough gas. Mother drove the children home, bathed them, and
then drove Ja. to Father’s home. Shortly after 8:00 p.m., Mother dropped Ja. off with
1
All subsequent statutory references are to the Welfare and Institutions Code.
Father. At that time, Ja. was crying and his arm was still swollen. Father took Ja. to the
hospital, where Ja. was given a splint and scheduled for a follow up appointment with an
orthopedic doctor. Mother later told DCFS that she had wanted Father to take Ja. to the
hospital because she wanted Father to share in the responsibility of parenting Ja.
Subsequently, Father took Ja. to an orthopedic doctor, where he was given a cast for his
fractured wrist. Mother did not attend the follow up appointment because she was
babysitting other children, and because Mother was not aware that Ja. had fractured his
wrist until after he received the cast due to the parents’ poor ability to communicate with
each other.
Following Ja.’s injury, DCFS received and investigated a referral alleging that
Mother failed to obtain timely medical care for Ja. because it was Mother’s birthday and
she did not want to spend time at the hospital. On July 18, 2014, DCFS removed the
children from Mother’s care and placed A. in foster care and Ja. in Father’s care. Several
days later, the court ordered the children to be detained and for Mother to have monitored
visitation with the children.
DCFS filed a section 300 petition, alleging that Mother medically neglected Ja.
and that his sibling, A., was at risk of harm based on this neglect. At the jurisdiction
hearing, Mother and a DCFS social worker testified. The court found jurisdiction over
Ja. and A., pursuant to section 300, subdivisions (b) and (j) respectively and sustained2
allegations that:
The child [Ja.] was medically examined and found to have sustained a
closed fracture of the distal end of the right radius, and swelling to the right
wrist. [Mother] failed to properly delegate the duty to seek medical
attention for the child to the father by delegating the [father] to take the
child to the hospital on his non-custodial time absent an emergency by the
mother and failing to follow-up with the necessary doctor appointment [sic]
which required the child getting a cast on his arm. Such unreasonable
2
Although not at issue in this appeal, the court also sustained allegations that A.
came under the court’s jurisdiction pursuant to section 300, subdivision (b) because A.’s
biological father had felony criminal convictions, including convictions for child cruelty,
and his criminal history and conduct endangered A.’s physical and emotional well being.
conduct on the part of the mother endangers the child’s physical health and
safety and places the child [Ja.] and the child’s sibling, [A.], at risk of
physical harm, damage.
In making its ruling, the court noted that Ja.’s injury occurred during Mother’s
custodial time and not Father’s. The court stated that: Mother “doesn’t have a right to
delegate [her duty to take Ja. to the hospital] when it’s her custodial time unless there’s
an absolute emergency, and there wasn’t an absolute emergency in this case. It was
Mother’s birthday.” The court stated that it feared, “that due to Mother’s judgment with
this particular incident, . . . that when there isn’t an emergency and something occurs like
this again, that she will delegate that duty . . . .” The juvenile court then returned the
children to Mother’s custody and ordered the family to receive Family Maintenance
Services.
DISCUSSION
We review the juvenile court’s jurisdictional findings for substantial evidence.
(Los Angeles County Dept. of Children & Family Services v. Superior Court (2013)
215 Cal. App. 4th 962, 966.) “Substantial evidence is relevant evidence which adequately
supports a conclusion; it is evidence which is reasonable in nature, credible and of solid
value.” (In re R.C. (2012) 210 Cal. App. 4th 930, 941.) Although substantial evidence
may consist of inferences, the inferences “ ‘must be “a product of logic and reason” and
“must rest on the evidence” [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].’ ” (In re Savannah M. (2005)
131 Cal. App. 4th 1387, 1393-1394, italics omitted.) Conflicts in the evidence and
reasonable inferences are resolved in favor of the prevailing party. (In re Ricardo L.
(2003) 109 Cal. App. 4th 552, 564.) “[I]ssues of fact and credibility are questions for the
trier of fact.” (Ibid.)
1. Jurisdiction Under Section 300, Subdivision (b) Based on Medical Neglect Was
Supported by Substantial Evidence
Mother argues that the court erred in finding jurisdiction over Ja. pursuant to
section 300, subdivision (b), premised on Mother’s failure to obtain timely medical care.
A juvenile court may determine that a child is subject to the court’s jurisdiction under
section 300, subdivision (b), if it finds by a preponderance of the evidence that “[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 by the willful or negligent failure of the
parent or guardian to provide the child with adequate food, clothing, shelter, or medical
treatment . . . .” (§ 300, subd. (b)(1).) A jurisdictional finding under section 300,
subdivision (b) requires “three elements: (1) neglectful conduct by the parent in one of
the specified forms [in subdivision (b), such as failure to provide medical treatment];
(2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial
risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal. App. 4th 814, 820.) “In
determining whether the child is in present need of the juvenile court’s protection, the
court may consider past events.” (In re Petra B. (1989) 216 Cal App.3d 1163, 1169.)
Here, Mother acknowledges her judgment was neglectful of Ja. and delayed his
medical treatment. Yet, she argues her neglectful conduct did not cause serious physical
harm to Ja. We disagree. Mother’s action of delaying treatment caused Ja. hours of pain
and suffering. When Mother realized that Ja.’s arm was swollen at the beach, she chose
not to take him to the doctor and delegated her custodial duty to Father. Mother
confessed she did this because she did not want to spend her birthday in the hospital with
her injured son and because she believed that Father should take more responsibility in
caring for Ja. She also appeared to falsely represent to her children that she could not
take Ja. to the hospital because she did not have enough gas to get there, despite the fact
that she was capable of driving to the beach, then to her home, and subsequently to
Father’s home later that day. Mother has not presented any legal authority, nor have we
found any that would preclude a juvenile dependency court from finding jurisdiction
under subdivision (b) based on a factual finding that a parent intentionally failed to seek
immediate medical treatment for a child.
In addition, there is a present risk of harm to Ja. based on Mother’s poor judgment
and history of tension with Father. Here, Mother prioritized her birthday plans over
obtaining immediate medical care for her child. Mother also decided that equal division
of parental responsibilities was more important than addressing her crying son’s injuries.
As the court pointed out in its ruling, Mother’s poor judgment raises concerns regarding
what she would do if an emergency arose in the future.
In re Petra B., supra, 216 Cal.App.3d at page 1169, is instructive here. In that
case the court found there was substantial evidence to support a jurisdictional finding
based on the parents’ failure to seek necessary medical treatment for their daughter’s
injuries, even though the injuries had healed by the time of the hearing. The court
explained that “[t]he issue before the court . . . was not merely whether the wounds had
healed but whether Petra’s parents were capable of exercising and willing to exercise
proper medical care.” (Ibid.) The court concluded, based on the parents’ prior conduct
and continued belief that treatment with herbal remedies was appropriate for Petra’s
injury, that “the parents, at the time of the hearing, were not capable of exercising or
willing to exercise proper medical care.” (Id. at pp. 1169-1170 [“attitude of the parents
and confusion about proper medical treatment posed a then-existing threat to Petra’s
well-being and justified the court’s assumption of jurisdiction”].) Likewise, here,
Mother’s conduct in failing to obtain immediate medical care for Ja. and delegating her
responsibility to Father is substantial evidence that she was not capable of exercising
appropriate judgment or capable of obtaining timely medical care for Ja. in the future.
In arguing that there is not sufficient evidence to support the court’s jurisdiction,
Mother relies on In re David M. (2005) 134 Cal. App. 4th 822 in which the appellate court
reversed a jurisdiction order because the social services agency failed to show “evidence
of a specific, defined risk of harm to [the minors] resulting from mother’s or father’s
mental illness . . . .” (Id. at p. 830.) There, the court explained, “the evidence of
mother’s mental and substance abuse problems and father’s mental problems was never
tied to any actual harm to [the children], or to a substantial risk of serious harm.
Mother’s use of marijuana on at least one occasion while pregnant with [the younger
child] and her failure to obtain prenatal care at an earlier date in her pregnancy were
unquestionably neglectful acts, and we do not disagree with [the social services agency’s]
conclusion that mother’s substance abuse problem in this respect remains unresolved.
But [the younger child] tested negative for any drugs at birth, was healthy at birth, and
showed no signs of withdrawal from any controlled substances. . . . [¶] We also accept
as true that mother continues to suffer from a substance abuse problem with marijuana in
the limited respect shown on this appellate record, and that she and father both have
mental health issues. But [the agency] offered no evidence that these problems caused, or
created a substantial risk of causing, serious harm to [the children].” (Id. at pp. 829-830.)
The court reversed because it was clear that the parents’ problems had not impacted their
ability to care for the child. David M. is factually distinguishable from this case because
there is evidence of a specific defined risk of harm to Ja. and that Mother’s poor
judgment has impacted her care. Here, Mother’s neglectful conduct in failing to obtain
immediate medical care for Ja. directly caused Ja. pain and suffering.
Mother also inaptly relies on In re J.N. (2010) 181 Cal. App. 4th 1010, 1015-1017,
where the father drove under the influence of alcohol and was in a collision while his
three children were passengers in the car. The court found that this accident alone was
not sufficient to sustain an allegation under section 300, subdivision (b)(1) that the
parents “ ‘appear[ed] to have a substance abuse problem’ ” without any additional
evidence of substance abuse. (In re J.N., at p. 1021, italics omitted.) In re J.N. held that
when there has been but one incident of conduct endangering a child, the court should
look at both the type of problematic conduct and “all surrounding circumstances” in
determining whether jurisdiction is proper. (Id. at pp. 1025-1026.)
While the In re J.N. court found no evidence to support a finding that there was a
substantial risk the parents would repeat the dangerous conduct, such is not the case here.
Mother has a history of poor judgment involving Ja. In 2011, the court sustained
jurisdiction over Ja. based on domestic violence between the parents and Mother’s failure
to protect Ja. from being exposed to the violence. In this present dependency case,
Mother’s poor judgment and tension with Father manifest themselves again. Mother
appeared to use her injured child as a tool to teach Father a parenting lesson or make a
point about how Father does not do enough as a parent. This underlying tension between
the parents has clouded Mother’s judgment and demonstrated the need for the court’s
jurisdiction.
To the extent Mother asserts that she has completed parenting classes and quotes
favorable testimony from a DCFS social worker to this court, we may not reweigh or
express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal. 3d 826,
833.) In this regard, issues of fact and credibility are matters for the dependency court
alone. (In re Amy M. (1991) 232 Cal. App. 3d 849, 859-860.) As stated above, substantial
evidence supports the juvenile court’s ruling as to jurisdiction over Ja. We thus affirm.
2. Jurisdiction Over A. Under Section 300, Subdivision (j) Was Supported by
Substantial Evidence
Section 300, subdivision (j) provides jurisdiction where there is evidence that
“[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.” In evaluating whether there is substantial evidence of
abuse, the juvenile court “consider[s] 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.” (Ibid.)
“In determining whether the child is in present need of the juvenile court’s protection, the
court may consider past events.” (In re Petra B., supra, 216 Cal.App.3d at p. 1169.)
Here, the first prong of subdivision (j)’s analysis has been satisfied because we
affirm the court’s finding that Ja. was neglected as defined by section 300, subdivision
(b). In addition, as analyzed above, substantial evidence supports the conclusion that
there is a substantial risk that A. will also be abused as described under subdivision (b).
Mother’s questionable judgment and failure to prioritize her children’s medical care
before her own personal interests or tension with Father evidences a serious risk to the
children’s health and safety.
We thus conclude that substantial evidence supports findings that Ja. was abused,
as defined in subdivision (b), and that there is a substantial risk that A. will be abused, as
defined in subdivision (b). We therefore affirm the court’s finding of jurisdiction over A.
under subdivision (j).
DISPOSITION
The juvenile court’s judgment finding jurisdiction over Ja. and A. is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
EDMON, P. J.
LAVIN, J.