In re B.P. CA2/5 ( 2021 )

Filed 10/1/21 In re B.P. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re B.P., a Person Coming Under B307711
the Juvenile Court Law.
___________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 20CCJP01243B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C. P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Julie Blackshaw, Judge. Affirmed in part and dismissed
in part.
Karen B. Stalter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel.
Shaylah Padgett-Weibel, under appointment by the Court
of Appeal, for B.P.
2
The court assumed dependency jurisdiction over nine-year-
old B.P. following the death of her three-week-old half-brother,
Maximus M. (Maximus). The court’s jurisdiction finding was
made solely pursuant to Welfare and Institutions Code section
300, subdivision (j),1 which applies if (1) a dependent child’s
sibling has been abused or neglected as defined in other specified
subdivisions of section 300 and (2) there is a substantial risk the
dependent child will be abused or neglected as defined in those
subdivisions. (In re I.J. (2013) 56 Cal.4th 766, 774 (I.J.).) C.P.
(Mother) appeals the jurisdiction finding and associated
disposition order, asking us to decide whether (1) the juvenile
court erred by not making an express finding as to the first of
these two elements and (2) whether there is sufficient evidence of
abuse or neglect of Maximus, a substantial risk to B.P.’s welfare,
and detriment justifying B.P.’s removal from Mother’s custody.2
I. BACKGROUND
A. Maximus’s Death
On February 18, 2020, at approximately 6:00 p.m., Mother
and Maximus’s father (Stepfather) drove Maximus to Good
Samaritan Hospital after he stopped eating, appeared pale, and
had spasms. Maximus was rushed to the emergency room where
1
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
2
Our resolution of these issues makes it unnecessary to
resolve the Department’s cross-appeal challenging the juvenile
court’s decision to decline to assume jurisdiction under section
300, subdivision (b)(1). (See, e.g., I.J., supra, at 773; accord, In re
I.A. (2011) 201 Cal.App.4th 1484, 1492.)
3
he was found to be “pulseless, apneic, limp, with central cyanosis
and cool skin.” The doctors performed cardiopulmonary
resuscitation and revived Maximus. The attending physician
observed Maximus was “severely hypothermic” and appeared to
be “severely dehydrated and malnourished.” The doctor also
observed abrasions along his right jaw and above his right
eyebrow.
Before transferring Maximus to Children’s Hospital Los
Angeles (CHLA), the emergency room doctor discussed with
Mother the events leading up to Maximus’s arrival at the
hospital. Mother said that in the preceding days Maximus had
been eating well (two ounces of formula every two hours), but in
the hours before his cardiac arrest he displayed a decreased
appetite.
After Maximus’s transfer, CHLA asked the Los Angeles
Police Department (LAPD) to conduct a child abuse investigation.
The police separately interviewed Maximus’s parents twice. Both
parents described the same essential course of events related by
Mother to an emergency room doctor: decreased appetite and
then seizure-like movements (Maximus becoming suddenly
“rigid” and “extend[ing] his legs and clench[ing] his hands” in the
hours preceding his cardiac arrest). Neither parent could offer
the police an explanation for Maximus’s condition even though
they were the child’s only caretakers.3
3
Mother said she believed the abrasions on Maximus’s face
were caused by a new sweater with a zipper that Maximus wore
for the first time earlier in the week and by the child scratching
himself. The doctor who treated Maximus told police detectives
the abrasions were “superficial” and “could have been caused by
anything.”
4
While the police took statements from the parents, a Los
Angeles County Department of Children and Family Services
(Department) social worker interviewed Maximus’s attending
physician at CHLA. The doctor said that Maximus, when
admitted to the hospital, had “dilated non-reactive pupils, lack of
spontaneous movement or respirations” and “bloody stools and
bloody gastric output.” Initial laboratory tests showed “severe
metabolic acidosis and severe anemia.” In his intake notes, the
doctor opined: “It is unclear what precipitated the cardiac arrest,
but given [the] bloody [gastrointestinal] output, [Maximus] may
have had a volvulus several days ago resulting in significant
blood loss and dehydration.”4
Over the course of the next several days, Maximus’s doctors
ordered various consultations and a battery of diagnostic tests,
including magnetic resonance imaging (MRI) studies of
Maximus’s brain and cervical spine. The brain MRI study
showed an “extensive subarachnoid hemorrhage over both
cerebral hemispheres, intraventricular hemorrhage in both
ventricles and blood surrounding the cerebellum and brain stem
extending into the upper cervical spinal canal.” MRI study of
Maximus’s spine revealed an “extensive subarachnoid
hemorrhage throughout the spinal canal.” The doctors advised
Maximus’s parents that based on the diagnostic tests and clinical
examinations it was “likely that [Maximus] would not walk, talk
or interact with them in a meaningful way.”
On February 21, 2020, after consulting with Maximus’s
doctors about his poor neurologic prognosis, Mother and
4
A volvulus is a twisting of a portion of the gastrointestinal
tract that can impair blood flow.
5
Stepfather elected to have Maximus compassionately
disconnected from his ventilator. Fifteen minutes after being
extubated, Maximus died.
B. The Dependency Petition and Subsequent Proceedings
While Maximus was being treated at CHLA and shortly
after his death, a Department social worker interviewed Mother,
Stepfather, and the other members of their household: B.P.,
Mother’s 17-year-old son M.P., her adult son Aldo P. (Aldo), and
his partner Patricia C. (Patricia).
Mother and Stepfather described for the social worker the
same course of events leading to Maximus’s hospitalization that
they described to hospital personnel and the police. The parents’
version of the precipitating events was not contradicted by any of
the other household interviewees. All of the interviewees,
including B.P.—who was home at the time Maximus was rushed
to the hospital—denied there had been any abuse of Maximus or
any other child living in the home. B.P., Mother’s older sons, and
Patricia said Maximus’s parents were “attentive” to the infant’s
needs and took “good care” of him. Although Aldo described
Stepfather as “really calm” generally, he did say that three weeks
earlier he saw Stepfather become frustrated and slam a door
when Aldo’s own child was crying. Hospital staff told the social
worker of similar volatile reactions by Stepfather on other
occasions: he slammed a door after being advised of CHLA’s
visitation policy and slammed his hand into a wall after learning
of Maximus’s poor prognosis.
The social worker interviewed B.P.’s father, Christopher P.
(Father), who had been divorced from Mother for approximately
seven years. Father said Stepfather had once used profanity
6
when discussing B.P. in an angry voicemail message he left on
Father’s phone.5 Father also advised he had seen Stepfather
drinking and smoking marijuana in the front yard of the home
Stepfather shared with Mother. Stepfather admitted to the social
worker that he smoked marijuana prior to Maximus’s birth and
he agreed to complete an on-demand drug test. Later, however,
stepfather reneged and refused to drug test.
The social worker also separately interviewed an
emergency room doctor from Good Samaritan Hospital and the
director of CHLA’s CARES (Child Abuse Reporting Electronic
System) team. Both reported they suspected Maximus was a
victim of child abuse due to the extensive brain bleeds, the blood
around his brain stem, his malnourished state upon admission,
and the fact that his parents’ statement of events seemingly did
not match his injuries.
A week after Maximus died, his parents agreed to submit to
polygraph examinations. Mother’s examination was determined
to be “negative” for deception. Stepfather’s examination,
however, was found to indicate deception. After the polygraph,
Stepfather admitted causing Maximus’s injuries in a statement
to the polygraph examiner. As recounted in a police report
obtained by the social worker, Stepfather “explained to the
polygraph examiner that he became angry with [Maximus] and
‘lost control’ for approximately five or ten minutes. [Stepfather]
grabbed [Maximus] by the arms and pulled him forcefully side to
side, causing injuries. [Stepfather] also grabbed [Maximus] by
the legs and pulled him forcefully side to side, causing injuries.”
5
Specifically, Father said Stepfather referred to B.P. as
Father’s “fuck[ing] daughter.”
7
After the polygraph examination, the police arrested Stepfather
for child abuse resulting in death (Pen. Code, § 273ab, subd. (a)).
Shortly thereafter, the Department filed a multi-count
petition asking the juvenile court to take dependency jurisdiction
over B.P.6 The petition alleged six counts under section 300: one
under subdivision (a) (risk of serious physical harm inflicted non-
accidentally), two under subdivision (b)(1) (substantial risk of
serious physical harm from a parental failure or inability to
protect), one under subdivision (f) (parental causation of the
death of another child through abuse or neglect), and two under
subdivision (j) (risk of abuse or neglect when a sibling has been
abused or neglected). All the counts alleged Maximus’s injuries
were “consistent with inflicted trauma.”
At the detention hearing, Mother denied the allegations.
The juvenile court ordered B.P. removed from Mother’s custody
and placed with Father. Mother was granted monitored
visitation and Stepfather was prohibited from having any contact
with B.P.
In advance of the jurisdiction hearing, a Department
investigator interviewed Mother. She said that on the day of
Maximus’s hospitalization, she took a shower and left B.P. in
Stepfather’s care. When Mother finished showering, Stepfather
told Mother he had put Maximus on the bed to calm him because
he had become fussy and whiny. Over the course of the next
several hours, Mother attempted to feed Maximus but he would
not eat. Then, while changing his diaper, Mother noticed
6
The petition as originally filed sought jurisdiction over both
B.P. and M.P. However, when M.P. turned 18 years old, the
juvenile court dismissed the petition as to him and the
Department filed an amended petition limited to B.P. alone.
8
Maximus was pale and limp; that’s when she and Stepfather took
him to the hospital.
Mother said she had no explanation for Maximus’s injuries
or malnourished condition because, prior to the day of his
hospitalization, his eating habits, bowel movements, and sleep
patterns had been normal. Mother denied witnessing any abuse
of Maximus by Stepfather. She had seen Stepfather playing with
Maximus’s hands and feet, but she never saw Stepfather do so in
a rough or forceful manner. Mother did concede Stepfather
would on occasion become impatient with Maximus when the
child would not stop crying, but she said he would not mistreat
Maximus and would seek Mother’s assistance with the infant on
those occasions. Mother also admitted she remained in
communication with Stepfather even though she knew he had
been arrested and the police reported he admitted abusing
Maximus.
The dependency investigator also interviewed Stepfather.
He stated that on the day of the hospitalization, while Mother
was in the shower, Maximus woke up and began whining.
Stepfather picked him up, burped him, checked his diaper, and
tried to feed him. At some point, Maximus “tensed up, balled his
fists, and started to cry,” before falling back to sleep. Maximus
also “tensed up” once more after Mother came out of the shower.
The parents, at first, attributed Maximus’s behavior to him
trying to have a bowel movement. After noticing that Maximus
was very pale below the waist, however, the parents decided to
take him to the hospital. Stepfather admitted to playing with
Maximus’s arms and legs but he adamantly denied losing control
and hurting Maximus. Stepfather also disputed he made any
9
incriminating statements after his polygraph examination; as
Stepfather put it, the detectives had “chang[ed] his words.”
The Department obtained medical records from Good
Samaritan Hospital, CHLA, and Monterey Park Hospital (the
hospital where Maximus was born). The records from Monterey
Park Hospital showed that while Maximus was born several
weeks early due to Mother’s elevated blood pressure, there were
no complications during the cesarean section delivery.
Maximus’s progress notes over the course of the next several days
showed he was in stable condition with no respiratory distress
and bonding with Mother. Three days after being born, Maximus
was discharged home in stable condition.
Shortly before the jurisdiction hearing, the Department
provided the juvenile court with a copy of Maximus’s autopsy
report, which concluded the cause and manner of death was
“undetermined.” The autopsy did not reveal any skeletal
fractures, a finding that was confirmed by radiographic
examination and consultation. Although the autopsy revealed,
and a neuropathy consultation confirmed, a subarachnoid
hemorrhage, the examiner stated the hemorrhage was
“consistent with reperfusion hemorrhage of respirator brain.
This means that the subarachnoid hemorrhage [wa]s not
necessarily due to trauma.” In view of these findings, the
examiner concluded “non-accidental trauma cannot be ruled in.”
In the examiner’s opinion, “[t]he possibility of volvulus is a strong
consideration but it cannot be definitively ruled in, since it was
not found at autopsy.” The examiner, however, further observed
“that volvulus has been known to resolve before imaging or
autop[s]y can establish the diagnosis.”
10
C. Jurisdiction and Disposition Hearing
At the combined jurisdiction and disposition hearing, the
juvenile court admitted the Department’s reports and their
supporting exhibits (including the medical records and police
reports) in evidence. The Department elected not to call any
witnesses, including the deputy medical examiner who performed
the autopsy.
Mother moved to dismiss the amended petition, arguing the
Department had not met its burden to prove Maximus’s injuries
were consistent with inflicted trauma. Mother’s attorney placed
particular emphasis on the autopsy report and the examiner’s
finding that he could not rule in non-accidental trauma as the
cause for the subarachnoid hemorrhage. B.P.’s counsel joined the
motion to dismiss, but only with respect to the petition counts
alleged under subdivision (a) and (f). The court granted the
motion to dismiss in part, finding the Department had not met its
burden of proof on the subdivision (a) and (f) counts because the
medical examiner could not determine a cause of death. The
court also dismissed the b-2 and j-2 counts in the dependency
petition, which alleged medical neglect by Mother, because the
medical records showed “Mother went to all of the doctor
appointments.”
After conferring with counsel off the record, the court
presented amended versions of the b-1 and j-1 petition counts
with changes intended to conform to the proof presented,
including the autopsy report. In pertinent part, these amended
counts alleged: “At the time of his death, Maximus was found to
have a focal contusion of the right forehead, focal abrasion under
the right chin, cerebral edema, diffuse subarachnoid
hemorrhages, severe metabolic acidosis, bloody gastrointestinal
11
output and possible volvulus. The autopsy report found the cause
and manner of death to be undetermined. [Stepfather], father of
the deceased half-sibling Maximus, has admitted that he inflicted
injuries to the half-sibling by becoming angry and losing control
while caring for Maximus and pulling him forcefully from side-to-
side by his arms and legs for five to ten minutes. [B.P.] was in
the home at the time of [Stepfather’s] infliction of injuries to
Maximus. By permitting [Stepfather] to live in the home and
have unrestricted access to [B.P.], [M]other has endangered [B.P.]
and created a detrimental home environment and place[d] [B.P.]
at risk of serious physical harm, damage[,] and danger.”
The juvenile court explained the rationale for the
amendments as follows: “The concern expressed in the amended
b-1 [and] j-1 [counts is] that [Stepfather], the father of the
deceased half-sibling, Maximus, has admitted to taking actions
that could very well be considered inappropriate and dangerous
to [Maximus], whether or not they caused the death, contributed
to the death. [¶] And the concern of the court is that this person
was living in the home of [B.P.], and has admitted himself that he
got angry, lost control, and forcefully pulled the baby side-by-side
by his arms and legs for five to ten minutes. . . . [¶] . . . [¶] I
don’t think there is any way in which the forceful pulling side-to-
side by arms and legs is the appropriate way to treat a child.
Whether it results in visible injuries or not.” None of the parties
objected to the court’s proposed amendments.
Turning to the presentation of evidence on the remaining
amended petition counts, Mother presented expert testimony
from Dr. Perry Lubens (Lubens), a board-certified pediatrician
and clinical neurophysiologist with a special competence in child
12
neurology.7 Based on his review of Maximus’s medical records,
including the MRI studies, Dr. Lubens opined Maximus “most
likely” suffered from an “intra-abdominal catastrophe,” possibly a
“mid-gut volvulus,” which resulted in Maximus’s severe anemia.
The anemia, in turn, caused the cardiac arrest, which deprived
his brain of blood, leading Maximus to suffer “irreversible brain
injury.”
Lubens further opined the reperfusion hemorrhaging
evident on the imaging studies was not the result of non-
accidental trauma. Rather, the hemorrhaging was due to the
cardiac arrest: “There was [a] lack of blood and oxygen supplied
to the brain. When that happens neurons die[ ]. In other words,
the working part of the brain dies. And also the whole blood
vessel network in the brain, capillaries and blood vessels are
injured. They don’t hold the blood within the blood vessels
anymore. They leak. When . . . [Maximus] was resuscitated and
the heart got going again some of that blood leaked out of these
leaky vessels into the subarachnoid space and that cause[d] the
subarachnoid hemorrhage.” Based on his review of the medical
records, Lubens “did not find any evidence that [Maximus] had
been shaken from five to ten minutes.” In response to a question
from the court, Lubens stated there was nothing in the autopsy
report with which he disagreed.
Following oral argument, the juvenile court dismissed the
amended b-1 count in the petition and sustained the subdivision
j-1 count because that count, in the court’s view, more closely
described B.P.’s situation. As the court explained it, B.P.’s half-
7
Lubens’s curriculum vitae, the only document offered by
Mother, was admitted in evidence by the juvenile court.
13
sibling Maximus was “abused by [Stepfather]. Whether or not it
caused the death, we don’t know. But we do have confessions
made by [Stepfather]. He has recanted. But I do believe that
[the] confessions made more contemporaneous to the events are
more credible. [¶] And frankly[,] I think the risk continues
because Mother has not ended her relationship with [Stepfather]
[following his arrest]. And should [Stepfather] be released from
prison, we don’t have any assurance that he would not move back
into the home and [Mother] will be appropriately protective of
[B.P.].” Neither Mother nor any other party objected to the legal
sufficiency of the court’s finding on the subdivision j-1 count.
After the jurisdiction ruling, Mother opted to testify during
the disposition phase of the hearing. She agreed she was aware
of Stepfather’s confession and arrest but she maintained
Stepfather posed no risk to B.P. Mother claimed she had decided
not to continue her relationship with Stepfather, but she
admitted she had not yet advised him of her decision. Mother
also testified she had been in regular telephonic contact with
Stepfather since his arrest: in the four weeks preceding the
hearing, she spoke with him on four to five occasions, the last
time being two days before the hearing.
The juvenile court was “not reassured” by Mother’s
testimony, highlighting her statement that she “maintained
contact with [Stepfather] during this period despite the fact
that . . . he is in custody for possibly having some culpability in
the death of their shared child.” The court also doubted Mother’s
honesty in testifying that she would not continue her relationship
with Stepfather because it appeared to the court that “the only
reason [Mother] said she would not talk to him again was
because that was what she thought the court would say.” The
14
court also was unsure whether Stepfather would remain in
custody on the arrest charge and for how long. The court found
Mother did not understand the risk Stepfather’s access to B.P.
posed and removed B.P. from Mother’s custody and ordered B.P.
released to the home of Father. Because B.P. was “closely
connected” to Mother and because Mother did not pose a direct
risk to B.P., however, the court ordered unmonitored visits for
Mother provided that Stepfather was not present.
II. DISCUSSION
Mother advances a legal contention—the juvenile court’s
section 300, subdivision (j) jurisdiction finding is infirm because
the court did not expressly find Maximus was neglected or
abused under one of the other pertinent section 300
subdivisions—as well as several sufficiency of the evidence claims
pertaining to both the jurisdiction and disposition rulings. All
are meritless. As we go on to explain: the legal contention is
forfeited and, in any event, wrong on the law; Stepfather’s
admission that he abused Maximus, plus other evidence of his
impatience with children and violent outbursts when frustrated,
is substantial evidence of abuse or neglect of Maximus; Mother’s
continued contact with Stepfather after his admission and
Stepfather’s hostile remark about B.P. are substantial evidence of
a substantial risk to B.P.’s welfare; and this same evidence,
particularly Mother’s continued contact with Stepfather, is
substantial evidence justifying the court’s decision to remove B.P.
from Mother’s custody.
15
A. Mother’s Failure to Object to the Legal Sufficiency of
the Jurisdiction Finding Forfeits the Issue and the
Contention Is Not Well Taken in Any Event
Section 300, subdivision (j), authorizes a juvenile court to
assume dependency jurisdiction over a child when the following
two requirements are met: “The 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.”
Mother maintains the juvenile court erred by failing to
make an express finding that Maximus was abused or neglected
under any of the predicate subdivisions referenced in subdivision
(j). Mother, however, never raised this argument in the
proceedings below. In fact, the record shows Mother never
objected to the amended subdivision j-1 count on any ground at
any time (either before or after the count was sustained). That
forfeits the point on appeal. (In re David H. (2008) 165
Cal.App.4th 1626, 1640 [“Allowing parties to challenge the facial
sufficiency of a petition for the first time on appeal conflicts with
the emphasis on expeditious processing of these cases so that
children can achieve permanence and stability without
unnecessary delay if reunification efforts fail. [Citation.]
Enforcing the forfeiture rule requires parties to raise such issues
in the juvenile court where they can be promptly remedied
without undue prejudice to the interests of any of the parties
involved”]; accord, In re Ashley B. (2011) 202 Cal.App.4th 968,
980, fn. 4 (Ashley B.); In re Christopher C. (2010) 182 Cal.App.4th
73, 81-83.)
Even if not forfeited, the argument would be unpersuasive.
“On its face, section 300, subdivision (j) does not require that the
16
court make an express finding under section 300 as to the subject
child’s sibling. Where, as here, the abused or neglected sibling is
deceased, the trial court need not sustain predicate findings on
behalf of the deceased sibling. Under these circumstances, it is
sufficient that the juvenile court made an implied finding that
the deceased sibling was abused or neglected as defined in one of
the enumerated subdivisions of section 300.” (Ashley B., supra,
202 Cal.App.4th at 980; see also I.J., supra, 56 Cal.4th at 774
[“‘Subdivision (j) thus allows the court to take into consideration
factors that might not be determinative if the court were
adjudicating a petition filed directly under one of those
subdivisions’”].)
B. Substantial Evidence Supports the Juvenile Court’s
Jurisdiction Finding Under Section 300, Subdivision
(j)
Subdivision (j) of section 300 “‘was intended to expand the
grounds for the exercise of jurisdiction as to children whose
sibling has been abused or neglected as defined in section 300,
subdivision (a), (b), (d), (e), or (i). Subdivision (j) does not state
that its application is limited to the risk that the child will be
abused or neglected as defined in the same subdivision that
describes the abuse or neglect of the sibling. Rather, subdivision
(j) directs the trial court to consider whether there is a
substantial risk that the child will be harmed under subdivision
(a), (b), (d), (e) or (i) of section 300, notwithstanding which of
those subdivisions describes the child’s sibling.’ [Citation.]” (I.J.,
supra, 56 Cal.4th at 774.)
Subdivision (j), in contrast to its predicate subdivisions,
lists factors for the court to consider. It states: “The court shall
17
consider 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.”
(§ 300, subd. (j).) “‘The broad language of subdivision (j) clearly
indicates that the trial court is to consider the totality of the
circumstances of the child and his or her sibling in determining
whether the child is at substantial risk of harm, within the
meaning of any of the subdivisions enumerated in subdivision (j).
The provision thus accords the trial court greater latitude to
exercise jurisdiction as to a child whose sibling has been found to
have been abused than the court would have in the absence of
that circumstance.’ [Citation.]” (I.J., supra, 56 Cal.4th at 774.)
Our review of a challenge to the sufficiency of the evidence
to support a juvenile court’s section 300, subdivision (j) finding is
for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633
[“‘In reviewing the jurisdictional findings . . . , we look to see if
substantial evidence, contradicted or uncontradicted, supports
them’”].) Here, the substantial evidence standard is met with
respect to both elements of a section 300, subdivision (j) finding.
With regard to the first (proof that one or more of the B.P.’s
siblings was abused or neglected), Stepfather admitted to the
polygraph examiner that he grew frustrated with Maximus, lost
control of himself, and pulled the infant’s arms and legs forcefully
for five to ten minutes. The juvenile court opted to believe
Stepfather’s admission over his subsequent recantation, and
understandably so. While that alone is adequate evidence of
predicate abuse of a sibling, there was more: undisputed evidence
that Stepfather would become inpatient and frustrated when in
18
the presence of crying children (Mother had to relieve him from
caring for Maximus when he was crying and Stepfather slammed
a door when Aldo’s child was crying), evidence that Maximus was
crying and “fussy” on the day in question when Mother was in the
shower and unavailable, and evidence that Stepfather would
occasionally lash out violently (slamming walls and doors) when
frustrated.
As for the second element of a section 300, subdivision (j)
showing (establishing B.P. was at substantial risk of abuse or
neglect at the time of the jurisdiction hearing), that too was
satisfied by substantial evidence. (I.J., supra, 56 Cal.4th at 773
[a juvenile court “‘need not wait until a child is seriously abused
or injured to assume jurisdiction and take the steps necessary to
protect the child’”].) B.P. was present in the home at the time
Stepfather confessed to abusing Maximus. Stepfather had made
a hostile comment about B.P. when leaving a voicemail message
for Father. Stepfather, as already recounted, would at times
become frustrated while in the presence of children, including a
child other than Maximus, and Stepfather at times reacted
violently when frustrated. Mother also continued to maintain
contact with Stepfather even after his admission to abusing
Maximus. There was no guarantee, as the juvenile court
observed, that Stepfather would remain in custody after his
arrest, and the juvenile court was entitled to disbelieve Mother’s
professed intention to end her relationship with Stepfather—
particularly since Mother never advised Stepfather of that
decision and instead continued to talk with him regularly by
telephone, including as late as two days before the jurisdiction
hearing.
19
C. Substantial Evidence Supports the Juvenile Court’s
Order Removing B.P. from Mother’s Custody
“[A] dependent child may not be taken from the physical
custody of the parent under section 361 unless the court finds
there is clear and convincing evidence there is or would be a
substantial danger to the child’s physical health, safety,
protection, or physical or emotional well-being if returned home,
and that there are no reasonable means to protect the child’s
physical health without removing the child.” (In re D.B. (2018)
26 Cal.App.5th 320, 328.) “A removal order is proper if it is based
on proof of (1) parental inability to provide proper care for the
minor and (2) potential detriment to the minor if he or she
remains with the parent.” (In re T.W. (2013) 214 Cal.App.4th
1154, 1163.) “‘The parent need not be dangerous and the minor
need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.’ [Citation.] The court may consider a parent’s past conduct
as well as present circumstances. [Citation.]” (In re N.M. (2011)
197 Cal.App.4th 159, 169-170.) We review a removal order for
substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562,
1574; see also Conservatorship of O.B. (2020) 9 Cal.5th 989,
1005.)
The evidence supporting the juvenile court’s exercise of
dependency jurisdiction under section 300, subdivision (j) that we
have already recounted is sufficiently strong to support the order
removing B.P. from Mother’s custody. Particularly relevant are
Stepfather’s admission to abusing Maximus, his propensity
toward frustration around children, and his continued contact
with Mother. Mother argues, however, that substantial evidence
did not support the removal order because Stepfather was still
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incarcerated at the time of the hearing. The point is
unpersuasive. (See, e.g., In re Carlos T. (2009) 174 Cal.App.4th
795, 806 [holding there was a substantial risk of future harm
because a father who had been convicted of sexually abusing one
of the children in question had not yet been sentenced or
exhausted his appeals; consequently, “there [wa]s a possibility
that [the] father would be released from custody and . . . resume
his . . . abuse”].) Mother also claims (in just three sentences) that
the juvenile court “should have considered whether there were
reasonable means to prevent removal, such as ordering frequent
home visits and offering family preservation services to verify
[B.P.’s] safety . . . .” Assuming the contention is adequately
presented, it is not a challenge to the sufficiency of the evidence
but rather a challenge to what the court assertedly failed to
consider—and it is forfeited for lack of an objection in the juvenile
court. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Alexandria
P. (2014) 228 Cal.App.4th 1322, 1346.)
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DISPOSITION
The juvenile court’s jurisdiction finding and disposition
order are affirmed. The Department’s cross-appeal is dismissed
as nonjusticiable.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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