In re D.J. CA1/5 ( 2014 )

Filed 6/24/14 In re D.J. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re D.J. et al., Persons Coming Under the
Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN
& FAMILY SERVICES BUREAU,
A139280
Plaintiff and Respondent, A139982
v. A140147
T.A., (Contra Costa County
Defendant and Appellant. Super. Ct. Nos. J1300653, J1300654,
J1300655)
Appellant T.A. (Mother) argues on appeal no substantial evidence supports the
juvenile court’s jurisdictional and dispositional orders with respect to her daughter, A.J.
We affirm.
BACKGROUND
In May 2013, the Contra Costa County Children & Family Services Bureau
(Bureau) filed the present Welfare and Institutions Code section 3001 petition on behalf
of A.J, then nine years old. Related petitions were filed on behalf of Mother’s other
1
All undesignated section references are to the Welfare and Institutions Code.
1
daughter, D.J. (then 15 years old), and Mother’s niece, K.J. (then 11 years old). At the
time, Mother was K.J.’s legal guardian.2
The petitions alleged Mother struck D.J. on the face and head, leaving swollen
areas and a ringing in her ears. The petitions further alleged Mother previously punched
D.J. in the face, causing her nose to bleed. The petitions alleged Mother’s ability to care
for and supervise the minors was impaired. (§ 300, subdivision (b).) The petition on
behalf of D.J. also alleged she had suffered serious physical harm (§ 300, subd. (a)), and
the petition on behalf of A.J. alleged sibling abuse (§ 300, subd. (j)).
The contested jurisdictional hearing on all three petitions was held in July 2013.3
D.J. testified Mother hit her in the face three times with her fist, leaving a “lump,” and hit
her in the ear, leaving a ringing in her ears. D.J. testified Mother was angry because D.J.
said she did not believe in mind reading. On another occasion, Mother punched D.J. in
the face, causing a nosebleed. Mother had unprovoked angry outbursts at D.J. and other
people, behavior that had been going on for four years and was getting worse over time.
Mother also said things D.J. did not understand, for example, Mother talked about the
government tracking people down. In an interview with a Bureau social worker, as
2
In these consolidated appeals, Mother appealed from the jurisdictional findings as
to all three minors (case No. A139280), the jurisdictional findings and order terminating
Mother’s guardianship of K.J. (case No. A139982), and the jurisdictional findings and
dispositional orders regarding D.J. and A.J. (case No. A140147). The jurisdictional
findings appealed from in case No. A139280 are not appealable, but are reviewable in the
appeals from the dispositional orders in cases No. A139982 and No. A140147. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393, fn. 8.) Although courts have deemed
notices purporting to appeal from jurisdictional findings as appealing instead from a
subsequent dispositional order (see ibid.), we need not do so here because Mother also
appealed from the dispositional orders. Accordingly, we dismiss case No. A139280. In
addition, in her briefs on appeal, Mother contests only the jurisdictional and dispositional
orders with respect to A.J. She has therefore waived any arguments in case No. A140147
with respect to D.J. and in case No. A139982 with respect to K.J. We discuss the
background facts regarding D.J. and K.J. only as relevant to Mother’s arguments
regarding A.J.
3
Prior to this hearing, all three minors were removed from Mother’s custody and
released to D.J. and A.J.’s father (Father).
2
documented in a written Bureau report received into evidence, D.J. reported Mother
saying “ ‘the people in the telephone are watching her.’ ” D.J. stated Mother did not
hit A.J.
K.J. also testified at the jurisdictional hearing. She witnessed Mother hitting D.J.
repeatedly on the head. A.J. was also present. Mother had hit K.J. on the face on more
than one occasion. K.J. had not seen Mother hit A.J. K.J. also testified to
“embarrassing” things Mother said. For example, when K.J. wore a pedometer for a
health project at school, Mother told her “the government is actually tracking you
with pedometers.”
Tracy Kenney, the social worker who prepared the Bureau’s report, testified. Her
report described interviewing D.J. the day after, according to D.J., Mother hit her
repeatedly in the face. In this interview, Kenney witnessed swelling on D.J.’s forehead
and the left side of her face. Her report also recorded Mother’s statement that she had
spanked D.J. because she was being disrespectful. Mother subsequently stated she hit
D.J. with her fist on the shoulder, and D.J had hit her.
Kenney also testified to, and her report described, statements Mother made that
caused Kenney concern. Mother told Kenney, “ ‘A few churches are trying to take my
children. They are trying to make me a prostitute. I got evidence of all this. Using bio-
metrics and trying to make people slaves and all this.’ ” Mother later stated, “My
concern is why are these churches trying to take my children from me. Not only that did
you know that they were running around trying to say that I was a man, I was an it, I
didn’t give birth to my children.”
Father informed Kenney of his concerns about Mother’s “mental state.” He
reported Mother had exhibited angry and volatile behavior for the past three years.4
4
The Bureau’s report also described an interview with K.J.’s attorney regarding
Mother. Mother objected to this hearsay evidence. The juvenile court admitted the
evidence, but gave “very little weight to it if any.” Because, as we find below, other
substantial evidence supports the juvenile court’s findings, we need not and do not rely
on this evidence.
3
The juvenile court sustained the allegations that Mother “has displayed behaviors
that impairs [sic] her ability to care for and supervise the [minors]. [Mother] has been
volatile and violent towards and/or in front of the [minors].” The court also sustained the
section 300, subdivision (j) allegation with respect to A.J., and the section 300,
subdivision (a) allegation with respect to D.J. The court expressly found D.J. and K.J.
“very credible” witnesses and noted “[t]he descriptions that they provided for [Mother’s]
behaviors and anger are not inconsistent with behaviors that have been on display in
this courtroom.”
The dispositional hearing for D.J. and A.J. was held in September 2013. Two
Bureau reports were received into evidence. The reports described the minors as
“thriving” with Father, although the second report stated A.J. wished to return to live
with Mother. The reports described several instances in which Mother exhibited angry,
volatile, and/or threatening behavior with Bureau staff. The reports also noted Mother
continued to admit only to “spanking” D.J., rather than hitting her in the face.
Against the advice of counsel and her guardian ad litem5, Mother testified at the
dispositional hearing. Mother disagreed with the case plan’s recommendation she have a
mental health assessment because “I have no mental health issues within my family.”
Mother disagreed with the case plan’s requirement of domestic violence counseling
because “my child struck me and when she struck me I defended myself.” She testified
she did not need anger management services because “I’m not angry.”
The juvenile court adjudged D.J. and A.J. dependents of the juvenile court and
found by clear and convincing evidence there is or would be substantial danger to them if
they were returned to Mother’s custody.
5
Prior to the jurisdictional hearing, the juvenile court appointed a guardian ad litem
for Mother because the court concluded Mother was “unable to understand the
proceedings,” in part because she was “unable to follow [the court’s] basic instructions
. . . not to interrupt [the court].”
4
DISCUSSION
“ ‘When the sufficiency of the evidence to support a finding or order is challenged
on appeal, the reviewing court must determine if there is any substantial evidence, that is,
evidence which is reasonable, credible, and of solid value to support the conclusion of the
trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and
in reasonable inferences from the evidence] are to be resolved in favor of the prevailing
party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In
dependency proceedings, a trial court’s determination will not be disturbed unless it
exceeds the bounds of reason. [Citation.]’ [Citation.]” (In re Savannah M., supra, 131
Cal.App.4th at p. 1393.)
I. Jurisdictional Findings
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if
“[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 (j)
provides a basis for juvenile court jurisdiction if “[t]he child’s sibling has been abused or
neglected, . . . and there is a substantial risk that the child will be abused or neglected
. . . .”6 The Bureau had the burden of proving the basis for jurisdiction by a
preponderance of the evidence. (§ 355, subd. (a).)
Substantial evidence supports the juvenile court’s jurisdictional findings. There
was evidence Mother was physically violent with D.J. and had also hit K.J.; was volatile
and angry; and held unreasonable beliefs, yet became violent when D.J. disagreed with
these beliefs. This created a substantial risk Mother would be physically violent with
A.J. in the future.
Mother argues there was no evidence her unreasonable beliefs — for example, in
mind reading and that churches were trying to take away her children — created a risk of
physical harm for A.J. We disagree. There was evidence Mother physically abused D.J.
6
Mother does not dispute the allegation that A.J.’s sibling, D.J., had been abused.
5
because D.J. reasonably disagreed with Mother’s belief in mind reading. Substantial
evidence supports the finding that Mother’s physical violence in the face of disagreement
with her unreasonable beliefs placed A.J. at risk.
Mother also suggests there was no evidence her angry outbursts placed A.J. at risk.
We again disagree, as there was evidence Mother’s explosive temper at times led to
physical violence.
Mother argues her physical abuse of D.J. does not place A.J. at risk because it was
the result of a conflict specific to Mother and D.J. However, the “conflict” was the result
of D.J.’s refusal to agree with Mother’s unfounded beliefs, something that could easily
occur with A.J. as well. Moreover, there was evidence Mother had hit K.J. on more than
one occasion in the past, demonstrating Mother’s physical violence was not limited to
D.J. Evidence that A.J. was not afraid of Mother at the time of the jurisdictional hearing
does not preclude a finding she was nonetheless at substantial risk of physical harm.
II. Dispositional Findings
The juvenile court found “[t]here is substantial danger to [A.J.’s] physical health,
or would be if [A.J.] were returned home, and there are no reasonable means to protect
[A.J. without] removal of physical custody.” (See § 361, subd. (c)(1).)7
We conclude substantial evidence supports the court’s finding, for largely the
same reasons the jurisdictional findings are so supported. Although the dispositional
hearing took place seven weeks after the jurisdictional hearing, Mother continued to
display angry and threatening behavior. Moreover, in Mother’s testimony at the
7
The juvenile court made this finding by clear and convincing evidence. (§ 361,
subd. (c).) There is a split of authority over how a reviewing court should apply
substantial evidence review to such a finding. (Compare In re Angelique C. (2003) 113
Cal.App.4th 509, 519 [“on appeal from a judgment required to be based upon clear and
convincing evidence, ‘the clear and convincing test disappears . . . [and] the usual rule of
conflicting evidence is applied’ ”]; with In re Isayah C. (2004) 118 Cal.App.4th 684, 694
[review determines “whether there is substantial evidence from which a reasonable trier
of fact could make the necessary findings based on the clear and convincing evidence
standard”].) We need not decide the proper approach in this case because we affirm the
court’s finding in either event.
6
dispositional hearing, she refused to acknowledge the physical harm she caused D.J. or
her need for services.
Mother argues the trial court failed to consider the alternative of family
maintenance services. However, as noted above, at the dispositional hearing Mother
denied needing the recommended services. Mother’s citations to In re Jeannette S.
(1979) 94 Cal.App.3d 52 and In re Henry V. (2004) 119 Cal.App.4th 522 are unavailing.
In each case, the court of appeal reversed a removal order on the ground the child could
safely be kept in the custodial parent’s home with the provision of services. (In re
Jeannette S., at pp. 59-60; In re Henry V., at p. 529.) However, in each case the custodial
parent amply demonstrated willingness to take advantage of supportive services. (In re
Jeannette S., at p. 56; In re Henry V., at p. 529.) Here, in contrast, the juvenile court
reasonably could have found that family maintenance services would have been
ineffective because Mother denied needing such services.
DISPOSITION
The appeal in case No. A139280 is dismissed. The orders appealed from in cases
No. A139982 and No. A140147 are affirmed.
SIMONS, Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
7