In re S.L. CA4/1 ( 2021 )

Filed 12/29/21 In re S.L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re S.L., a Person Coming Under
the Juvenile Court Law.
D078958
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
Plaintiff and Respondent, (Super. Ct. No. J520636A)
v.
J.L.,
Defendant and Appellant.
Ju.L.,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Affirmed.
Elena S. Min, under appointment by the Court of Appeal, for Defendant
and Appellant, J.L.
Paul A. Swiller, under appointment by the Court of Appeal, for
Respondent, Ju.L.
1
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff
and Respondent.
J.L. (Mother) appeals the dispositional order issued in the Welfare and
Institutions Code section 3001 dependency proceedings for her now three-
year-old daughter, S.L. Mother contends: (1) substantial evidence does not
support the juvenile court’s dispositional order placing S.L. in the care of her
father, Ju.L. (Father); and (2) the court prejudicially erred by excluding from
evidence certain exhibits that she offered at the contested jurisdictional and
dispositional hearing. Based on our reasoning post, we disagree and affirm
the order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2017, Mother and Father began a cohabitation relationship that
resulted in S.L.’s birth in April 2018. In February 2019, their relationship
ended and family court proceedings were subsequently conducted in
Washington and California regarding their respective rights to custody of,
and visitation with, S.L. Mother also obtained temporary restraining orders
(TROs) against Father in both states, but those restraining orders were not
made permanent.
In January 2020, Mother moved with S.L. to Seattle, Washington and
lived with maternal relatives. In February, Father also moved to Seattle. 2
In April, Mother began a relationship with A.H. and became pregnant. A.H.
1 All statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2 Although Father stated they had reconciled, Mother disagreed and
stated she merely arranged for Father’s housing and employment in
Washington because he complained about paying child support.
2
had a history of sexual abuse as a minor, both as victim and as a perpetrator.
He also had a criminal history, including convictions for entering a
noncommercial dwelling and tampering with a vehicle.
In April, Mother left S.L. with the maternal grandmother and returned
to San Diego purportedly to retrieve her vehicle.3 While Mother was in San
Diego, Father picked up S.L. from the maternal grandmother, took her back
to San Diego, and refused to return her to Mother. On Mother’s return to
Washington, she obtained a court order requiring Father to return S.L. to her
and Father complied with that order. In September, Mother and A.H. had an
argument and temporarily broke up and A.H. was subsequently placed on a
section 5150 hold.
In October, Father visited S.L. three days in a row. Each time, A.H.
brought S.L. to him and picked her up after Father’s visit. On the third day,
Father observed bruising on S.L.’s back and shoulder that appeared to be bite
marks. Father photographed the bruises, but did not report them to
authorities or seek medical treatment for S.L. and returned her to Mother
pending family court proceedings. In mid-December, A.H. cared for S.L.
while Mother gave birth to A.L.
On December 17, the California family court held a contested hearing
regarding S.L. and issued a custody and visitation order requiring, inter alia,
Mother to give S.L. to Father by 2:00 p.m. on December 24. The order
provided that if Mother remained in San Diego, the parents would share
physical custody of S.L. based on a “2/2/5” schedule. However, if Mother were
to return to Washington, then Father apparently would have primary
physical custody of S.L.
3 Father instead asserted that Mother had moved back to San Diego.
3
At 2:00 p.m. on December 24, A.H., alone, brought S.L. to Father for his
visitation. Father did not observe any bruising on S.L. on December 24 or 25.
Father cared for S.L. until 8:00 a.m. on December 25. At 4:00 p.m. on
December 25, Father picked up S.L. and cared for her until 8:00 a.m. on
December 27.
At 8:00 a.m. on December 26, Father gave S.L. a bath for the first time
in December. He observed, and then photographed, bruises on her bottom,
including large bruises on the left and right side of her buttocks that were
shaped like bite marks. On observing the bruises, the paternal great-
grandmother thought they looked like bite marks. Other friends and
relatives advised Father to call the child welfare services hotline to report the
suspected child abuse and take S.L. to a doctor.
That evening, Father sent Mother an email message informing her that
he had observed bruises on S.L.’s bottom and asking her if she knew a reason
for them. Mother replied that she had not seen the bruises and suggested
that S.L. may have sustained the bruises while in his care. Despite Father’s
further questions, Mother had no explanation, and denied any responsibility,
for S.L.’s bruises. When he asked who else had watched S.L. in Mother’s
home, Mother did not reply.
Father called the child abuse hotline, reported the suspected child
abuse of S.L., and was instructed to take her to a doctor. He then called and
scheduled a doctor’s appointment for S.L. on either December 28 or 29 and
then asked Mother to take S.L. to the appointment. Father returned S.L. to
Mother later on December 27.
On December 29, a San Diego County Health and Human Services
Agency (Agency) social worker visited Mother’s home and observed, and took
photographs of, bruises on S.L.’s buttocks. Mother stated she had seen S.L.’s
4
bruising after her return on December 27, but did not report it to anyone.
She had postponed S.L.’s doctor’s appointment because she had not been
given sufficient notice to obtain transportation. The social worker drove
Mother and S.L. to the hospital where Dr. Natalie Laub, a child abuse
medical expert, examined S.L. Mother told Dr. Laub that she was the only
person who cared for S.L. and initially stated no one else lived with them, but
later admitted A.H. lived in the home. Mother stated she had not seen any
bruising on S.L. when she bathed S.L. on December 25 prior to going to
Father’s home.
Dr. Laub found that S.L. had “[t]wo adjacent semilunar
brownish/yellow bruises on middle of left buttock. Within the larger bruises
there are smaller more violaceous areas. This bruise is consistent with a
human bite mark.” In addition, Dr. Laub found “[t]wo adjacent bruises on a
right buttock with a similar semilunar appearance, however the bruises
themselves are more amorphous. This could also be consistent with a human
bite mark.” Dr. Laub opined that the bruises were indicative of physical
abuse and, in particular, expressed concern that S.L. had been sexually
abused. Dr. Laub could not determine specifically when S.L. suffered her
injuries, but could only conclude that the injuries occurred when Father,
Mother, and A.H. had access to S.L.
When San Diego Police Detective Thibault-Hamill interviewed Mother,
Mother stated A.H. did not seem to be mentally stable. When shown
photographs of S.L.’s injuries, Mother appeared to show no empathy. When
another officer interviewed A.H., he implied that he had cared for S.L., as
well as for his newborn son, A.L.
In January 2021, the Agency filed a section 300, subdivision (b)(1)
petition, alleging that on or about December 26, 2020, S.L. had suffered, or
5
there was a substantial risk of her suffering, serious physical harm or illness
as a result of the failure or inability of her parent to supervise or protect her
adequately. In particular, the petition alleged S.L. suffered bruising on both
sides of her buttocks, which bruising a child abuse expert determined to be
consistent with a human bite mark and were indicative of physical abuse. It
further alleged that neither parent could explain how S.L. had suffered those
injuries and that she had been in the care of Mother, Father, and A.H. during
the time the bruising was discovered.
At the detention hearing, the court found the Agency had made a prima
facie showing in support of its petition, detained S.L. in out-of-the-home care,
and granted Mother and Father supervised visits. The court also found that
Father was S.L.’s presumed father.
In its initial jurisdiction and disposition report, the Agency stated that
S.L.’s foster mother had reported an incident during which S.L. had touched
the penis of her four-year-old foster sibling in the bathroom. The foster
mother also reported that S.L. had tantrums and cried at night. When an
Agency social worker attempted to speak with A.H., he declined to do so on
advice of his counsel. Mother wanted her attorney to be present when
meeting with the social worker, but such meeting had yet to occur. Father
told the social worker that he should have taken S.L. for medical attention
before returning her to Mother.
At the February initial jurisdiction and disposition hearing, pursuant
to the parents’ request, the court set a contested hearing on the petition’s
6
allegations and S.L.’s placement. In March, the court ordered that S.L. be
detained with her maternal aunt.4
In its addendum report, the Agency stated that both parents had
enrolled in child abuse and parenting classes. After A.H. had threatened the
relative caregiver for A.L. (S.L.’s sibling), that relative refused to supervise
his visits with A.L. or allow him in her home. The Agency also reported that
Father’s visits with S.L. had gone well and he had called nightly to talk with
her. He also had attended her dental appointment along with the maternal
aunt.
At the contested jurisdiction and disposition hearing held over four
days in April and May, the court admitted in evidence the Agency’s reports
and addenda and certain exhibits offered by Mother. The court also heard
the testimony of Dr. Laub, Mother, Father, two Agency social workers, and
Dr. Thomas Grogan, a pediatric orthopedic expert. Dr. Laub testified that
S.L.’s bite marks were caused by a human, not an animal, and the
perpetrator would have been at least a teenager, based on the size of the
bites. Based on scientific literature, S.L.’s bruises could not be dated because
there is no standard progression regarding a bruise’s colors and in which
order the colors appear. An adult bruise that contains the color yellow would
be over 18 hours old, but children heal differently than adults. Dr. Laub
disagreed with Dr. Grogan’s position that S.L.’s bruises were four to six days
old when a photograph was taken of them. Rather, Dr. Laub could not
determine whether S.L.’s bruising had been inflicted hours before, the night
before, or days before the photograph had been taken. Dr. Laub was
4 In A.L.’s separate dependency proceeding, he was detained in the home
of a paternal relative. The orders issued in A.L.’s dependency case are not
the subject of the instant appeal.
7
concerned that S.L. had been sexually abused because her bite marks were
located on a private area of her body. Although S.L.’s genital area did not
show signs of sexual abuse, scientific literature reported that adults bite
children and their private parts for sexual gratification. Although she could
not determine the perpetrator’s intent from S.L.’s injuries, Dr. Laub
concluded that S.L.’s injuries showed child abuse, whether it was sexual
abuse or merely physical abuse. Furthermore, the bites that resulted in the
bruising would have been painful to S.L. when inflicted.
Mother testified that she was S.L.’s primary caregiver when she was
with her, although A.H. would help her with little things. A.H. paid her rent
and most of her other expenses. On December 25, she did not observe any
bruising on S.L.’s buttocks when she bathed S.L. about 15 to 20 minutes
before she went to Father’s home. When S.L.’s bite marks were discovered,
only A.H. lived with her in the home. Mother denied ever seeing A.H. doing
anything inappropriate with S.L. She further denied ever leaving S.L. or
A.L. alone with A.H., even when she showered. She had postponed S.L.’s
doctor’s appointment because she did not have transportation and did not
consider her injuries to be urgent. Mother testified that she was concerned
S.L. had been injured at Father’s home because he was abusive, had
substance abuse issues, and lived with others that had substance abuse
issues. Mother stated that Father had been violent toward her seven to 10
times and S.L. was present each time. She testified that Father had punched
her, pulled her hair, and pushed her while in S.L.’s presence or when she was
holding her. The most recent incident of Father’s aggression in S.L.’s
presence was in February 2020, during which incident he yelled at Mother
while driving under the influence. She did not believe Father had ever
received substance abuse treatment.
8
Although Mother testified that she was currently living with a friend,
she did not identify that friend or give any details about where she was
residing. She stated that A.H. did not come to her home. Mother was
unaware that A.H. had been the victim and perpetrator of sexual abuse.
When she asked him whether he had hurt S.L., A.H. denied it. She testified
that she currently was not sure whether she believed his denial. His
outbursts with his relatives made her think he may have caused the bruising,
although she had never seen him angry before that. She did not know
whether it was safe to leave S.L. and A.L. in his care.
Father testified that after his three visits with S.L. in mid-October
2020, he did not see her again until December 24. He did not perform a body
check of S.L. each time he received her from Mother and A.H. When on
December 26 he bathed S.L. for the first time, he observed the bruises and
tried to ask her what happened, but she just smiled. He testified that he was
S.L.’s caregiver the entire time that he had her over the Christmas holidays.
After consulting with relatives and friends about his suspicions that S.L. had
been abused and after Mother did not respond to his questions about the
bruising, he called the child abuse hotline on the morning of December 28.
The social worker with whom he had spoken advised him to seek medical
attention for S.L. as soon as possible. Father testified that he should not
have returned S.L. to Mother, but did not want to violate the family court
order. He denied driving under the influence of alcohol with Mother and S.L.
in the car; rather, Mother had been driving. He was not concerned that
Mother would hurt S.L. prior to the December court hearing or when they
both cared for her together.
An Agency social worker testified that A.H. had threatened the relative
caregiver of A.L., stating: “I hope you die.” A.H. had recently enrolled in a
9
child abuse group class and was participating in a parenting class. A.H. did
not discuss with the social worker his section 5150 incident. Mother was
calm and patient during her visits with S.L. and A.L. The social worker had
spoken with Father and observed many of his visits with S.L. and had not
noticed that he had any anger issues.
Dr. Grogan, a pediatric orthopedic expert, testified that his observation
of Father’s photograph of S.L. showed a bite mark pattern in her bruising.
He was fairly certain the bruising was caused by an adult. Based on findings
from his 1984 study on adult rabbits, he opined that the bruising shown on
the photograph of S.L. would appear within one hour and would not take 14
to 16 hours to appear and that the bruising would have been inflicted within
four to six days before. However, he had not performed any research on the
dating of bruising to children in S.L.’s age range. S.L.’s bruising did not
require an emergency hospital visit and would have resolved without medical
treatment.
Considering the evidence and arguments of counsel, the court found the
petition’s allegations true by a preponderance of the evidence. The court then
heard arguments of counsel on S.L.’s disposition and found there was not
clear and convincing evidence to support her removal from Father’s custody,
stating: “Father . . . remained concerned, remained proactive, remained
offering to do anything that he could to be able to ensure that he could
support [S.L.] in maintaining her health and safety.” However, regarding
Mother, the court was concerned she could not properly assess the risk of
harm to S.L., noting Dr. Laub testified that S.L.’s injuries would have been
painful to her and Mother had postponed medical treatment for her and
failed to look into her injuries. By clear and convincing evidence, the court
10
found that removal of S.L. from Mother’s custody was necessary to protect
her.
Mother timely filed a notice of appeal challenging the court’s
dispositional order.
DISCUSSION
I
Jurisdictional and Dispositional Findings Generally
A
Jurisdiction. “ ‘A dependency proceeding under section 300 is
essentially a bifurcated proceeding.’ [Citation.] First, the court must
determine whether the minor is within any of the descriptions set out in
section 300 and therefore subject to its jurisdiction.” (In re Stephen W. (1990)
221 Cal.App.3d 629, 645.) In particular, section 300, subdivision (b)(1)
provides that a child is within the jurisdiction of the juvenile court and may
be adjudged a dependent child of the court 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 the parent or guardian to adequately
supervise or protect the child or the willful or negligent failure of the child’s
parent or guardian to adequately supervise or protect the child from the
conduct of the custodian with whom the child has been left. A section 300
petitioner has the burden to prove by a preponderance of the evidence that
the petition’s allegations are true and the child is therefore subject to the
court’s jurisdiction. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993)
5 Cal.4th 242, 248 (Cynthia D.); In re Brison C. (2000) 81 Cal.App.4th 1373,
1379.)
11
B
Disposition. After a juvenile court exercises jurisdiction over a child
pursuant to section 300, it must determine the appropriate disposition for
that child. (§§ 360, subd. (d), 361, 362; In re N.M. (2011) 197 Cal.App.4th
159, 169 (In re N.M.).) The court has broad discretion in choosing an
appropriate disposition that serves the child’s best interest. (In re Nada R.
(2001) 89 Cal.App.4th 1166, 1179.) Before physically removing a child from
his or her parent, the court must find, by clear and convincing evidence, that
the child would be at substantial risk of harm if returned home and that
there are no reasonable means to protect the child without such removal. 5
(§ 361, subd. (c)(1); In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.); In
re Kristin H. (1996) 46 Cal.App.4th 1635, 1654 (Kristin H.).) The court must
also determine whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home and state the facts on
which its decision to remove the child is based. (§ 361, subd. (e); see In re
D.P. (2020) 44 Cal.App.5th 1058, 1067.) To assist the juvenile court, the
Agency must describe “the reasonable efforts [it] made to prevent or
eliminate removal.” (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).)
“A removal order is proper if based on proof of parental inability to
provide proper care for the child and proof of potential detriment to the child
if he or she remains with the parent.” (In re N.M., supra, 197 Cal.App.4th at
5 As relevant here, the juvenile court may remove a child from his or her
parent if the court finds by clear and convincing evidence that “[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. . . .” (§ 361, subd. (c)(1).)
12
p. 169.) In determining whether removal from a parent’s home is necessary,
the court may consider the parent’s past conduct as well as current
circumstances. (Cole C., supra, 174 Cal.App.4th at p. 917; In re John M.
(2012) 212 Cal.App.4th 1117, 1126 (John M.).) An order removing a
dependent child from his or her home does not require proof that the parent
is dangerous or has actually harmed the child. (Cole C., at p. 917.) The
purpose of removing a child from his or her parent’s home is to protect the
child from future possible harm. (Ibid.)
C
Substantial evidence standard of review. On appeal, we review the
juvenile court’s jurisdictional and dispositional findings and orders for
substantial evidence to support them. (Cynthia D., supra, 5 Cal.4th at p. 249;
In re Isabella F. (2014) 226 Cal.App.4th 128, 137; In re N.M., supra, 197
Cal.App.4th at pp. 168, 170; Cole C., supra, 174 Cal.App.4th at pp. 916-918.)
The burden of proof for jurisdictional findings is preponderance of the
evidence, whereas for dispositional findings the burden of proof is by clear
and convincing evidence. (Cynthia D., at p. 248.) Accordingly, in applying
the substantial evidence standard in reviewing the juvenile court’s
dispositional findings and order, we must bear in mind the heightened
requirement of proof by clear and convincing evidence. (In re V.L. (2020) 54
Cal.App.5th 147, 154-155 (In re V.L.); Kristin H., supra, 46 Cal.App.4th at
p. 1654.) Because section 361, subdivision (c) requires proof by clear and
convincing evidence, we must determine “whether the record as a whole
contains substantial evidence from which a reasonable fact finder could have
found it highly probable that the fact was true.” (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 995-996; see also In re V.L., at pp. 154-155 [standard of
review described in Conservatorship of O.B. applies to removal findings under
13
§ 361, subd. (c)].) Likewise, the substantial evidence standard of review
applies to a finding under section 361, subdivision (e) that reasonable efforts
were made to prevent or eliminate the need to remove a child from his or her
parent. (In re A.G. (2017) 12 Cal.App.5th 994, 1001.) Substantial evidence is
evidence that is reasonable, credible, and of solid value. (In re Ricardo L.
(2003) 109 Cal.App.4th 552, 564.) In applying this standard, we “ ‘must view
the record in the light most favorable to the prevailing party below and give
due 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., at p. 996; see In re
V.L., at p. 154.) We do not consider the credibility of the witnesses or
reweigh the evidence. (In re Lana S. (2012) 207 Cal.App.4th 94, 103 (Lana
S.); Conservatorship of O.B., at p. 1008.) We must affirm an order that is
supported by substantial evidence even if other evidence, or other inferences
from the evidence, would have supported a contrary finding. (In re Manuel
G. (1997) 16 Cal.4th 805, 823; R.M. v. T.A. (2015) 233 Cal.App.4th 760, 780
(R.M.); In re N.M., supra, 19 Cal.App.4th at p. 68.) On appeal, the parent
challenging the juvenile court’s order has the burden to show there is
insufficient evidence to support the court’s decision. (Lana S., at p. 103; In re
N.M., at p. 168.)
II
Substantial Evidence Supports Court’s Dispositional Order
Mother contends that substantial evidence does not support the court’s
dispositional order placing S.L. in Father’s care because there was
insufficient evidence to support its finding that S.L. would not be at
substantial risk of harm if returned to Father. We disagree.
14
Based on our review of the record, there is substantial evidence to
support the court’s finding that S.L. would not be at substantial risk of harm
if she were returned to Father. In particular, in finding that clear and
convincing evidence did not show S.L. should be removed from Father, the
court stated that Father had “remained concerned, remained proactive,
remained offering to do anything that he could do to be able to ensure that he
could support [S.L.] in maintaining her health and safety.” Contrary to
Mother’s assertion, the court could reasonably infer from the evidence that
Father was not, in fact, the perpetrator of the physical abuse of S.L. Father
testified at the contested hearing that he discovered S.L.’s bruising while
bathing her for the first time in December. He had not previously suspected
any abuse. He stated that he wished he had not returned S.L. to Mother
after discovering the bruising, but did so to comply with the family court
order. He also testified how he discussed S.L.’s bruising with family
members and friends, then informed Mother about it, and ultimately
reported the suspected abuse of S.L. to the Agency. He also then called and
made a doctor’s appointment for S.L., which appointment Mother postponed
until the following day. In addition, the court could reasonably find that
Father’s present circumstances showed that he was a loving, concerned
parent who had cooperated with the Agency, enrolled in voluntary services,
and had positive and consistent visits with S.L. Based on Father’s testimony
and the Agency’s reports, the court could reasonably find that Father was
credible and not the perpetrator of the physical abuse of S.L., but was instead
a concerned, proactive parent who was attempting to protect his daughter.
Furthermore, the court could have reasonably found that Father’s
history of domestic violence, his criminal record, and/or his substance abuse
problems did not prove either that he was the perpetrator of S.L.’s physical
15
abuse or that S.L. would otherwise be at substantial risk of harm if returned
to him. In particular, the court could reasonably place more weight on
Father’s present circumstances in attempting to protect S.L. than on his past
incidents of domestic violence or problems with substance abuse.
In arguing that there is insufficient evidence to support the court’s
finding that S.L. would not be at substantial risk of harm if returned to
Father, Mother cites only evidence and inferences therefrom that would have
supported a contrary finding by the court and, in effect, suggests that we
reweigh the evidence admitted at the contested hearing.6 By so arguing,
Mother misconstrues and/or misapplies the substantial evidence standard of
review. As discussed ante, in applying the substantial evidence standard of
review, we view the evidence in the light most favorable to the court’s
finding, make all reasonable inferences from the evidence, and resolve all
conflicts in support of the finding. (Conservatorship of O.B., supra, 9 Cal.5th
at p. 996; In re V.L., supra, 54 Cal.App.5th at p. 154.) We do not consider the
credibility of the witnesses or reweigh the evidence. (Lana S., supra, 207
Cal.App.4th at p. 103; Conservatorship of O.B., at p. 1008.) Accordingly, we
must affirm an order that is supported by substantial evidence even if other
evidence, or other inferences from the evidence, would have supported a
contrary finding. (R.M., supra, 233 Cal.App.4th at p. 780; In re N.M., supra,
197 Cal.App.4th at p. 168.) By citing only evidence and inferences therefrom
that would have supported a contrary finding by the juvenile court, Mother
has not carried her burden on appeal to show that substantial evidence does
6 Mother argues in her reply brief that she does not suggest that we
reweigh the evidence. However, based on our reading of her opening brief,
her citation solely to evidence and inferences therefrom that would have
supported a contrary finding by the court suggests to us that she implicitly
asks us to reweigh the evidence.
16
not support the court’s dispositional finding that clear and convincing
evidence did not show S.L. would be at substantial risk if returned to
Father.7
III
No Abuse of Discretion by Excluding Mother’s Evidence
Mother contends the juvenile court prejudicially erred by excluding
certain exhibits that she offered in evidence at the contested jurisdictional
and dispositional hearing.
A
Legal principles. The admissibility of evidence is to be decided by the
trial court. (Evid. Code, § 310.) “No evidence is admissible except relevant
evidence.” (Evid. Code, § 350.) “Except as otherwise provided by statute, all
relevant evidence is admissible.” (Evid. Code, § 351.) “Relevant evidence”
means evidence that has “any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.)
“In ruling on the admissibility of evidence, the trial court is vested with
broad discretion.” (Cole C., supra, 174 Cal.App.4th at p. 911.) The court’s
evidentiary ruling will be reversed only if it clearly has abused its discretion.
(Ibid.) The appropriate test for abuse of discretion is whether the court has
exceeded the bounds of reason. (Ibid.) A reviewing court will not disturb a
discretionary decision of the trial court unless it has exceeded the limits of
7 Because we conclude that there is substantial evidence to support the
court’s finding that S.L. would not be at substantial risk if returned to
Father, we need not address, and Mother has not substantively argued,
whether there is substantial evidence to support an additional or alternative
finding by the court that there were reasonable means to protect S.L. without
removal from Father. (§ 361, subd. (c)(1).)
17
legal discretion by making an arbitrary, capricious, or patently absurd
determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).)
It is the appellant’s burden on appeal to affirmatively establish the court
abused its discretion. (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
Furthermore, even if the court has abused its discretion by improperly
excluding evidence, that error is not prejudicial, or reversible, error unless it
is reasonably probable a result more favorable to the appellant would have
been reached absent the error. (Tudor Ranches, Inc. v. State Comp. Ins.
Fund (1998) 65 Cal.App.4th 1422, 1432 (Tudor Ranches, Inc.); People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).)
B
Mother’s argument. Mother asserts the court prejudicially abused its
discretion by excluding her Exhibits 2, 3, 6, 7, 8, 9, 10, and 11. In particular,
she argues the court erred by excluding: (1) Exhibits 2 and 3, which were
transcripts of September 2018 video recordings purportedly showing that
Father hit Mother in the face; (2) Exhibit 6, which was a text message from a
police detective to Mother informing her of a domestic violence case number;
(3) Exhibits 7 and 8, which were photographs purportedly showing injuries to
Mother and her minor son; (4) Exhibit 9, which was a February 2019 TRO
issued against Father and a notice of hearing on Mother’s request for a
permanent restraining order; (5) Exhibit 10, which purportedly was a March
2019 family court services memo discussing Mother’s allegations that Father
had a history of violence and substance abuse; and (6) Exhibit 11, which was
Mother’s April 2020 request for a TRO against Father. Mother argues the
court abused its discretion by only considering the circumstances underlying
the petition’s allegations in ruling that the excluded exhibits were too remote
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in time and irrelevant to the contested issues at the jurisdictional and
dispositional hearing.
C
No abuse of discretion in excluding exhibits. In ruling on the
admissibility of Exhibits 2 and 3, the court stated: “[T]he court is looking at
the circumstances that led to the allegations in the petition in this case; . . . .
And for those reasons, [the] court finds [Exhibits] 2 and 3 too remote in time
and not relevant; however, [the court] will take testimony from [Mother] with
regard to any type of impeachment given any statements or evidence alleging
[Father] and his position on violence. And then, of course, [Mother’s]
availability to testify and impeach with regard to her personal experience as
it relates to allegations in this case. And that’s both for [jurisdiction] and
[disposition].” In ruling on the admissibility of Exhibits 6, 7, and 8, the court
stated it “will note again, those [exhibits] do relate to an incident involving
alleged violence. [¶] Again, . . . [the] court will rule and exclude those as too
remote in time and also not relevant. . . .” In ruling on the admissibility of
Exhibits 9, 10, and 11, the court stated: “[A]gain, they are related to alleged
incidents of violence, but again, that would be specific only to the family law
case and other previous incidents prior to the circumstances surrounding the
allegations of this case, notably, the visitation that was scheduled and being
followed on or about the time the petition was filed.” Accordingly, the court
excluded those eight exhibits as irrelevant to the contested issues, subject to
their admissibility as impeachment evidence if Father were to present
evidence of his nonviolence. Later during the trial, the court again rejected
Mother’s proffer of Exhibits 2 and 3, finding them irrelevant and stating that
it had already heard the testimony of Mother and Father regarding the
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purported domestic violence and that purported domestic violence did not
involve inflicted abuse of S.L. as in this case.
In ruling on the relevance of the eight exhibits, we presume the
juvenile court was aware that in determining the dispositional issue of
whether removal from Father’s home was necessary, it could consider
Father’s past conduct as well as current circumstances. (Cole C., supra, 174
Cal.App.4th at p. 917; John M., supra, 212 Cal.App.4th at p. 1126.) Contrary
to Mother’s assertion, the record does not affirmatively show that the court
applied an improper legal standard in exercising its discretion to exclude her
exhibits as irrelevant. (Cf. In re Y.M. (2012) 207 Cal.App.4th 892, 918.)
Here, despite the arguable relevance of Father’s past conduct in general, the
court could nevertheless reasonably conclude the eight exhibits were
irrelevant to, among other things, the dispositional issue of whether S.L.’s
removal from Father was necessary to protect her from a substantial risk of
harm. First, as the court noted, all of the exhibits were remote in time,
relating to incidents or documents prior to the alleged physical abuse of S.L.
in December 2020 and the Agency’s subsequent filing of the petition.
Furthermore, the court could reasonably conclude the excluded exhibits were
not relevant because they did not tend to prove a main issue in the
dispositional hearing, as opposed to merely an irrelevant collateral issue or
matter. (See, e.g., Winfred D. v. Michelin North America, Inc. (2008) 165
Cal.App.4th 1011, 1032.) Here, the court could reasonably have concluded
that because Mother and Father had ended their relationship, any evidence
of their past domestic violence in S.L.’s presence was irrelevant regarding her
placement with Father due to the unlikelihood of such future domestic
violence. Lacking probative value on a contested dispositional issue, the
eight exhibits were reasonably excluded by the court. Even if another court
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may have ruled otherwise and found the exhibits relevant and admissible,
that does not prove the court here exceeded the bounds of reason and abused
its discretion by making an arbitrary, capricious, or patently absurd
determination by excluding those exhibits are irrelevant. (Stephanie M.,
supra, 7 Cal.4th at p. 318; Cole C., supra, 174 Cal.App.4th at p. 911.)
D
No prejudicial error. In any event, assuming arguendo the court
abused its discretion by excluding some or all of the eight exhibits, we
nevertheless conclude Mother has not carried her burden on appeal to show
that the assumed error was prejudicial (i.e., that it is reasonably probable
Mother would have obtained a more favorable result had the court admitted
those exhibits). (Tudor Ranches, Inc., supra, 65 Cal.App.4th at p. 1432;
Watson, supra, 46 Cal.2d at p. 836.) In a conclusory manner, Mother simply
argues in her opening brief: “[T]he exclusion of those exhibits was prejudicial
to [her] because it resulted [sic] led to [S.L.’s] placement with [Father].
[Citation.] Based on that placement, [Father] could seek to terminate
jurisdiction over [S.L.] with exit orders awarding him full physical and legal
custody of [her], which would prejudice Mother’s right to care for and make
decisions regarding her child. [Citation.]” By so arguing, Mother
misconstrues and/or misapplies the standard for prejudicial error. 8 She does
not argue, much less show, that it is reasonably probable the juvenile court
would not have placed S.L. with Father if it had admitted the eight exhibits
that she argues were erroneously excluded. Furthermore, based on our
review of record, we conclude that because the court heard testimony of
8 In her reply brief, Mother restated her opening brief argument
regarding prejudice and, in so doing, continued to misconstrue and/or
misapply the correct standard for prejudicial error.
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Mother, and admitted other evidence, showing that Father had a history of
domestic violence and substance abuse, the excluded evidence apparently
would have been largely duplicative and/or cumulative of other evidence
admitted at the contested hearing. Therefore, even if the court had admitted
the eight exhibits, it does not appear reasonably probable that the court
would have found S.L. would be at substantial risk if returned to Father and
therefore ordered that she be removed from his care. (Tudor Ranches, Inc., at
p. 1432; Watson, at p. 836.) Accordingly, we reject Mother’s contention that
the court prejudicially erred by excluding Exhibits 2, 3, 6, 7, 8, 9, 10, and 11.
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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