In re E.D. ( 2018 )

Filed 3/1/18; Certified for Publication 3/22/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re E.D., a Person Coming Under B284657
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK21342)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
PAUL D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Commissioner. Affirmed
in part and reversed in part.
Jacques Alexander Love, under appointment by the
Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Brian Mahler, Deputy
County Counsel, for Plaintiff and Respondent.
——————————
Paul D. (father) appeals from the juvenile court’s order
of dependency jurisdiction over E.D. (child), age two, under
Welfare and Institutions Code section 300, subdivision (b)(1)
(failure to protect),1 on the ground that the order was not
supported by substantial evidence. As the evidence was
insufficient to show a substantial risk of serious physical
harm or illness to the child, we reverse the juvenile court’s
order as to father only.
BACKGROUND
I. The domestic violence incident
On May 12, 2015, the Los Angeles County Department
of Children and Family Services (DCFS) received a referral
alleging emotional abuse by father and general neglect by
mother (who is not a party to this appeal). The referral
alleged that father struck mother while she was holding
child. At the time of the incident, child was only two months
1All further statutory references are to the Welfare
and Institutions Code unless otherwise indicated.
2
old, mother was 17 years old, and father was 21 years old.
Mother indicated to the police at the time of the incident
that father had never threatened or used a weapon against
her and had never threatened to kill her, and that she was
not in fear of her safety. Following the incident, mother
obtained a restraining order against father on behalf of
herself and child; mother ended her relationship with father;
and DCFS deemed the referral inconclusive on those
grounds. The restraining order provided, inter alia, that
father was to have “no personal, electronic telephonic, or
written contact” with mother or child, except for court-
ordered visitation and the safe exchange of child.
II. Mother’s arrest
On January 6, 2017, mother and child were passengers
in a vehicle stopped by the police for a traffic violation.
During the stop, the police discovered 11 grams of
methamphetamine (meth) and two grams of marijuana on
mother. Mother disclosed to the police that she frequently
used meth and had last used the drug three days earlier.
Mother also stated she was on her way to the paternal
grandmother’s home, where father lived, because he cared
for child on weekends, while she cared for child on weekdays.
Police arrested mother for felony possession of meth for sale.
This incident resulted in a child welfare referral to DCFS.
III. DCFS’s prepetition investigation and petition
A. THE PREPETITION INVESTIGATION
On January 11, 2017, a DCFS social worker went to
the paternal grandmother’s home, where she encountered
3
both father and mother. Father informed the social worker
that the paternal grandmother was away on errands and
that he was taking care of child while mother was asleep in
another room. The social worker observed that child was
“appropriately dressed” and “running around playing.” The
social worker interviewed mother and father individually.
Mother told the social worker that she began using
meth approximately 18 months earlier.2 She typically used
meth when child was on weekend visits with father, though
she admitted also using meth while child was in her care.
She claimed father did not know she still used meth because
they had “little contact.” Mother also stated that “she went
to court . . . to get the [restraining] order lifted but the judge
would not allow it until [father] completed a court ordered
domestic violence class.”
Father admitted to the social worker that he had
repeatedly violated the restraining order based on his
continuing physical contact with mother and child. He
claimed the paternal grandmother took care of child during
weekend visits, though he acknowledged having contact with
child because he also lived in the home. Father additionally
stated he had enrolled in a 52-week domestic violence
batterer’s program following the domestic violence incident
and provided to the social worker a document that appeared
Approximately two weeks later, in late January 2017,
2
mother reported to a DCFS consultant that she began using
methamphetamine four years earlier.
4
to be a sign-in sheet indicating he had started the program
in February 2016 and had attended 38 sessions since that
time.
That same day, after concluding her interviews of
mother and father, the social worker made a temporary
safety plan that was agreed upon by the parents. Among
other things, the plan provided that child would be
supervised by either the paternal grandmother or the
maternal grandfather at all times and that the parents were
prohibited from having any unsupervised contact with child.
The social worker subsequently investigated mother
and father’s criminal histories. Mother had a misdemeanor
conviction for reckless driving in 2016 and arrests for driving
under the influence of drugs in 2016, and possession of meth
for sale in 2017. Father had a felony conviction for assault
by means likely to produce great bodily injury in 2013, and
misdemeanor convictions for possession of meth in 2014 and
corporal injury on a spouse or cohabitant in 2015, along with
several arrests in 2013-2014 for drug- and violence-related
crimes.
B. THE PETITION
On February 6, 2017, DCFS filed a petition on behalf of
child under section 300, subdivisions (a) and (b). The
petition generally alleged child was at risk of physical harm
based on father’s actions during the domestic violence
incident, father’s convictions for violent crimes, and father’s
violation of the restraining order and mother’s history of
substance abuse and her possession of meth while in a
5
vehicle with child. At the detention hearing held that same
day, the juvenile court found father to be child’s presumed
father, detained child from both parents, granted the
parents monitored visits, ordered father and mother to
submit to drug testing, and further ordered mother to enroll
in substance abuse and parenting programs.
IV. The jurisdiction and disposition hearing
On April 28, 2017, the juvenile court held a combined
jurisdiction and disposition hearing. At the hearing, the
court admitted into evidence three documents: the DCFS’s
prepetition detention report and two post-petition reports—a
jurisdiction and disposition report, dated April 4, 2017; and a
last minute information report, dated April 28, 2017.
The jurisdiction and disposition report, inter alia,
stated that both father and mother confirmed that father
had struck mother once—a single punch or slap to the
forehead—which led to the restraining order. The
jurisdiction and disposition report also stated that child
“appears to be developing in a timely manner and reaching
her developmental milestones in all areas except speech.” A
DCFS assessment of child found, inter alia, that father was
affectionate and protective of child and that child enjoyed
interactions with father.
The last minute information report advised the
juvenile court that father had informed the social worker
that he had completed his domestic violence batterer's
program and had enrolled in individual counseling. In
addition, the report stated that father’s probation officer had
6
told DCFS’s representative that father was “in compliance
and reports in on a regular basis” and that the probation
officer “does not have any concerns [about father] at this
time.”
At the hearing, the juvenile court dismissed the count
brought pursuant to section 300, subdivision (a) [child had
suffered or was at risk of suffering nonaccidental harm] and
sustained the counts brought pursuant to section 300,
subdivision (b) [child had suffered or was at risk of suffering
harm]. The court found jurisdiction over the father for two
principal reasons: First, despite the existence of the
criminal protective order, father continued to have
“significant physical contact” with mother and child. Second,
the court believed father to be less than truthful.
Specifically, the juvenile court found that neither father’s
representations to the police about his 2013 assault
conviction3 nor his denial of any knowledge about mother’s
drug use were credible.
3 Father told DCFS’s social worker that he was
convicted “because he was riding in a car with his friend and
his friend was carrying a weapon” and was advised by his
court-appointed attorney to plead guilty “so that he could get
out of jail more quickly.” The police report for the incident,
however, tells a somewhat different story. According to the
police report, the victims, who identified father in a
photographic lineup, stated that father approached them
near an alley, displayed a handgun, and then called out a
gang’s name, which caused the victims to become fearful,
flee the scene, and call the police. In his voluntary
7
With regard to disposition, the juvenile court found
that “by clear and convincing evidence that remaining in the
home of parents would pose substantial danger to the child’s
physical health, safety, and emotional well-being.”
Accordingly, the court declared child a dependent of the
court, removed child from both parents’ custody, but allowed
monitored visitation by parents and ordered DCFS to
provide family reunification services.
As for father’s reunification plan, the court ordered
father to (a) submit to six consecutive drug tests with the
further provision that if any of those tests were missed or
“dirty,” father would be required to complete a full drug
rehabilitation program and (b) complete a domestic violence
program, a parenting program, and individual counseling.
Father’s counsel objected unsuccessfully to the drug testing
requirement on the ground that “what’s been sustained is
mother’s drug use, not father’s drug use.” Father timely
appealed.
DISCUSSION
I. Father’s appeal is “justiciable”
Father contends that the evidence is insufficient to
support the court’s jurisdictional finding as to him. DCFS
argues, however, that, because the jurisdictional findings as
to mother are uncontested, we would not reverse the juvenile
statements to the police, father denied all involvement,
stating, as he did later to the social worker, that he had been
picked up by his friends in their car shortly before the police
pulled them over.
8
court’s jurisdictional finding even if father’s arguments were
accepted. (See In re I.A. (2011) 201 Cal. App. 4th 1484, 1489.)
DCFS consequently asks us to dismiss this appeal for lack of
a justiciable issue.
As a general rule, “ ‘a minor is a dependent if the
actions of either parent bring [him] within one of the
statutory definitions.’ ” (In re X.S. (2010) 190 Cal. App. 4th
1154, 1161.) However, California courts have held that
discretion may be exercised to reach the merits of the other
parent’s jurisdictional challenge “in three situations: (1) the
jurisdictional finding serves as the basis for dispositional
orders that are also challenged on appeal; (2) the findings
could be prejudicial to the appellant or could impact the
current or any future dependency proceedings; and (3) the
finding could have consequences for the appellant beyond
jurisdiction.” (In re A.R. (2014) 228 Cal. App. 4th 1146, 1150;
accord In re J.C. (2014) 233 Cal. App. 4th 1, 3–4; In re
Quentin H. (2014) 230 Cal. App. 4th 608, 613 (Quentin H.); In
re Christopher M. (2014) 228 Cal. App. 4th 1310, 1316–1317
(Christopher M.); In re Drake M. (2012) 211 Cal. App. 4th 754,
762–763 (Drake M.).)
Father contends the last two factors apply here, and
urges us to consider the merits of his appeal. In Quentin H.,
supra, 230 Cal. App. 4th 608, Christopher M., supra, 228
Cal. App. 4th 1310, and Drake M., supra, 211 Cal. App. 4th
754, the reviewing courts each found that the distinction
between being found an “offending” parent versus a
“nonoffending” parent “may have far reaching implications
9
with respect to future dependency proceedings . . . and
father’s parental rights.” (Drake M., at p. 763; Quentin H.,
at p. 613; Christopher M., at p. 1317; see § 361.2, subd. (a)
[governing placement of a dependent child with a
noncustodial parent]4.)
Since father’s status as either an offending or
nonoffending parent may have far-reaching consequences in
future dependency proceedings, we exercise our discretion to
consider father’s jurisdictional challenge.
II. Standard of review
We review the juvenile court’s jurisdictional findings
for substantial evidence. (In re John M. (2013) 217
Cal. App. 4th 410, 418 (John M.).) “The term ‘substantial
evidence’ means such relevant evidence as a reasonable
mind would accept as adequate to support a conclusion; it is
evidence which is reasonable in nature, credible, and of solid
value.” (In re J.K. (2009) 174 Cal. App. 4th 1426, 1433.)
Although substantial evidence may consist of inferences, the
inferences must be logical, reasonable and supported by
4 “When a court orders removal of a child pursuant to
Section 361, the court shall first determine whether there is
a parent of the child, with whom the child was not residing
at the time that the events or conditions arose that brought
the child within the provisions of Section 300, who desires to
assume custody of the child. If that parent requests custody,
the court shall place the child with the parent unless it finds
that placement with that parent would be detrimental to the
safety, protection, or physical or emotional well-being of the
child.” (§ 361.2, subd. (a).)
10
evidence; the inferences cannot be the product of speculation
or conjecture. (In re Savannah M. (2005) 131 Cal. App. 4th
1387, 1393–1394.)
We review the evidence in the light most favorable to
the juvenile court’s findings and draw all reasonable
inferences in support of those findings. (In re Heather A.
(1996) 52 Cal. App. 4th 183, 193.) We may not “consider
whether there is evidence from which the dependency court
could have drawn a different conclusion,” but are limited to
determining “whether there is substantial evidence to
support the conclusion that the court did draw.” (In re
Noe F. (2013) 213 Cal. App. 4th 358, 366.) The juvenile
court’s determination “will not be disturbed unless it exceeds
the bounds of reason.” (In re Ricardo L. (2003) 109
Cal. App. 4th 552, 564.)
III. The jurisdictional order was not supported by
substantial evidence of a substantial risk of serious
physical harm or illness
A. GUIDING PRINCIPLES
Section 300, subdivision (b)(1) provides for dependency
jurisdiction where “[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.” (Italics added.) “The child shall continue to be a
dependent child pursuant to this subdivision only so long as
is necessary to protect the child from risk of suffering serious
physical harm or illness.” (Ibid.)
11
“ ‘ “A jurisdictional finding under section 300,
subdivision (b) requires: ‘ “(1) neglectful conduct by the
parent in one of the specified forms; (2) causation; and
(3) ‘serious physical harm or illness’ to the child, or a
‘substantial risk’ of such harm or illness.” [Citation.]’
[Citations.] The third element ‘effectively requires a
showing that at the time of the jurisdictional hearing the
child is at substantial risk of serious physical harm in the
future (e.g., evidence showing a substantial risk that past
physical harm will reoccur).’ ” ’ ” (In re Jesus M. (2015) 235
Cal. App. 4th 104, 111, italics added.)
Section 300, subdivision (b), in other words, requires a
showing of “concrete harm or risk of physical harm to the
child.” (In re Rocco M. (1991) 1 Cal. App. 4th 814, 821, italics
added.) “As appellate courts have repeatedly stressed,
‘ “[s]ubdivision (b) means what it says. Before courts and
agencies can exert jurisdiction under section 300,
subdivision (b), there must be evidence indicating that the
child is exposed to a substantial risk of serious physical harm
or illness.” ’ ” (In re Jesus M., supra, 235 Cal.App.4th at
p. 111.)
“ ‘In evaluating risk based upon a single episode of
endangering conduct, a juvenile court should consider the
nature of the conduct and all surrounding circumstances. It
should also consider the present circumstances, which might
include, among other things, evidence of the parent’s current
understanding of and attitude toward the past conduct that
endangered a child, or participation in educational
12
programs, or other steps taken, by the parent to address the
problematic conduct in the interim, and probationary
support and supervision already being provided through the
criminal courts that would help a parent avoid a recurrence
of such an incident. The nature and circumstances of a
single incident of harmful or potentially harmful conduct
may be sufficient, in a particular case, to establish current
risk depending upon present circumstances.’ [Citation.] We
must have a basis to conclude there is a substantial risk the
parent’s endangering behavior will recur.” (John M., supra,
217 Cal.App.4th at p. 418–419.)
B. THE JUVENILE COURT’S JURISDICTIONAL FINDINGS
AS TO FATHER WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
DCFS argues that this case is analogous to John M.,
supra, 217 Cal. App. 4th 410. For his part, father contends
that In re Daisy H. (2011) 192 Cal. App. 4th 713 (Daisy H.)
controls. Although neither case is directly on point, father
has the better argument.
In John M., supra, 217 Cal. App. 4th 410, this court
upheld a juvenile court finding of jurisdiction under section
300, subdivision (b) based upon domestic violence, even
though the child had not yet been injured. The parents had
a history of verbal altercations and hitting each other. The
immediate event leading to dependency court jurisdiction
was an incident in which the father repeatedly hit the
mother while they were driving home from a party and then
continued to strike her when they arrived home. (Id. at
pp. 416–419.) The father was prosecuted and received
13
prison time for the incident. (Ibid.) This court held that “the
parents’ history of domestic violence evidences an ongoing
pattern that, while not yet causing harm to John, presented
a very real risk to John’s physical and emotional health.
Both parents hit each other; verbal altercations were
frequent; and father engaged in reckless driving with mother
in the car.” (Id. at p. 419.) John M. is inapposite because, on
the record before us, there is no similar history of physical
abuse and verbal altercations between child’s parents.
On balance, this case is more like Daisy H., supra, 192
Cal. App. 4th 713. In Daisy H., the mother claimed the father
choked and pulled her hair, but the incident happened “at
least two, and probably seven, years” before the dependency
petition was filed. (Id. at p. 717.) There was no evidence the
alleged hair-pulling and choking occurred in the children’s
presence, the children denied ever seeing domestic abuse
between their parents, and they stated they were not afraid
of their father. (Ibid.) On these facts, the Daisy H. court
found the evidence insufficient to support a finding that the
acts of domestic violence placed the children at a substantial
risk of physical harm, stating: “Physical violence between a
child’s parents may support the exercise of jurisdiction under
section 300, subdivision (b) but only if there is evidence that
the violence is ongoing or likely to continue and that it
directly harmed the child physically or placed the child at
risk of physical harm.” (Ibid., italics added.)
Here, as in Daisy H., supra, 192 Cal. App. 4th 713, there
is no evidence that at the time of the jurisdictional hearing
14
that the domestic violence between mother and father was
on-going or likely to continue. There was, for example, no
evidence of any repeat behavior by father since the 2015
incident or even any evidence of escalating arguments, such
as the one between mother and father that gave rise to the
domestic violence incident in 2015.5 In fact, there was only
the one incident of domestic violence and, as in Daisy H., it
was relatively remote in time from the jurisdictional and
dispositional hearing. Moreover, the evidence showed that
between the time of the lone domestic violence incident and
the hearing, father had acknowledged his misconduct and
had taken concrete steps to correct his behavior going
forward. He had completed his domestic violence batterer’s
program and had enrolled in individual counseling. His
probation officer found him to be acting in a responsible
manner and had no concerns that father would relapse at
the time of the hearing. In addition, the DCFS social worker
found father “loving and nurturing to the child.”
5 According to father, the 2015 domestic violence
incident arose over a disagreement between the parents on
whether mother should cut child’s fingernails. The
disagreement escalated to mother screaming. When
paternal grandmother tried to intervene, mother called the
paternal grandmother a “bitch,” which, in turn, prompted
father to strike mother once on the forehead. Mother could
not recall exactly what gave rise to the incident, only that
father “slapped” or “punched” her once on the forehead.
15
In short, the evidence was insufficient to support the
juvenile court’s finding of dependency jurisdiction over the
child under section 300, subdivision (b) as to father, because
there was no evidence of a substantial risk of serious
physical harm or illness to the child from father. Without
proper jurisdiction, the juvenile court had no authority to
issue a dispositional order as to father. (In re R.M. (2009)
175 Cal. App. 4th 986, 991.)
DISPOSITION
The jurisdiction and disposition order is reversed as to
father. In all other respects, the order is affirmed.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.*
* Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
16
Filed 3/22/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re E.D., a Person Coming Under B284657
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. DK21342)
LOS ANGELES COUNTY CERTIFICATION AND
DEPARTMENT OF CHILDREN ORDER FOR PUBLICATION
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
PAUL D.,
Defendant and Appellant.
The opinion in the above-entitled matter filed March 1, 2018, was not
certified for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
ROTHSCHILD, P. J. JOHNSON, J. BENDIX, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.