In re J.N. CA4/2 ( 2022 )

Filed 8/26/22 In re J.N. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.N. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078412
Plaintiff and Respondent, (Super.Ct.Nos. J289255-60)
v. OPINION
J.N.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant.
1
Tom Bunton, County Counsel and Svetlana Kauper, Deputy County Counsel, for
Plaintiff and Respondent.
Father J.N., Sr., appeals a jurisdictional and dispositional judgment declaring his
six children to be dependents due to his physical abuse, substance abuse and failure to
protect.1 Father was captured on a cell phone video beating his then 7-year old son, C.N.,
by kicking, hitting, and striking the child in the head with a steel toed boot, resulting in
dependency proceedings instituted by the San Bernardino County Children and Family
Services Agency (CFS). An investigation revealed that father had physically abused
seven of the eight children in the household, and that mother had corporally punished two
of them, culminating in allegations the children came within Welfare and Institutions
Code,2 section 300, subdivisions (a), (b), and (j).3 At the hearing on the petition, father
objected generally, but specifically argued against the true findings on an allegation he
abused substances. The court declared the children dependents, removed custody from
the parents, and ordered Family Reunification Services. Father appeals.
1Mother, M.G., did not appeal. We will refer to her where necessary to provide a
complete history.
2 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
3 Of the eight children in the household, the two older children were not
biologically related to father, and this appeal does not include a record relating to their
status as dependents, other than information included in social services agency reports.
Because the two older children had different fathers, who did not respond to the filing of
the petition affecting their children, there was an additional allegation pursuant to section
300, subdivision (g) (parent failing to make provision for support of child), as to those
children.
2
On appeal, father challenges the sufficiency of the evidence to support
jurisdictional findings (1) under section 300, subdivision (a), as to three of the children,
and (2) the jurisdictional finding of substance abuse; as well as (3) the d ispositional
judgment removing custody. In a supplemental opening brief, father argues the juvenile
court erred by not designating him as presumed father as to the two older children. We
affirm.
BACKGROUND
On May 19, 2021, J.N. Sr., father, repeatedly hit and kicked son C.N, then 7 years
of age, and threw a steel toed boot at the child, causing a bump and small laceration on
the child’s head. Mother’s cousin, M.R., who was present to help with child care,
recorded a video of a portion of the beating on her cell phone and sent the video to her
sister, who called police. Mother, who was working, was contacted and returned to the
home, where father was arrested for corporal injury to a child and (Pen. Code, § 273d,
subd. (a)) and mother was arrested for child endangerment. (Pen. Code, § 273a, subd.
(b).)
There were eight children in the household, but of those children, J.N., Sr., was
father of the six younger children, ranging in age from 4 months to 8 years in age. 4
Investigation revealed that every one of the children had been physically abused by
father, with the lone exception of the child L.A-G., whom father favored. In addition to
striking them with his hands, feet, and shoes, he would use a belt, leaving marks on the
Two older children were mother’s daughters from prior relationships, A.S., age
4
13, and L.A-G., age 9.
3
children and called them derogatory names. He once struck A.S. with a broom, on
another occasion he hit her on the thigh with a water hose, and has thrown things at her.
C.N. also described an incident in which father injured A.S.’s hand, breaking her pinky
finger, for which no medical attention was sought.5
In addition, there had been incidents of domestic violence, which left bruises on
mother. The most serious incident occurred while mother was pregnant with the twins
(the youngest children),6 in which father pushed her onto the ground, pulled her hair and
hit her all over her body. The children all indicated mother tried to intervene when father
abused them. However, he would get even angrier when she tried to protect them,
making her fearful of him.
Although mother’s cousin and none of the children had actually seen father use
drugs, the children had heard mother discuss his drug use, L.A-G had seen him receiving
a small, clear bag with “white things in it,” and mother’s cousin indicated father would
occasionally take the children with him to visit a friend, where he would leave the
children in the car and return in 30 minutes behaving strangely. The family suspected
father was doing drugs because his personality and behavior changed radically beginning
three years previously, which coincided with the domestic violence episodes beginning,
and one of father’s friends confirmed he was using methamphetamine.
5After CFS intervened, A.S. was examined by a doctor who reported right hand
asymmetry at the MCP joint of the little finger, described as “R little finger clinodactyly.”
6 Because the twins were four months of age at the time of the current incident,
this episode of domestic violence likely occurred a few months before their birth,
depending on whether they were born at full term.
4
On May 21, 2021, CFS filed an original dependency petition alleging physical
abuse (§ 300, subd. (a)), risk of abuse (§ 300, subds. (a) and (b)(1)), failure to supervise
or protect (§ 300, subd. (b)(1)), leaving the children without making provisions for their
support (§ 300, subd. (g)), and abuse of siblings (§ 300, subd. (j)). Respecting the
allegations under section 300, subdivision (b)(1), the petition alleged that the abuse of
certain of the children places all the children at risk, that mother knew or should have
known of the physical abuse by father but failed to protect the children, that father has a
substance abuse problem with methamphetamine and/or cocaine that placed the children
at risk, that mother knew of father’s substance use but failed to protect the children, and
that the parents engaged in domestic violence, posing a risk to the children.
At the detention hearing, the children were removed and temporarily detained
following the parents’ denial of the petition. Father, who appeared through counsel due
to his custodial status and the Covid-19 restrictions in place, was ordered to submit to a
drug test. The court also authorized forensic interviews of the verbal children by the
Children’s Assessment Center (CAC).
The jurisdiction report provided information obtained during an interview with
mother. The social worker indicated in the report that mother has had four significant
relationships but no marriages and has given birth to nine children, eight of whom were
the subject of the current intervention. The social worker informed the court in the report
that father is the presumed father of six of the children: C.N., K.N., G.N., Ju. N., Ja.N.,
5
and Je.N. The man named on the birth certificate of A.S. was P.S., but he was not
actually her father. J.A-G. was named as the alleged father of L.A-G.
On June 28, 2021, the jurisdiction hearing was continued pending receipt of the
CAC interview reports and to allow the social worker to interview father. On August 27,
2021, CFS submitted the results of the CAC interviews in an Additional Information to
the court supplemental report. The reports indicated A.S., L.A-G., and K.N. had been
physically abused by mother. On August 30, 2021, a first amended petition was filed.
The amended petition added allegations of physical abuse by mother respecting those
children and the risk posed by that abuse to the other children, along with allegations that
father failed to protect the children from mother’s conduct. Father requested paternity
testing of himself and the six younger children.
On August 30, 2021, the parents denied the allegations of the amended petition.
However, while the children submitted DNA samples for testing in due course, father
never did. On October 25, 2021, the social worker submitted an additional information to
the court recommending that father not be designated presumed father of the two oldest
children, A.S. and L.A-G., because he was not their biological father, had not adopted
them, and because he had abused them. The jurisdiction hearing set for that day was
continued after the mother set the matter as a contested hearing, and father joined in that
request. Father also withdrew his request for paternity testing of his children.
On January 13, 2022, the social worker submitted an additional information
supplemental report to the court indicating that mother had not completed any
6
predispositional services and that while father had two negative drug tests, he had missed
seven drug tests, and had not completed any services, citing his work schedule.7 He had
also been terminated from individual counseling for failing to show up. However, his
visits with the children were more consistent than mother’s and he interacted with them,
making the most of his two-hour visitation time. Nevertheless, neither parent had made
progress in services causing the social worker to consider reunification to be unlikely.
On January 18, 2022, the contested combined jurisdiction and disposition hearing
took place. All of the social worker’s reports and addenda were received into evidence
without objection. County counsel argued against a finding that father was presumed
father as to A.S. and L.A-G., citing the decision in the case of In re T.R. (2005) 132
Cal.App.4th 1202. The court provisionally denied father presumed status based on the
arguments made on behalf of CFS, subject to father proving otherwise. Father did not
proffer any additional evidence to support a presumed father finding aside from argument
by his counsel that he has been in their lives taking care of them, lived with them, and
held them out as his own.8 The court found he was not the father and did not qualify as
the presumed father of the two older girls. However, in accordance with the social
7 There is no information in the record about his employment status or schedule
aside from the references to father’s inability to appear for drug testing. By history,
mother indicated father had a very poor record of employment and he did not like to
work. Father was in custody at least through June 28, 2021, according to minute orders
reflecting his custodial status.
8 It should be noted that at the jurisdiction-disposition hearing, CFS filed a second
amended petition adding allegations pertaining to A.S. and L.A-G., which are not part of
this record on appeal because their cases were not appealed.
7
worker’s recommendation, father was found to be the presumed father of the six younger
children.
As to the remaining issues, aside from father’s counsel’s general objection to the
petition, his only argument was posited against a true finding on the allegations of
substance abuse. On this allegation, father argued there was insufficient evidence
because there were no statements that anyone saw him using drugs, and the fact no drugs
were found in the home, although counsel acknowledged father had missed tests. As to
the remaining grounds for jurisdiction, father did not offer any specific argument for the
insufficiency of the evidence.9
After all counsel argued, the court made true findings on all allegations, declared
the children dependents and removed custody of the children from both parents. The
court found father was the presumed father of the six younger children and ordered the
parents to participate in Family Reunification Services.
Father appealed from the judgment affecting the six younger children.
9 Father initially argued against a true finding on the section 300, subdivision (g)
allegations, noting that they had been alleged because he was in custody at the inception
of the dependency, but he noted father was no longer in custody at the time of the
hearing. In response, the court noted there were no longer any subdivision (g) allegations
pending against father.
8
DISCUSSION
1. Father Failed to Appeal from the Denial of Presumed Father Status as to
A.S. and L.D.
In a supplemental opening brief, father argues the court erred in denying him
status as a presumed father of A.S. and L.A-G. CFS argues the lack of appellate
jurisdiction bars review of the findings because father failed to timely appeal from the
judgments affecting these two oldest children. We agree with CFS.
a. Background
On June 28, 2021, at the initially scheduled jurisdictional hearing, father requested
presumed father status as to A.S. and L.A-G. The jurisdictional/dispositional reports,
however, reflect that father was not related to the two older girls, although he was
apparently fond of saying that L.A-G. was his first born daughter. The social worker
recommended that father be declared presumed father of his six biological children in the
original jurisdiction-disposition report. But because the father was not married to mother
and had not adopted the two older children, A.S. and L.A.-G., and because of his physical
abuse of A.S. and her siblings, the social worker recommended that father not be
designated presumed father of the two oldest children in the Additional Information to
the Court report submitted on October 21, 2021.
At the contested jurisdiction and disposition hearing, the juvenile court declined to
recognize father as presumed father of the two oldest girls. Father urges reversal of this
finding. CFS argues that father failed to preserve this issue by not appealing that finding.
9
We agree. All of the children had separate case numbers and father referred only to the
cases involving his biological children in the notice of appeal. He also named them
specifically on the form. He did not appeal from the ruling affecting the two older
children.
b. Discussion
“‘[N]otices of appeal are to be liberally construed so as to protect the right of
appeal if it is reasonably clear what the appellant was trying to appeal from, and where
the respondent could not possibly have been misled or prejudiced.’ [Citations.]” (In re
Joshua S. (2007) 41 Cal.4th 261, 272.) A notice of appeal “is sufficient if it identifies the
particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).)
Thus, on appeal from a disposition judgment, a party may challenge findings made at the
jurisdiction hearing, and vice versa. (In re J.F. (2019) 39 Cal.App.5th 70, 75-76, citing
In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017.) Further, on appeal from a judgment
terminating parental rights, a parent may challenge a ruling on a section 388 petition
heard in the same proceeding or earlier hearing, even if not designated in the notice of
appeal, providing the notice of appeal is filed within 60 days of the order on the section
388 petition. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.)
“Once a notice of appeal is timely filed, the liberal construction requirement
compels a reviewing court to evaluate whether the notice, despite any technical defect,
nonetheless served its basic function—to provide notice of who is seeking review of what
10
order or judgment—so as to properly invoke appellate jurisdiction.” (K.J. v. Los Angeles
Unified School Dist. (2020) 8 Cal.5th 875, 883.)
Here, father’s notice of appeal does not identify the particular judgment or order
being appealed, but he refers to the order by date of the dispositional judgment and
specifically names his six biological children as the subjects of the appeal. Each child
had a separate Juvenile Court case number10 , and the policy of liberal interpretation
permits us to review all orders made on the date indicated for the named children (despite
the failure to name them on the first page of the notice of appeal where father described
the judgment subject to appeal or to list their case numbers).
However, father’s failure to name the two nonbiologically related children cannot
be cured in the same manner as an appeal that is defective for failing to include all the
orders being appealed from proceeding heard or concluded on a particular date because
their cases were separate, and he did not name them in the notice of appeal. The
jurisdiction and dispositional judgments as to the two older girls is final, and because no
notice of appeal was filed in their cases, the judgments are now final and the record on
appeal includes none of the minute orders pertaining to the non-biological children.
The notice of appeal is jurisdictional and a timely notice of appeal vests
jurisdiction in the Court of Appeal. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 864,
10 Separate dependency petitions were filed as to each child. The respective case
numbers for each of the children are reflected in the separate minute orders commencing
with the initial detention hearing. Ja.N.’s case number was J289255; Je.N.’s case number
was J289256; Ju.N.’s case number was J289257; G.N.’s case number was J289258;
K.N.’s case number was J289259; C.N.’s case number was J289260; L.A.-G.’s case
number was J289261; and A.S.’s case number was J289262.
11
citing Estate of Hanley (1943) 23 Cal.2d 120, 122.) Although recently the California
Supreme Court has carved out an exception to this rule in situations where a late filing of
the notice of appeal is due to ineffective assistance of counsel in failing to timely file a
notice of appeal at the parent’s request (see In re A.R. (2021) 11 Cal.5th 234), in the
present case counsel did timely file a notice of appeal, naming each of the children of
whom father was declared presumed father. The record does not reflect any information
from which we could assume father intended to appeal the judgments in the cases
involving the older children who were half-siblings of father’s six children, so we cannot
assume counsel was ineffective. It is for this reason that such issues are usually raised in
a timely petition for writ of habeas corpus. (Id. at pp. 254-255.)
In A.R., counsel negligently filed the notice of appeal four days late. (A.R., supra,
11 Cal.5th at p. 244.) The Supreme Court concluded it was unduly harsh to dismiss the
appeal of a parent to whom the untimeliness was not attributable. (Id., at p. 249.) There,
the Supreme Court reaffirmed its commitment to expeditious resolution of dependency
cases. (Id., at pp. 249, 253.) Parents must therefore make a timely application for relief.
(Id., at pp. 249-250.)
In the present case, the judgment was entered in January 2022 and no notice of
appeal was attempted to be filed even as of the date father filed his supplemental opening
brief addressing the denial of his presumed father status in the sibling cases of A.S. and
L.A.-G., and beyond that to the date he filed his reply brief. Nor has father attempted to
seek relief from the failure to file a notice of appeal.
12
Because we cannot presume that trial counsel was incompetent in failing to file a
notice of appeal in the cases of the older children the result is that the judgments as to the
older children are now final.
CFS alternatively argues that father failed to establish, by a preponderance of the
evidence, the facts supporting his entitlement to presumed father status including whether
it would be in the children’s best interests. (In re T.R., supra, 132 Cal.App.4th at p. 1210,
citing In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653.) In T.R., the father did not
come into the child’s life until the child was three years of age, but after that, he held the
child out as his own, which the court found to be a positive factor. (T.R., supra, at p.
1211.) However, the reviewing court stated the positive factors could not be viewed in a
vacuum, noting that father’s prior conduct and his history of molesting other children
“was antithetical to a parent’s role and was a blatant violation of parental responsibilities”
that more than counterbalanced the factors favoring his presumed father status, in
affirming the juvenile court’s finding. (In re T.R., supra, at pp. 1211-1212.)
There is a seductive appeal to the streamlined approach taken in In re T.R., but it
would create a significant risk to the rights of the parents, children and relatives by
permitting a court to find a father ineligible for reunification services, relative placement
options, among other things, based on the vague basis that his conduct is antithetical to a
parent’s role and in violation of parental responsibility, which are not criteria found in
Family Code section 7611.
13
We decline to reach this question and we do not need to reach it because father
failed to perfect an appeal from the orders affecting A.S. and L.A-G. This failure is
jurisdictional.
2. Substantial Evidence Supports the True Findings on All Allegations.
Father challenges the true findings as to allegations pertaining to K.N., Ju.N., Ja.N.
and Je.N. because the videotaped incident involving C.N. and prior incidents of abuse did
not demonstrate they were at risk of abuse. He argues the erroneous findings and
declaration of dependency as to these children affected the decision to remove all the
children from his custody as well as the nature of the reunification services ordered. We
disagree.
Although he asserts he objected to all the allegations against him, father did not
object to the social worker’s reports or offer testimony or other evidence on his behalf to
refute the information in the reports. Absent an objection to specific hearsay in the report
by father, those reports may be sufficient to support jurisdictional findings. (In re Lucero
L. (2000) 22 Cal.4th 1227, 1242; see also § 355, subd. (a).) He preserved only the right
to challenge the sufficiency of the evidence to support the jurisdictional findings. (In re
Richard K. (1994) 25 Cal.App.4th 580, 588-589 [submission on the social worker’s
recommendations waives any challenge to disposition where submission on the reports
does not]; In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237-1238.)
We therefore review the true findings on the statutory bases for jurisdiction for
substantial evidence. (In re K.S. (2016) 244 Cal.App.4th 327, 337, citing In re Rocco M.
14
(1991) 1 Cal.App.4th 814, 820 [disapproved on a different point in In re R.T. (2017) 3
Cal.5th 622, 629],see also, In re David M. (2005) 134 Cal.App.4th 822, citing In re
Heather A. (1996) 52 Cal.App.4th 183, 193.) In conducting our review of the record, we
resolve all conflicts and make all reasonable inferences from the evidence to uphold the
court’s orders, if possible. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
“Additionally, we may not substitute our deductions for those of the trier of fact.” (In re
Albert T. (2006) 144 Cal.App.4th 207, 216.)
Because father did not testify or call any witnesses, we may look only to the social
worker’s reports to determine if there is substantial evidence to support the jurisdiction
findings. In submitting on reports, “the parent acquiesces as to the state of the evidence
yet preserves the right to challenge it as insufficient to support a particular legal
conclusion.” (In re Richard K., supra, 25 Cal.App.4th at p. 589, citing In re Tommy E.,
supra, 7 Cal.App.4th at p. 1237.) Jurisdiction findings may be made by a preponderance
of the evidence.11 (§ 355, subd. (a).) We therefore accept as proven the unrefuted
information contained in the social worker’s reports which were admitted into evidence
and our job is to determine if the information provided therein supports the true findings
to support jurisdiction.
11 The reporter’s transcript of the jurisdictional findings does not indicate what
standard of proof the court applied in making its findings. We note the court stated it was
following the social worker’s recommendations as to the findings, but the social worker’s
recommendations are silent as to the standard of proof the juvenile court should apply. It
would be helpful if the court would indicate the standard of proof used in making
findings to aid our review.
15
Turning to his arguments on appeal, father argues that his abuse of A.S., C.N., and
G.N., does not sufficiently demonstrate that the youngest children were at substantial
risk. We disagree. First, the evidence shows that father did beat K.N. with a belt and that
only L.A.-G., and the infant twins were spared father’s physical abuse. So we need only
determine if the reports support jurisdiction findings as to Ja.N. and Je.N., since L.A.-
G.’s case is not before us.
In conducting our review, we follow certain additional principles. “‘When a
dependency petition alleges multiple grounds for its assertion that a minor comes within
the dependency court’s jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that
are enumerated in the petition is supported by substantial evidence.’” (In re D.P. (2014)
225 Cal.App.4th 898, 902, quoting In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see
also, In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) “‘In such a case, the
reviewing court does not need to consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.’” (Drake M., supra, at p. 762,
citing In re Alexis E., supra, 171 Cal.App.4th at p. 451.)
“However, [a reviewing court] generally will exercise our discretion and reach the
merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis
for dispositional orders that are also challenged on appeal [citation]; (2) could be
prejudicial to the appellant or could potentially impact the current or future dependency
proceedings [citations]; or (3) ‘could have other consequences for [the appellant] beyond
16
jurisdiction.’ [Citation.]” (Drake M., supra, 211 Cal.App.4th at pp. 762-763.) We
review each ground.
a. Section 300, subdivision (a)—Physical Abuse or Substantial Risk of Abuse
Father argues that the fact he physically abused some of his children does not
justify a finding under section 300, subdivision (a) that the youngest children were at risk
of physical abuse. We disagree.
As to the allegation of physical abuse pursuant to section 300, subdivision (a), an
allegation that a child has suffered serious physical harm inflicted non-accidentally by a
parent or guardian is sufficient to establish jurisdiction under that section. Further,
“[p]roof that either parent, the guardian, or other person who has the care or custody of a
minor who is the subject of a petition filed under Section 300 has physically abused,
neglected, or cruelly treated another minor shall be admissible in evidence.” (§ 355.1,
subd. (b).) Such proof is sufficient to establish jurisdiction under section 300,
subdivision (a) as to other related and unrelated children in the home. (In re Marquis H.
(2013) 212 Cal.App.4th 718, 725-726.) “This provision [of section 355.1] is consistent
with the principle that a parent’s past conduct may be probative of current conditions if
there is reason to believe that the conduct will continue.” (In re Y.G. (2009) 175
Cal.App.4th 109, 116.)
These principles apply to the present case: father has, in the past, inflicted serious
physical harm on all of his children except the infant twins, on multiple occasions. This
past conduct is probative of the current risk to the youngest children, who may be
17
properly considered to be at risk of serious physical harm under section 300,
subdivision (a).
Here, father has struck A.S., C.N., and K.N., has pulled the hair of A.S. and K.N.
so hard it left red marks and made the children cry, has struck C.N., G.N., K.N., and A.S.
with a belt leaving marks, has struck A.S. with a broom stick and water hose, and caused
permanent injury to her hand. Father argues his conduct was age-appropriate discipline,
which does not give rise to jurisdiction under the Juvenile Court Law.
We agree that age-appropriate discipline does not warrant juvenile court
intervention. (In re D.M. (2015) 242 Cal.App.4th 634, 640; see also, In re Isabella F.
(2014) 226 128, 138.) “‘Serious physical harm’ does not include reasonable and age-
appropriate spanking to the buttocks where there is no evidence of serious physical
injury.” (§ 300, subd. (a); In re D.M., supra, at p. 640.) However, father’s abuse left
bruises, welts, bumps, a laceration to C.N.’s head and an improperly healed finger or
hand fracture on A.S. This was excessive and supports the jurisdictional findings as to
those children, including the infants, where section 355.1 permitted the court to find that
father’s physical abuse of the older children placed the younger children at risk of similar
harm, pursuant to section 300, subdivision (a).
Moreover, given that the children were present when he engaged in physical
abuse, which included throwing objects at the children, the court could properly assume
that an object thrown at one of the older children could strike a younger child , bringing
18
all of the children within the definition of a dependent child under section 300,
subdivision (a).
“[S]ection 300 does not require that a child actually be abused or neglected before
the juvenile court can assume jurisdiction.” (In re I.J. (2013) 56 Cal.4th 766, 773; In re
Yolanda L. (2017) 7 Cal.App.5th 987, 993.) In determining whether the parent’s conduct
is likely to recur in the future, courts may consider evidence of the parent’s past conduct
which, as we have explained, establishes a significant history of physical abuse of the
children as well as domestic violence on father’s part. (See In re N.M. (2011) 197
Cal.App.4th 159, 165.) The legislative purpose of section 300 is to provide maximum
safety and protection for children who are currently being abused, neglected , or
exploited, and to ensure the safety, protection, and physical and emotional well-being of
children who are at risk of that harm. (§ 300.2; In re I.J., supra, at p. 773.)
Thus, while actual abuse can be a basis for exercising jurisdiction, it is by no
means requisite when there is evidence of substantial risk. (In re T.V. (2013) 217
Cal.App.4th 126, 134, citing In re I.J., supra, 56 Cal.4th at p. 773.) Father’s abuse of
several of the children exposed the other children to risk of abuse, given his limited
tolerance for children’s disruptive behavior. The children were also at risk because
mother had abused some of the children and father failed to protect them, posing a risk to
all the children. This evidence amply supports the true findings under section 300,
subdivision (a), against father as to all the children.
19
Finally, even if it could be said there was insufficient evidence to make true
findings as to Ja.N. and Je.N. under section 300, subdivision (a), the same conduct was
properly pled under section 300, subdivision (j), which father has not challenged on
appeal. Thus, a reversal of specific allegations of physical abuse of Ja.N. and Je.N.
would not affect the disposition.
Before we leave this issue, we feel compelled to address father’s attempts to
minimize his conduct and the risk of harm by arguing that his abuse of A.S. and C.N. was
attributable to circumstances unique to them, due to their diagnoses as suffering from
ADHD, as if that would excuse or mitigate his serious physical abuse. This argument
does not deserve traction on appeal, and we decline to accept this type of rationale for
violent behavior because it implies that children with behavior problems are not entitled
to protection against harm by their parents. There is no “the child made me do it” excuse
for physical abuse.
We also reject it because it ignores the reality that when father throws steel-toed
boots or other objects within his reach at one child, there is the very substantial risk that
the projectile will hit a child other than his intended target. It also ignores the fact he told
the police that all the children except one were disobedient and had bad tempers,
suggesting he could easily rationalize excessive discipline respecting all of them. There
is no “disobedient child defense” to physical abuse.
While the Juvenile Court Law recognizes that certain disciplinary measures, age-
appropriate discipline, are reasonable and will not result in a dependency, father’s
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behavior went far beyond a spanking, including, in addition to the infliction of physical
harm with various household implements, yelling inappropriate derogatory terms at the
children. Father’s behavior cannot be condoned because children are disobedient and we
will not go there. There is substantial evidence to support the true findings that Ja.N. and
Je.N. are at risk of serious physical harm under section 300, subdivision (a).
b. Section 300, subdivision (b)(1) – Failure to Protect
Father argues there is insufficient evidence to support the jurisdictional finding
that he failed to protect the children A.S., L.A.-G. and K.N. from mother’s physical
abuse. We disagree. We do not need to address the sufficiency of evidence as it pertains
to A.S. and L.A.-G. because they are not part of this appeal. As to K.N., father argues
that “[t]he child failed to explain when the hitting occurred, whether it occurred on only
one occasion, and most importantly whether Father saw the hitting or otherwise should of
[sic] been aware that it happened.”
As with other grounds for jurisdiction, we review for substantial evidence and are
bound to accept as true the matters stated in the social worker’s reports, which were
admitted into evidence without objection. Father points to no evidence in the record
showing that mother did not physically abuse the children, and mother did not challenge
the jurisdictional allegations against her at the hearing, so we assume that the allegations
supporting a finding that mother abused the three children are supported by substantial
evidence.
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Additionally, the evidence showed that father and mother engaged in domestic
violence, which mother minimized but which included father’s severe abuse of mother
while she was pregnant with the twins, Ja.N. and Je.N. “Exposure to domestic violence
may serve as the basis of a jurisdictional finding under section 300, subdivision (b).” (In
re R.C. (2012) 210 Cal.App.4th 930, 941.)
Regarding father’s failure to protect K.N., the evidence in the reports shows that at
least until the date of his arrest, father was not employed; he remained at home, either
“being helpful in taking care of the children” while mother worked, or watching movies
with the children, or staying in the bedroom. The conclusion is inescapable that he either
knew or should have known of mother’s abuse, after all, he apparently took the children
with him when he left the house. Father waived his opportunity to testify and did not
object to the evidence submitted by CFS, which supports jurisdiction. The record
demonstrates father was present so the court drew a logical inference that he either knew
or should have known of the abuse committed by mother and failed to protect the
children, absent evidence to the contrary.
There is substantial evidence to support the finding on the failure to protect
allegations.
c. Section 300, subdivision (b)(1) - Substance Abuse
Father’s domestic abuse involving mother and his physical abuse of the children
seem to have begun approximately three years before the incident that resulted in CFS
intervention, and his change in behavior was attributed to suspected drug use. Father
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argued at the jurisdiction hearing that the allegation could not stand because no one had
ever seen him doing drugs and no drugs were found in the home. On appeal, he
complains that the evidence in the reports indicated the older children “heard” mother
talk about father doing drugs, the “suspicion” that he was doing drugs due to the changes
in his behavior and personality, and A.S.’s statements about father staying up all night,
sleeping during the day, and having high energy, is too speculative to support the true
findings on these allegations.
The information pertaining to the allegations was contained in the social worker’s
reports, which father agreed could be admitted into evidence and considered by the court.
Father did not make any hearsay or other objections to the reports. Absent an objection,
the social worker’s reports were properly considered by the trial court.
Reviewing the entire record to determine if the information in the reports about
suspected substance abuse is sufficient to support the true finding on that allegation, our
review of the sufficiency of the evidence is limited to reviewing that evidence to
determine if they support true findings that the children are persons described in section
300, subdivision (b)(1) due to substance abuse.
Here, the reports reveal that M.R., mother’s cousin and caretaker of the children
due to father’s shortcomings in this regard, informed the social worker that while she had
not seen father use drugs in her presence, “however, he always ask [sic] about buying
cocaine when she been [sic] around him and it has been stated that he uses crystal meth.”
In addition, she stated father would take G.N., L.A.-G., Ju.N. and K.N. with him when he
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went to a friend’s house where he left them unattended in the car for 30 minutes while he
went into the garage, only to then go home behaving strangely. The children reported
hearing mother discuss father’s drug use, although they had not seen it themselves.
Further, father’s personality and behavior changed radically about three years earlier,
when the domestic violence began. Finally, a friend of fathers confirmed father was
using methamphetamine.
Father’s primary argument in the trial court was that the allegation of substance
abuse as set forth under the section 300, subdivision (b)(1) allegation, was not supported
by the record because no one actually saw him doing drugs and no drugs were found by
police in the home. Father cites no authority for the proposition that there must be
eyewitness to his drug use in order to support a true finding on this allegation.
Father also complains that the social worker never interviewed him, but he had
already been arrested when CFS arrived at the home following receipt of the referral and
he was still in custody when he appeared at the June 28, 2021, hearing, preventing her
from interviewing him due to Covid-19 restrictions while he was in custody. Father had
notice of the proceedings and apparently was aware how to contact CFS (the additional
information to the court filed on August 27, 2021, reveals father contacted a social
worker following his release, where he informed her of an altercation with mother a few
weeks before, when he caught her with another man at the residence.) Yet a due
diligence declaration filed by CFS reveals that as of October 25, 2021, the social worker
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had no current address or phone number with which to reach him to notify him of the
continued hearing date, much less to conduct an interview.
Nevertheless, despite the covert manner in which father practiced his use of drugs,
the children had heard mother talk about his drug use, there was evidence father’s
personality and behavior underwent a drastic change within the past three years, father’s
friend had confirmed his use of methamphetamine, and father had missed 7 out of 9 drug
tests without contacting the social worker to arrange a more convenient testing schedule.
We agree the evidence is not overwhelming, but findings for the purpose of determining
jurisdiction need only be established by a preponderance of the evidence. We think
Justice Mosk’s observation appropriate here: “I would invoke the folk wisdom that if an
object looks like a duck, walks like a duck and quacks like a duck, it is likely to be a
duck.” (In re Deborah C. (1981) 30 Cal.3d 125, 141, conc. opn., Mosk, J.) It is indeed
fortunate that father was not observed using drugs by the children or maintained drugs in
the home where the police might have found them at the time of his arrest. But that does
not necessarily mean that there is insufficient evidence to support the allegation, under a
preponderance of the evidence standard.
Further, once CFS submitted the reports in support of the allegations at the
jurisdiction hearing, the burden of producing evidence shifted to father to refute the
allegations. (Evid. Code, §§ 110, 550; Welf. & Inst. Code, § 355, subds. (a), (d); see also
In re Lucero L. (2000) 22 Cal.4th 1227, 1242 [certain types of hearsay are sufficient to
25
support a jurisdictional finding unless a party raises a timely objection to the admission of
specific hearsay evidence contained in a social study].) Father did not do so.
Father also argues that the finding of substance abuse was improper because such
an allegation requires testimony by a medical expert. There is authority supporting the
position that a finding of substance abuse requires that the parent’s use fall within the
definition of the disorder described in the DSM-V. (See In re Christopher R. (2014) 225
Cal.App.4th 1210, 1217-1219 [agreeing that the reasoning of In re Drake M. (2012) 211
Cal.App.4th 754, 765-766, was a useful definition but not binding].) In those cases, there
was a full contested hearing.
But father did not present the argument in the trial court that this allegation could
not be found true without a medical diagnosis, and without objecting to the admission of
the reports into evidence, or the lack of evidence that he met the medical diagnosis, he
forfeited this issue. “Many dependency cases have held that a parent’s failure to object or
raise certain issues in the juvenile court prevents the parent from presenting the issue to
the appellate court.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338, and cases
there cited.)
What remains is unrefuted information in the social worker’s reports which is
sufficient to satisfy the preponderance of evidence standard, although we agree it is not
overwhelming evidence that father’s substance abuse interferes with his ability to provide
regular care for the children. However, reversing the finding in the face of so many
missed drug tests and his failure to notify CFS of his whereabouts upon his release from
26
custody in order to submit to an interview regarding the allegations against him or for
father to inform CFS of the scheduling issues regarding drug tests, would reward his
refusal to cooperate with the Agency for the protection of his children. Further, even if
we were to reverse this one allegation, it would not change the outcome. When substance
abuse is eliminated from the jurisdictional equation, what is left is the profile of a father
who is simply abusive towards his children, requiring removal of custody for their
protection.
It is well-settled that if any one of several enumerated statutory bases for
jurisdiction is supported by substantial evidence, a reviewing court need not consider
whether other alleged statutory bases are also supported by the evidence. (In re Alexis E.
(2009) 171 Cal.App.4th 438, 451.) Father has never denied drug use and did not
challenge the allegations under section 300, subdivision (b)(1) on any other basis other
than the fact no one had personally seen him using drugs. The remaining allegations
would still stand and are more than sufficient to support jurisdiction: father physically
abused most of the children under his care, neglected to obtain medical treatment for
A.S.’s broken finger for which he was responsible, he engaged in domestic violence with
mother, which exposed the children to risk of harm, and he did not protect the children
against mother’s abuse. All of this conduct began within a three year period, when the
drug use began, and father never denied drug use. The evidence rises to the level of
preponderance of the evidence, which father failed to refute by producing evidence to the
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contrary. Father’s challenges to the substance abuse findings do not require reversal of
the judgment.
3. Removal of the Children from Father’s Custody Was Proper
In the lower court, father submitted on disposition and agreed to reunification
services. He did not posit any argument against removal of custody of the children.
Nevertheless, we address the removal order because father challenges the findings
supporting jurisdiction and urges us to conclude that the removal order was premised on
erroneous findings, requiring reversal. We disagree.
Section 361, subdivision (c), sets out the factors that must be established to justify
a removal of custody of children. That section provides in relevant part: “A dependent
child shall not be taken from the physical custody of his or her parents, guardian or
guardians, or Indian custodian with whom the child resides at the time the petition was
initiated, unless the juvenile court finds clear and convincing evidence of any of the
following circumstances listed in paragraphs (1) to (5), inclusive, and, where it is known
or there is reason to know that the child is an Indian child, as defined by Section 224.1,
paragraph (6):
(1) There 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, guardian’s, or Indian
custodian’s physical custody. . . . .” (§ 361, subd. (c)(1).)
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If the social services agency recommends removal of the child from the home of
his parent or guardian, it must prove the detrimental circumstances exist by clear and
convincing evidence. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1083.) In
interpreting section 361, subdivision (b) our Supreme Court explained “[a]t the
dispositional hearing, the burden is on the state to prove, by clear and convincing
evidence, that removal of the child from the parent’s custody is necessary.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 308.)
“Before the court may order a child physically removed from his or her parent, it
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 by which the child can be
protected without removal.” (§ 361, subd. (c)(1); In re Cole C. (2009) 174 Cal.App.4th
900, 917, citing In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
“On appeal from a dispositional order removing a child from a parent we apply the
substantial evidence standard of review, keeping in mind that the trial court was required
to make its order based on the higher standard of clear and convincing evidence.” (In re
Ashly F. (2014) 225 Cal.App.4th 803, 809, citing In re Noe F. (2013) 213 Cal.App.4th
358, 367.)
“A removal order is proper if it is based on proof of parental inability to provide
proper care for the minor and proof of a potential detriment to the minor if he or she
remains with the parent.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, citing In
re Jeannette S. (1979) 94 Cal. App. 3d 52, 60.) “The parent need not be dangerous, and
29
the minor need not have been actually harmed before removal is appropriate.” (In re
Diamond H., supra, at p. 1136.) The focus of the statute is on averting harm to the child.
(In re Jamie M. (1982) 134 Cal.App.3d 530, 536, citing In re B.G. (1974) 11 Cal.3d 679,
699.)
In the present case there was uncontradicted evidence that father had physically
abused all but three children in the household. Further, in the months leading to the
jurisdictional-dispositional hearing, father engaged in no services, other than visiting with
the children. His visits with the children are the only positives in the assessment of
father’s parenting in a record replete with evidence of his violence towards family
members. Nevertheless, aside from admitting to the police at the time of his arrest that he
may have “crossed the line”, he persisted in his denials that he abused his children and
attempted to justify his violence to the children by attributing his lack of control to C.N.’s
and A.S.’s ADHD and the other children’s disobedience.
“In determining whether a child may be safely maintained in the parent’s physical
custody, the juvenile court may consider the parent’s past conduct and current
circumstances, and the parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332, citing In re Cole C. (2009)
174 Cal.App.4th 900, 917.) In this respect, a court may consider a parent’s refusal to
take responsibility for his abusive conduct. (See, In re Gabriel K. (2012) 203
Cal.App.4th 188, 197 [“One cannot correct a problem one fails to acknowledge.”].)
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Given that father continuously engaged in physical abuse of his children and
participated in domestic abuse with mother, which could not be abated until the police
were called and CFS intervened, coupled with father’s attempts to minimize and excuse
his violence by blaming the children’s behavior, the court could properly conclude by
clear and convincing evidence that the abuse would continue in the future unless the
children were removed. Certainly, father makes no cogent argument the pattern of child
abuse he has exhibited was a one-time or situational episode that is unlikely to recur.
(See, In re A.E. (2014) 228 Cal.App.4th 820, 826 [“Evidence of past abuse, standing
alone, does not meet the clear and convincing standard of proof required to justify her
removal from Father’s physical custody.”], citing In re Rocco M. (1991) 1 Cal.App.4th
814, 824].)
The children lived in a house of horrors that required law enforcement and social
services to intervene for the protection of the children. The true findings on the
allegations, having been supported by substantial evidence, coupled with the risk the
abuse was likely to recur, satisfied the necessary findings under section 361, subdivision
(c).
To the extent father is opposed to the proposed outpatient substance abuse
treatment program and drug testing, we remind father that at the hearing, he agreed to
reunification services, including drug testing, but did request that the testing be on
demand instead of random to accommodate his schedule. In all other respects, he agreed
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to services. He has forfeited any challenge to the disposition order requiring that he
participate in substance abuse treatment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
SLOUGH
J.
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