In re J.G. CA2/7 ( 2020 )

Filed 11/17/20 In re J.G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re J.G. et al., Persons B301707
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. Nos.
19CCJP04105A & B;
19CCJP04089A-D)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MYESHA S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Rashida A. Adams, Judge. We reverse one
of the jurisdiction findings as to J.G. and T.J. (19CCJP04105A
& B). In all other respects the jurisdiction findings and
disposition orders in both dependency cases are affirmed.
Valerie N. Lankford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Sarah Vesecky, Senior Deputy
County Counsel, for Plaintiff and Respondent.
______________________________
Alleging domestic violence and substance abuse, the
Los Angeles County Department of Children and Family Services
(Department) in late June 2019 filed a petition pursuant to
Welfare and Institutions Code section 3001 concerning
Myesha S.’s two sons, 15-year-old J.G. and 13-year-old T.J., and a
second petition as to the four children for whom she serves as
legal guardian, 16-year-old Monique C., 15-year-old twins
Evette C. and Evon C., and three-year-old Josiah C., Monique’s
son.2 The juvenile court sustained both petitions, declared the
children dependents of the juvenile court and removed them from
Myesha’s custody. Emphasizing her participation in a variety of
programs prior to the jurisdiction hearings and her decision to
sever her relationship with her long-time boyfriend Dennis J., the
man responsible for the domestic violence at issue in the cases,
1 Statutory references are to this code.
2 The Department’s detention report indicated Nina W., the
mother of Monique, Evette and Evon, was Myesha’s sister-in-law
and a close friend. Myesha became the children’s legal guardian
in June 2018.
2
Myesha contends on appeal there was insufficient evidence to
support the court’s finding her past conduct created a substantial
risk of future physical harm to the children. Alternatively, even
if dependency jurisdiction was appropriate, she contends the
court erred in finding by clear and convincing evidence that no
reasonable means existed to protect the children without
removing them from her care.3 We reverse one of the jurisdiction
findings as to J.G. and T.J. but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Children’s Detention
The Department received a report in May 2019 that
Dennis J. had physically abused Myesha in front of Dennis J.’s
six-year-old son and the reporting party’s six-year-old son. When
interviewed by one of the Department’s social workers several
weeks later, Myesha said she had ended her relationship with
Dennis J. two months before but nonetheless had gone to his
home to braid his hair. Dennis J. became enraged when Myesha
disclosed she was romantically involved with someone else, and
he hit her several times. Myesha locked herself in the bathroom
to prevent further injury. Although Myesha initially claimed this
was the only violent incident she had with Dennis J., she
3 In her opening brief Myesha also argues the minute order
from the disposition hearing for Monique, Evette, Evon and
Josiah inaccurately stated the court ordered her visitation with
these children to be monitored, rather than unmonitored. We
have granted the Department’s request to take judicial notice of
the juvenile court’s June 1, 2020 order correcting its disposition
order nunc pro tunc to reflect Myesha’s visits are to be
unmonitored. This issue, therefore, is moot.
3
subsequently acknowledged she had been physically abused by
Dennis J. “off and on for a few years.”
Thereafter, Myesha submitted to a drug test that was
positive for methamphetamine and marijuana; the test results
also indicated Myesha had diluted her sample. Myesha denied
using methamphetamine but admitted she regularly used
marijuana, insisting she never smoked in front of the children.
Additional interviews included a statement from T.J.’s father
that Myesha had said she smoked “primos” (a combination of
marijuana and cocaine). On June 21, 2019 Myesha advised the
Department she had checked into an outpatient program for drug
and alcohol abuse and claimed she had discovered the
methamphetamine in her system was due to consuming Jello
shots at a party.
On June 24, 2019 the juvenile court authorized the
Department to detain the children from Myesha. J.G. and T.J.
were released to their respective fathers. The Department could
not locate Monique, Evette, Evon or Josiah. It was ultimately
learned that Myesha had fled with them to Las Vegas to avoid
their detention. Monique then ran away from the relative’s home
where they were staying in Las Vegas, taking Josiah with her.
The Department filed petitions as to all six children
pursuant to section 300, subdivisions (a) and (b)(1), alleging the
domestic violence between Dennis J. and Myesha endangered the
children’s physical health and safety. The petition specifically
referred to the May 2019 incident, during which Dennis J. had
hit Myesha, causing a two-inch cut on her face, and additionally
alleged, “[o]n prior occasions, [Myesha’s] male companion struck
[Myesha].” The petitions also alleged under section 300,
subdivision (b)(1), that Myesha was a current user of
4
amphetamine, methamphetamine and marijuana, which
rendered her incapable of regular care of the children.
At detention hearings on June 28, 2019 all six children
were detained from Myesha, and her visits with the children
were ordered to be monitored. J.G. and T.J. remained released to
their fathers. Protective custody warrants were issued for the
four children under Myesha’s legal guardianship, and an arrest
warrant was issued for Myesha. Evette and Evon were located
and detained on July 2, 2019. Monique and Josiah remained at
large. They were ultimately detained on August 19, 2019.
The Department filed first amended petitions in both cases
on August 20, 2019, adding language to the substance abuse
count alleging Myesha had “a two year history of illicit drug
abuse including ecstasy and is a frequent user of amphetamine,
methamphetamine, marijuana, ecstasy and alcohol,” which
rendered her incapable of providing regular care for the children.4
2. The Jurisdiction/Disposition Reports
The Department filed jurisdiction/disposition reports in the
two cases on August 20, 2019 that were substantially identical
except for the biographical information regarding the children
and their various paternal and maternal relatives. The reports
4 On September 3, 2019 the Department filed a second
amended petition on behalf of J.G. and T.J. adding counts under
section 300, subdivisions (b)(1) and (g), alleging in identical
language that J.G.’s father was unwilling to care for him and that
“[s]uch unwillingness to provide the child with the basic
necessities of life including, but not limited to, food, clothing and
shelter, endangers the child’s physical and emotional health and
safety and places the child at risk of physical and emotional harm
and damage.”
5
detailed an August 16, 2019 interview with Myesha conducted by
one of the Department’s dependency investigators.
Myesha described the incident at Dennis J.’s house that
triggered the investigation, stating Dennis J. had choked her,
dragged her and “knocked me out three times.” She had
previously explained he hit her in the face several times,
although she could not recall exactly how many. Dennis J.’s
six-year-old son was present (“peeking in”) during the episode.
When asked about her history of domestic violence with
Dennis J., Myesha said that about a month before the May
incident Dennis J. had hit her while they were together in a car.
She said the violence had only started recently when she and
Dennis J. began using drugs. She explained it was Dennis J. who
had introduced her to ecstasy. Myesha said she had now stopped
all contact with Dennis J.
Myesha insisted the children had never seen any of the
violent altercations between Dennis J. and her, but, after initial
denials, acknowledged they were probably aware of the violence
and had seen her injuries. Several of the children confirmed
hearing about the most recent episode of violence and seeing
Myesha’s injuries.
Asked specifically about drug use, Myesha said she had
been using ecstasy for two years. She initially used it to stay
alert at work, approximately two or three times a week, but also
started using it after work (recreationally). Myesha denied using
methamphetamine, but then admitted, although she was not a
“crystal meth head,” there was methamphetamine in the pills she
took. Myesha regularly smoked marijuana, having started years
earlier after an injury, but claimed she had recently stopped. She
also insisted she did not smoke in front of the children.
6
Generally, she would go outside to her balcony and then, when
finished, return to the children. Myesha said she did not drink
much alcohol, perhaps wine once a week.
A treatment plan attached to the jurisdiction/disposition
report, prepared July 9, 2019 and signed by Myesha and a
counselor from the House of Uhuru outpatient drug program,
stated, “Patient [Myesha] reported that she has 35 years history
of smoking Marijuana and 2 years history of Amphetamines
abuse.”
Myesha provided the dependency investigator with copies
of her certificates of completion of a domestic violence program
and a parenting program, as well as copies of the sign-in sheet for
a substance abuse program.
Dennis J., interviewed by the dependency investigator by
telephone on August 15, 2019, said he and Myesha had a long
relationship (13 years) that had just ended, but indicated the two
of them still continued to see each other. He denied there had
ever been incidents of domestic violence between them (although
he conceded he and the mother of his child “had some issues”)
and specifically claimed Myesha’s allegations concerning the day
she came to braid his hair were false.
Tommie J., T.J.’s father, described Myesha as an alcoholic
and said she regularly smoked marijuana. T.J.’s paternal aunt
recounted numerous episodes of domestic violence between
Dennis J. and Myesha and explained, because Myesha’s older son
J.G. was a known gang member, no one would call the police.
The Department’s assessment was that Myesha had an
extensive and unresolved substance abuse issue that needed to be
addressed to create a safe environment for the children. The
Department acknowledged Myesha’s participation in a substance
7
abuse treatment program, but noted her enrollment in the
program was relatively recent and there were only a few drug
test results after the June 12, 2019 positive test for
methamphetamine and marijuana. Two tests had been positive
for marijuana; Myesha had missed a test scheduled for
August 12, 2019.
3. The Jurisdiction Hearing for Monique, Evette, Evon and
Josiah
At the jurisdiction hearing for Monique, Evette, Evon and
Josiah on September 4, 2019, after the court admitted into
evidence the Department’s reports and the documents Myesha
presented concerning her program participation, Myesha’s
counsel asked the court to dismiss the petition. Children’s
counsel asked the court to sustain the domestic violence count
under section 300, subdivision (b)(1), but not subdivision (a), and
to sustain the count alleging substance abuse.5
The court sustained both section 300, subdivision (b)(1),
counts and dismissed the subdivision (a) count, finding the
Department had not carried its burden of proof as to the latter
charge, explaining the evidence was that the children were not
present during the violent altercations but were aware of them.
The court continued, “This kind of violence, which the children
indicated occurred when the legal guardian and [Dennis J.] were
in and out of each other’s homes, is the kind of conduct which
places the children at substantial risk of serious physical harm.”
As for the substance abuse count, the court found the evidence,
including from Myesha’s own statements, established ongoing
5 Monique, Evette and Evon were jointly represented; Josiah
had separate counsel. Both lawyers joined in this
recommendation.
8
substance use and abuse and, further, that the children were in
Myesha’s care while she was under the influence.6 The
disposition hearing was continued to October 17, 2019 and then
again to November 1, 2019.
4. The Jurisdiction and Disposition Hearings for J.G. and
T.J.
The court conducted the jurisdiction and disposition
hearings for J.G. and T.J. on October 17, 2019.7 In addition to
the material the court had at the jurisdiction hearing the prior
month for Monique, Evette, Evon and Josiah, the Department
submitted a last minute information report, dated October 17,
2019. The Department stated a corrected letter from Myesha’s
drug treatment program indicated that, as of September 3, 2019,
she had been in the program for 71 days (not 90 days as
previously reported). Myesha’s drug tests continued to show
positive for marijuana during June, July and August, but were
negative in September and October. (She missed a test on
September 9, 2019.) Myesha provided the court with a more
recent letter from her program, dated October 15, 2019, which
reported she continued to demonstrate positive behavior in the
program with full participation in all treatment services. Myesha
6 While finding that Myesha’s conduct endangered all the
children, the court emphasized Josiah was “of tender years.”
7 The jurisdiction hearing for J.G. and T.J. had been
scheduled for September 4, 2019, the same day as the jurisdiction
hearing for Monique, Evette, Evon and Josiah, but was continued
after the Department filed a second amended petition to include
allegations regarding the difficulties between J.G. and his father.
(See footnote 4, above.)
9
also submitted a letter reporting she was actively participating in
therapy.
T.J. and J.G.’s counsel joined Myesha in requesting the
court dismiss the section 300 petition in its entirety.
The court sustained the domestic violence counts under
both section 300, subdivisions (a) and (b)(1),8 and the substance
abuse count under section 300, subdivision (b)(1).9 The court
observed that the evidence established “not only a lengthy and
serious history of ongoing violence perpetrated by the companion,
Dennis J[.], on the mother but also a long-standing significant
and severe substance abuse problem suffered by the mother.”
The court noted, although T.J. and J.G. were teenagers, “the
extent of the mother being under the influence while the children
were in her care remains significant in that, as indicated in the
evidence, it was of such a nature that it prevented her from
providing adequate care and supervision even of older children.”
The court commended Myesha’s recent steps to address these
issues, but emphasized the problems had existed for a long time
prior to the Department’s intervention.
Proceeding immediately to disposition, the court declared
both boys dependents of the court and found by clear and
8 Neither the parties nor the court addressed any
inconsistency between the court’s determination on September 4,
2019 that the Department’s evidence supported the domestic
violence count under section 300, subdivision (b)(1), but not
subdivision (a), and its finding, based on the identical evidence,
sustaining both domestic violence counts on October 17, 2019.
9 The court also sustained the additional count regarding
J.G.’s father under section 300, subdivision (b)(1), but dismissed
the subdivision (g) count.
10
convincing evidence there would be substantial danger to their
physical health or safety if returned to Myesha’s physical custody
and, as to J.G., to his father’s custody, and further found there
were no reasonable means to protect them without removal. The
court identified as the basis for its determination the facts as
found true in the sustained petition and again stated the
domestic violence and substance abuse issues were significant,
severe and long-standing. The court ordered J.G. suitably placed
and released T.J. to his father. The Department was ordered to
provide reunification services to Myesha, including unmonitored
daytime visitation; Myesha was given credit for the programs in
which she had already participated.
5. The Disposition Hearing for Monique, Evette, Evon and
Josiah
Children’s counsel joined Myesha in urging the court to
allow the children to return home at the November 1, 2019
disposition hearing.10 Nonetheless, the court declared all four
children dependents of the court; removed them from Myesha’s
custody based on its findings, by clear and convincing evidence,
there would be a substantial danger to their physical health and
safety if returned home and there were no reasonable means by
which they could be protected without removal; and ordered the
Department to provide Myesha with reunification services. As it
had two weeks earlier at the disposition hearing for J.G. and T.J.,
the court referred to the extreme domestic violence and Myesha’s
significant substance abuse issues, as found true in the sustained
petition. The court also expressed concern about the children’s
flight to avoid detention at the outset of the dependency
10 Nina W.’s counsel also joined in the request.
11
proceedings and Myesha’s active role in that episode. The court
again commended Myesha’s recent efforts to resolve her
problems, but noted she was still at the initial stages of
treatment when compared with the length of time the substance
abuse and domestic violence had been going on.
Myesha filed timely notices of appeal in both cases. We
consolidated the two appeals at Myesha’s request.
DISCUSSION
1. Governing Law
The purpose of section 300 “is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”
(§ 300.2; see In re A.F. (2016) 3 Cal.App.5th 283, 289; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.) In addition, the
Legislature has declared, “The provision of a home environment
free from the negative effects of substance abuse is a necessary
condition for the safety, protection and physical and emotional
well-being of the child.” (§ 300.2.)
Section 300, subdivision (a), provides that jurisdiction may
be assumed if the child has suffered, or there is a substantial risk
the child will suffer, serious physical harm inflicted
nonaccidentally by the child’s parent or guardian.
“Nonaccidental” generally means a parent or guardian “acted
intentionally or willfully.” (In re R.T. (2017) 3 Cal.5th 622, 629.)
Section 300, subdivision (b)(1), allows a child to be
adjudged a dependent of the juvenile court when “[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
12
inability of his or her 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 . . . .” A jurisdiction finding under section 300,
subdivision (b)(1), requires the Department to prove
three elements: (1) the parent’s or guardian’s neglectful conduct
or failure or inability to protect the child; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re L.W. (2019)
32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; see In re R.T., supra, 3 Cal.5th at p. 624
[“section 300(b)(1) authorizes dependency jurisdiction without a
finding that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].)
Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not
wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child. (In re
Kadence P. (2015) 241 Cal.App.4th 1376, 1383; In re N.M. (2011)
197 Cal.App.4th 159, 165.) The court may consider past events in
deciding whether a child currently needs the court’s protection.
(In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216;
In re N.M., at p. 165.) A parent’s “‘[p]ast conduct may be
probative of current conditions’ if there is reason to believe that
the conduct will continue.” (In re S.O. (2002) 103 Cal.App.4th
453, 461; accord, In Kadence P., at p. 1384.)
Before the court may order a child removed from the
physical custody of a parent with whom the child was residing at
the time the dependency proceedings were initiated, it must find
13
by clear and convincing evidence that the child would be at
substantial risk of physical or emotional harm if returned home
and there are no reasonable means by which the child can be
protected without removal. (§ 361, subd. (c); In re T.V. (2013)
217 Cal.App.4th 126, 135; see In re Anthony Q. (2016)
5 Cal.App.5th 336, 347.) “The parent need not be dangerous and
the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.” (In re T.V., at pp. 135-136.)
2. Standard of Review
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’”
(In re I.J. (2013) 56 Cal.4th 766, 773.) We review the whole
record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence such that a
reasonable trier of fact could find that the order is appropriate.
(Ibid.; accord, In re I.C. (2018) 4 Cal.5th 869, 892.)
In evaluating the propriety of a disposition order removing
a child from a parent or guardian pursuant to section 361, in
view of the requirement the juvenile court make the requisite
findings based on clear and convincing evidence, we “must
14
determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005.)
3. Substantial Evidence Supports the Jurisdiction Findings
Under Section 300, Subdivision (b)(1)
Myesha does not deny her history of substance abuse or the
episodes of domestic violence with Dennis J. but argues the
evidence did not establish any of the children was at current risk
of harm by the time of the jurisdiction hearings in September and
November 2019. Substantial evidence supports the juvenile
court’s jurisdiction findings on both grounds under section 300,
subdivision (b)(1).
a. Domestic violence
Exposure to domestic violence may serve as the basis of a
jurisdictional finding under section 300, subdivision (b)(1). (In re
R.C. (2012) 210 Cal.App.4th 930, 941.) “‘Both common sense and
expert opinion indicate spousal abuse is detrimental to children.’”
(In re E.B. (2010) 184 Cal.App.4th 568, 576, disapproved on
another ground in Conservatorship of O.B., supra, 9 Cal.5th at
p. 1010, fn. 7; see In re Heather A. (1996) 52 Cal.App.4th 183, 194
[“[D]omestic violence in the same household where children are
living is neglect; it is a failure to protect [the children] from the
substantial risk of encountering the violence and suffering
serious physical harm or illness from it. Such neglect causes the
risk”]; see also In re T.V., supra, 217 Cal.App.4th at p. 135
[“[e]ven though [the child] had not been physically harmed, the
cycle of violence between the parents constituted a failure to
protect her”].)
15
Unlike the facts in the cases upon which Myesha relies
(see, e.g., In re M.W. (2015) 238 Cal.App.4th 1444, 1454 [single
incident of domestic violence more than seven years before the
jurisdiction hearing]; In re Daisy H. (2011) 192 Cal.App.4th 713,
717 [violence had occurred at least two, and probably seven,
years before the filing of the dependency petition]), the violence
here was both recent and recurring. In addition, Myesha’s claim
to have severed her relationship with Dennis J. by the time of the
jurisdiction hearings did not negate the continuing risk of harm
to the children. There was evidence before the court Myesha and
Dennis J. had a history of breaking up and reconciling; and in
discussions with the Department Myesha even identified
Dennis J. as part of her support network.
Although the children had not witnessed Dennis J. striking
Myesha, they were well aware the violence was occurring, which
under the circumstances here was sufficient to support a
jurisdiction finding. (See In re T.V., supra, 217 Cal.App.4th at
pp. 134-135 [although child was not present at the time of the
incident that led to dependency proceedings, her awareness of it
and the likelihood of continuing domestic violence between her
parents placed her at risk of harm].) Moreover, the fact the
precipitating incident in these cases occurred in the presence of
Dennis J.’s son confirmed the risk that future episodes of violence
could occur in the direct presence of Myesha’s children.
In sum, substantial evidence supported the court’s finding
of jurisdiction under section 300, subdivision (b)(1), based on
domestic violence between Myesha and Dennis J.
b. Substance abuse
Myesha admitted taking ecstasy for more than two years,
initially to help her stay awake at work; later, recreationally. As
16
discussed, the outpatient treatment plan developed by one of her
service providers explained she was being treated for a substance
abuse disorder, documented amphetamine abuse and reported
she had been smoking marijuana for 35 years. When interviewed
for the Department’s jurisdiction/disposition reports, Myesha
expressed her desire to continue in treatment.
Others interviewed by the Department, as reflected in the
jurisdiction/disposition reports, confirmed Myesha’s history of
drug use and indicated her behavior was impacted by it.
Dennis J. described having to take the children to school when
Myesha overslept, which he believed was related to her drug use.
Several of the children (particularly Evette and Evon) reported
Myesha “got crazy” or aggressive and verbally abusive when
intoxicated. This evidence amply supported the juvenile court’s
findings that Myesha suffered from significant substance abuse
issues. (See In re Rebecca C. (2014) 228 Cal.App.4th 720, 726
[court may find parent is current substance abuser even if she
has not been diagnosed by a medical professional and does not
fall within one of the specific categories of substance use
disorders identified in the Diagnostic and Statistical Manual of
Mental Disorders]; In re Christopher R., supra, 225 Cal.App.4th
at p. 1218 [same].) Given the evidence establishing the extended
length and severity of Myesha’s drug problem, the court’s finding
her recent participation in a treatment program had not
satisfactorily resolved the problem was also adequately
supported.
Even if she needed to continue treatment to control her
substance abuse, Myesha contends, there was insufficient
evidence her drug use created any specific risk of harm to the
children. (See In re Rebecca C., supra, 228 Cal.App.4th at
17
pp. 727-728 [physical harm to a child is not presumed from a
parent’s substance abuse; it remains for the Department to prove
causation and harm].) Yet, notwithstanding Myesha’s insistence
she never used drugs in the presence of the children, the evidence
established she often occupied the role of caregiver immediately
after using; and the children described in detail Myesha’s
aggressive behavior when intoxicated (whether under the
influence of drugs or alcohol), including one incident in which
Myesha threw an empty alcohol bottle at Dennis J. and his son as
they drove away from her house. This conduct was a sufficient
link between Myesha’s substance abuse and the risk of harm to
the children to support the jurisdiction finding.11
4. There Is Insufficient Evidence To Support a Finding
Under Section 300, Subdivision (a) as to J.G. and T.J.
Incidents of domestic violence between a child’s parents
may support a jurisdiction finding under section 300,
subdivision (a). (See In re Giovanni F., supra, 184 Cal.App.4th at
pp. 598-599.) For example, if a father strikes an infant’s mother
while she is holding the child or an older child intervenes during
a fight to protect her mother from her father’s abuse, the injury
or risk of harm to the child may be properly viewed as
nonaccidental. (See, e.g., In re M.M. (2015) 240 Cal.App.4th 703,
720.) The somewhat more common potential for accidental injury
11 Josiah had just turned two years old at the time of the
jurisdiction hearing. As to him, a child of “tender years,” “‘the
finding of substance abuse is prima facie evidence of the inability
of a parent or guardian to provide regular care resulting in a
substantial risk of harm.’” (In re Christopher R., supra,
225 Cal.App.4th at p. 1219; accord, In re Kadence P., supra,
241 Cal.App.4th at p. 1385.)
18
during parents’ physically violent fights in the presence of
bystander children, however, constitutes a failure or inability to
protect the child, creating the potential for dependency
jurisdiction under section 300, subdivision (b)(1) (and possibly
section 300, subdivision (c), as well), but not subdivision (a).12
Under any domestic violence scenario, however,
section 300, subdivision (a), applies only when the physical harm
or risk of physical harm at issue has been inflicted “by the child’s
parent or guardian.” Here, the sustained allegation in the second
amended complaint relating to L.G. and T.J. was that “mother’s
male companion” had engaged in violent physical altercations
with Myesha in which he was the aggressor. That allegation,
even though proved, is not a proper basis for jurisdiction under
section 300, subdivision (a).
5. Substantial Evidence Supports the Removal Orders
Noting all the children other than Josiah are teenagers
capable of protecting themselves, Myesha argues requiring her to
continue with her treatment programs, ordering in-home services
and authorizing the Department to make unannounced visits
would have been a reasonable way to protect the children without
removing them from her physical custody. Therefore, she
contends, under section 361, subdivision (c), it was error to order
12 Although acts of domestic violence are themselves
nonaccidental (see In re Giovanni F., supra, 184 Cal.App.4th at
p. 600), section 300, subdivision (a), requires a risk of physical
injury “inflicted nonaccidentally upon the child.” An unintended
injury to a bystander child—for example, due to an object thrown
by one parent at another during an argument—does not satisfy
that statutory requirement. (But see In re Giovanni F., at
pp. 600-601 [attacks on mother in child’s presence supported
jurisdiction under section 300, subdivision (a)].)
19
their removal. Myesha’s suggestion might be sound if her
substance abuse were the only issue presented to the juvenile
court. But the children had a far greater need for protection.
As the juvenile court emphasized, Myesha and Dennis J.
had an extended history of domestic violence; and the final
episode precipitating the current dependency proceedings was
severe. This cycle of violence, combined with their history of
separating and reconciling, created a significant risk of future
harm to the children (In re T.V., supra, 217 Cal.App.4th at p. 135
[cycle of violence between parents constitutes a failure to protect
their child]), a risk exacerbated by Myesha’s refusal to
acknowledge the seriousness of the problem. (See In re V.L.
(2020) 54 Cal.App.5th 147, 156 [parent’s denial of domestic
violence increases the risk of it recurring]; see also In re
Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot correct
a problem one fails to acknowledge”].) As disclosed in her
interviews with the Department, Myesha attempted to minimize
the significance of her violent arguments with Dennis J.,
insisting, contrary to the facts, that the children were unaware of
them and had never seen her injuries. Indeed, the only regret
Myesha seemed to express was that she had been unable to
return the violence, telling the dependency investigator, “I can’t
fight him. I’m too weak. I wish I did know how to fight. I
would’ve got him good.”
Combined with the not fully resolved drug problem
(Myesha continued to test positive for marijuana use
notwithstanding her treatment protocol calling for total
abstinence), which Myesha conceded contributed to the domestic
violence issues, this record, viewed as a whole, contains
substantial evidence from which the juvenile court could find by
20
clear and convincing evidence that there were no reasonable
means to protect the children without removing them from
Myesha’s custody.
DISPOSITION
The jurisdiction finding under section 300, subdivision (a),
as to J.G. and T.J. (19CCJP04105A-B) is reversed. In all other
respects the jurisdiction findings and disposition orders in both
dependency cases are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
21