In re J.G. CA2/4 ( 2016 )

Filed 4/18/16 In re J.G. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
In re J.G. et al., B264528
(Los Angeles County
Persons Coming Under the Juvenile Court Law. Super. Ct. No. DK08045)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
YESENIA L.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Veronica McBeth, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and
Respondent.
Yesenia L. (Mother) appeals from jurisdictional and dispositional orders of
the dependency court under Welfare and Institutions Code section 300,
subdivisions (b) and (c)1 with respect to her children, J.G. (born March 2005),
Jasmine G. (born Oct. 2010), and Alison L. (born Nov. 2011). The court found
jurisdiction based on allegations that Mother physically abused the children and
subjected them to excessive interviews regarding alleged sexual abuse by a
stepbrother. Mother contends that the court’s jurisdictional findings are not
supported by substantial evidence and that the court erred in removing the children
from her custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pre-filing Investigation
The family consists of Mother, the children, and the children’s respective
fathers. All three children lived with Mother and C.C., Alison’s father. J.G. and
Jasmine’s father, Jo.G. (Father), lived with his wife Elizabeth G. and her two
children, Carlos and Jayden. Mother and Father had a custody order that gave
Father joint custody and placed J.G. and Jasmine with Father every weekend.
Mother and Father also had restraining orders against each other due to a fight in
December 2013 between Father, Elizabeth, Mother, and C.2
The family came to the attention of the Los Angeles County Department of
Children and Family Services (DCFS) in February 2014 after Jasmine told Mother
that Carlos touched her vagina and caused her to bleed during a weekend visit with
1
All further statutory references are to the Welfare and Institutions Code.
2
According to the police report, when Father and Elizabeth were returning the
children to Mother, Elizabeth struck Mother several times and someone named Cesar
Lopez kicked Mother in the head with a steel-toe boot.
2
Father. A social worker interviewed Father and Elizabeth. Elizabeth denied the
allegation, stating that they never left the children alone and supervised them
constantly. Elizabeth accused Mother of making threats against her and stated that
the children were always dirty when they came from Mother’s home.
Father stated that Mother was “using the kids to fight and start drama” and
expressed his desire for full custody of the children. He repeated Elizabeth’s
allegation that the children were often dirty and inappropriately dressed when
Mother brought them. Father explained that he never left the children alone
because Mother’s concern that Carlos bullied J.G. had resulted in a court order
requiring Father’s constant supervision of J.G. and Carlos. Father stated that
Carlos was “never near my daughter.” All the children slept in the same room at
Father’s house.
Carlos denied the allegations regarding Jasmine and told the caseworker that
Mother was “trying to hurt our family.”
On March 2, 2014, Mother reported that after Father brought the children
home that day, Jasmine started complaining of rectal pain and a burning sensation
while urinating. Mother saw redness on Jasmine’s thighs and swelling in her
vaginal area. Mother took Jasmine to a hospital, “but they did not take her
seriously and did not help.” Mother was concerned that Carlos, who was 16 years
old, sexually abused Jasmine. Mother also reported that J.G. told her Carlos
threatened to beat him up if he did not watch pornography with him. Carlos denied
looking at pornography or showing inappropriate pictures to J.G.
On March 4, 2014, a caseworker conducted an unannounced visit to
Mother’s house. Mother was very upset and asked why she was being investigated
when the sexual abuse occurred in Father’s home. She did not allow the
caseworker into her home.
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Approximately a week later, a caseworker intern conducted an unannounced
visit to Mother’s home. The intern interviewed J.G., who stated that he did not like
going to Father’s house because Carlos bullied him and forced him to view
pornographic images. J.G. had never seen Carlos hurt Jasmine, but he stated that
Jasmine cried whenever she was forced to go to Father’s house because she
preferred to stay with Mother or maternal grandmother. The intern was unable to
interview Jasmine and Alison because they were too young. There were no signs
of abuse or neglect on any of the children.
A March 3, 2014 forensic medical report indicated that an examination of
Jasmine was normal. The examiner was not able to confirm or negate the
allegations of sexual abuse. Another sexual abuse examination on March 31, 2014,
yielded negative results. A caseworker thought Jasmine had been coached. A
detective expressed the opinion that the allegations were unfounded because Carlos
denied the allegation. The detective also thought that J.G. had been coached
because J.G. initially denied the allegation that Carlos bullied him, but after
speaking to Mother, he told the detective that Carlos showed him pictures of naked
girls.
On April 8, 2014, J.G.’s elementary school contacted the caseworker to
report suspected abuse and neglect, on the grounds that J.G.’s school attendance
was poor and he often came to school “dishevel[ed] and dirty.”
On April 16, 2014, Mother again insisted to the caseworker that Jasmine had
been sexually molested by Carlos. Mother took Jasmine to the hospital, “but they
did not take her seriously and did not help.” Mother reported that Jasmine had
begun wetting her bed and throwing tantrums when it was time to visit Father.
In June 2014, a referral was made to DCFS alleging that Mother neglected
two-year-old Alison by accidentally leaving her at J.G.’s school for 20 minutes
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before returning to retrieve her. During this time, Alison wandered around the
school grounds unsupervised and was almost run over in the parking lot. Mother
denied that she had allowed Alison to wander around for 20 minutes, stating that
“it was only a second.”
In August 2014, Father brought Jasmine to the police station to report that he
had found bruises on her buttocks. Jasmine stated that Mother “hit me on the butt
with an open hand because I did something bad.” The caseworker noticed a bruise
that appeared to have been made by a belt. Mother denied hitting Jasmine. She
stated that Jasmine had eczema and that the bruise occurred when Jasmine hit
herself with the stroller.
Medical examinations of the children in September 2014 indicated no
evidence of physical or sexual abuse or neglect of any of them. The doctor
described all three children as “alert” and “delightful” and noted that Jasmine
suffered from eczema.
DCFS filed a section 300 petition in October 2014 alleging jurisdiction
under subdivisions (a), (b), and (j). The petition alleged that Mother struck J.G.
with belts, hangers, and her hands, and that she engaged in a violent altercation
with Father and Elizabeth in December 2013. The petition further alleged that
Mother subjected J.G. and Jasmine to excessive interviews regarding the alleged
sexual abuse by Carlos and encouraged J.G. to give false information regarding the
alleged abuse. The juvenile court detained the children and ordered J.G. and
Jasmine released to Father. The court ordered Alison released to Mother on the
condition that Mother comply with all the court’s orders. In November 2014,
DCFS filed an amended petition, adding allegations that Mother physically abused
Jasmine and Alison by striking them with her hands and pulling Jasmine’s hair.
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Jurisdiction/Disposition Report
J.G. was interviewed in November 2014 for the jurisdiction/disposition
report. He told the investigator that Mother hit him and Jasmine with a semi-
closed hand when they “are bad.” He further stated that Mother hit him once or
twice with a hanger, but she did not hit Jasmine with a hanger. He said that he got
a “red mark” on his arm when Mother hit him and that Jasmine got “dark marks.”
He stated that Mother hit Alison with an open hand, but he denied that Mother hit
any of them with a belt or sandals.
When asked about the relationship between his parents, J.G. stated that
Mother and Father fought and yelled at each other whenever they saw each other.
He said that Mother initiated the arguments, but that Father responded by yelling
back.
The investigator also interviewed Jasmine, who was three years old.
Jasmine said that Mother was sometimes nice and sometimes mean to her. She
stated that Mother sometimes grabbed her and put her in the corner or hit her with
a semi-open hand. Jasmine also said that Mother spanked Alison with an open
hand and hit J.G. with a hanger. Jasmine denied seeing any fights between Mother
and Father. Jasmine also denied ever being touched “in her private part” or saying
that anyone had done so. She said that Carlos was nice to her.
Mother denied using a belt, hanger, or any other object to discipline J.G.
She stated that she spanked him with an open hand over his clothing and denied
leaving any marks or bruises on him. As to Jasmine and Alison, Mother denied
hitting them and stated that she gave them time outs or put them in the corner.
Mother denied telling J.G. to lie about Carlos showing him pornography and
said she learned it was a lie when J.G. told her so. She said that “no one believed
[her] daughter” because of J.G.’s lies about the pornography. Mother again said
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that Jasmine told her that Carlos pinched her vagina and made her bleed. She
panicked when Jasmine told her and therefore took her to the police station.
Father said J.G. and Jasmine had bruises and marks on their faces, legs,
buttocks, and backs every time he picked them up for visits. The children initially
explained the marks by saying they fell, hit themselves, or were scratched by pets,
but eventually they told Father that the marks were caused by Mother hitting them
with her hand or hangers. J.G. told Father he was afraid to talk about what Mother
did because Mother told him the social workers would take the children away if he
did. Father also reported that J.G. said Mother asked them to lie.
Father denied that Carlos abused Jasmine, explaining that Jasmine never said
anything about it or expressed fear about being alone with Carlos. Father also said
that Carlos, a respectful “straight A student” who “never gets in trouble,” denied
touching Jasmine. When Father asked Jasmine about it, she repeatedly told him
Carlos “touched [her] and blood came out,” but Father thought Jasmine “was being
asked to say this.” According to Father, he began having issues with Mother after
she learned he had a girlfriend and after he filed a petition in family court for
custody of the children. Mother became aggressive and started arguing with him
and accusing him of not taking care of the children.
According to Elizabeth, J.G. told her Mother beat him for telling the truth
during family court proceedings and Jasmine told her Mother hit her for calling
Elizabeth “mommy.”
DCFS concluded that Mother was the “primary aggressor” in the family and
recommended detention of J.G. and Jasmine from Mother, but recommended that
Alison remain under Mother’s care.
In a January 2015 Last Minute Information for the Court, DCFS stated that
Mother admitted spanking J.G. and Jasmine once and denied ever hitting Alison.
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C.C. said that he had lived with Mother for three years and that she occasionally
spanked the children with an open hand but never used belts, hangers, or any other
objects. When asked why the children would say she hit them, C.C. speculated
that the accusations came from Father. C.C. explained that he and Mother learned
about the sexual abuse allegations after they found J.G. searching for sexually
explicit material on the computer, which he said Carlos had shown him. C.C. did
not think Mother subjected the children to excessive evaluations, stating that she
only had Jasmine examined once, after Jasmine told her Carlos pinched her vagina
and made her bleed.
At a January 22, 2015 Multi-Disciplinary Case Planning Committee
Meeting, Mother agreed to participate in a mental health evaluation, counseling,
and parent education. DCFS stated that Mother had participated in family
preservation services but had failed to attend seven out of ten toxicology tests
scheduled between November 2014 and January 2015. The three tests she took
were negative. DCFS asked the court to advise Mother that failure to comply with
the weekly drug testing could result in Alison’s removal from her care. Although
Mother complied with all the other court orders, she was not consistent with the
weekly drug testing; therefore, in March 2015, Alison was removed from Mother’s
care and placed with C.C. Mother voluntarily moved out of the home.
Adjudication Hearing
At the March 2015 adjudication hearing, the juvenile court ordered stricken
all counts except counts b-1 and b-2, which alleged that Mother subjected J.G. and
Jasmine to excessive interviews regarding sexual abuse and that she physically
abused the children by striking J.G. with hangers and striking all three children
with her hands. The court added count c-1, alleging that Mother created a
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detrimental home environment by subjecting J.G. and Jasmine to excessive
interviews regarding Mother’s reports of sexual abuse.
Mother and maternal grandmother testified at the adjudication hearing. The
court found neither credible and expressed the opinion that they were harming the
children. The court declared the children persons described by section 300,
subdivisions (b) and (c). The court found that remaining in Mother’s home would
pose a substantial risk of harm to the children, there were no reasonable means
other than removal to keep them safe, and DCFS made reasonable efforts to
prevent removal. The court removed the children from Mother’s custody and
ordered six random drug tests, a parenting class, a psychological assessment,
individual counseling, and monitored visits. Mother timely appealed.
DISCUSSION
Mother contends the evidence is insufficient to support the juvenile court’s
findings of jurisdiction under section 300, subdivisions (b) and (c). She further
contends the court erred in removing the children from her custody under section
361.
I. Section 300 Findings
A child is within the jurisdiction of the juvenile court under section 300,
subdivision (b) if “[t]he child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise or protect the
child . . . .” (§ 300, subd. (b)(1).) “‘Proof by a preponderance of evidence must be
adduced to support a finding that the minor is a person described by Section 300
. . . .’ To establish jurisdiction under section 300, subdivision (b), the department
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must prove by a preponderance of the evidence that there was neglectful conduct
by the parent in one of the specified forms; causation; and ‘“serious physical harm
or illness”’ to the child or ‘substantial risk’ of such harm or illness. [Citations.]”
(In re R.C. (2012) 210 Cal.App.4th 930, 941.) “Subdivision (c) requires a showing
that [the child] ‘is suffering serious emotional damage, or is at substantial risk of
suffering serious emotional damage, evidenced by severe anxiety, depression,
withdrawal, or untoward aggressive behavior toward self or others’ and that either
the parent is causing the emotional damage or the parent is not capable of
providing appropriate mental health treatment. [Citation.]” (In re K.S. (2016) 244
Cal.App.4th 327, 337.)
“We review the juvenile court’s findings under section 300 for substantial
evidence and will affirm the judgment based on those findings if they are
supported by reasonable, credible evidence of solid value. [Citation.]” (In re X.S.
(2010) 190 Cal.App.4th 1154, 1160.) “‘It is the trial court’s role to assess the
credibility of the various witnesses, to weigh the evidence to resolve the conflicts
in the evidence. We have no power to judge the effect or value of the evidence, to
weigh the evidence, to consider the credibility of witnesses or to resolve conflicts
in the evidence or the reasonable inferences which may be drawn from that
evidence. [Citation.] Under the substantial evidence rule, we must accept the
evidence most favorable to the order as true and discard the unfavorable evidence
as not having sufficient verity to be accepted by the trier of fact.’ [Citation.]” (In
re A.S. (2011) 202 Cal.App.4th 237, 244.)
Substantial evidence supports the juvenile court’s finding of jurisdiction
under count b-2, which alleged physical abuse. Mother cites various reports in the
record that indicated no evidence of physical abuse to support her challenge to the
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jurisdictional finding. Nonetheless, there is substantial evidence in the record to
support the court’s finding under section 300, subdivision (b).
In April 2014, J.G. told the caseworker that Mother hit him with a hanger
and her hand, leaving red marks on his body. In August 2014, Father took Jasmine
to the police station to report that he found bruises on her buttocks that appeared a
few days old. Jasmine said Mother “hit [her] on the butt with an open hand
because [she] did something bad.” In November 2014, J.G. told the dependency
investigator that Mother hit him once or twice with a hanger and hit Jasmine and
Alison with her hand. He said that he got a “red mark” on his arm when Mother
hit him and that Jasmine got “dark marks.” J.G. further stated that Mother hit them
“all the time when we are bad,” and that she hit Jasmine “really hard.” Jasmine
reported that Mother hit her with her hand and hit J.G. with a hanger. She stated
that she turned “black” where Mother hit her.
Mother cites section 300, subdivision (a)’s provision that “‘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).)
However, she does not challenge the findings that she hit J.G. with a hanger and
that she inflicted marks on the children when she hit them. The evidence that
Mother hit a nine-year-old child with a hanger and hit a four-year-old child hard
enough to leave marks on her is sufficient to support the juvenile court’s finding of
jurisdiction under section 300, subdivision (b).3
3
“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
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence. [Citations.]” (In re
Alexis E. (2009) 171 Cal.App.4th 438, 451; see also In re Ashley B. (2011) 202
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II. Removal under Section 361
Mother contends the juvenile court erred in removing the children from her
custody under section 361. “Under section 361, subdivision (c)(1) children may
not be removed from their home ‘unless the juvenile court finds clear and
convincing evidence’ of a substantial danger to the children’s physical health,
safety, protection, or physical or emotional well-being ‘and there are no reasonable
means’ for protecting the children other than removal from their home. The statute
‘is clear and specific: Even though children may be dependents of the juvenile
court, they shall not be removed from the home in which they are residing at the
time of the petition unless there is clear and convincing evidence of a substantial
danger to the child’s physical health, safety, protection, or physical or emotional
well-being and there are no “reasonable means” by which the child can be
protected without removal.’ [Citation.]
“To aid the court in determining whether ‘reasonable means’ exist for
protecting the children, short of removing them from their home, the California
Rules of Court require DCFS to submit a social study which ‘must include’ among
other things: ‘A discussion of the reasonable efforts made to prevent or eliminate
removal.’ (Cal. Rules of Court, rule 5.690(a)(1)(B)(i).)” (In re Ashly F. (2014)
225 Cal.App.4th 803, 809 (Ashly F.).) “The court shall state the facts on which the
decision to remove the minor is based.” (§ 361, subd. (d).)
“The standard of review of a dispositional order on appeal is the substantial
evidence test, ‘bearing in mind the heightened burden of proof.’ [Citations.] The
Cal.App.4th 968, 979 [“As long as there is one unassailable jurisdictional finding, it is
immaterial that another might be inappropriate.”].) In light of our conclusion that the
court’s finding of jurisdiction under section 300, subdivision (b) is supported by
substantial evidence, we need not address Mother’s challenge to the finding under section
300, subdivision (c).
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appellant has the burden of showing there is no evidence of a sufficiently
substantial nature to support the court’s findings or orders. [Citation.]” (In re A.E.
(2014) 228 Cal.App.4th 820, 826.)
Mother contends that the court’s removal order is not supported by
substantial evidence and that the court failed to consider less drastic measures than
removal, such as unannounced visits or weekly in-home visits by a parenting
instructor. (See In re Henry V. (2004) 119 Cal.App.4th 522, 529 (Henry V.)
[dispositional order removing the child not supported where “the court did not
mention the existence of alternatives to out-of-home placement,” despite stating
there were no other reasonable means to protect the child].)
First, we disagree with Mother’s contention that the children suffered no
physical harm. As discussed above, there was substantial evidence to support the
court’s finding of physical abuse of the children.
Mother’s failure to acknowledge the physical harm she caused supports the
court’s finding that there were no reasonable means to protect the children other
than removal. Mother denied striking J.G. with a hanger or causing him any marks
or bruises. She also denied ever using corporal punishment on Jasmine or Alison.
Mother’s lack of insight into her behavior supports the court’s decision to order the
children removed. (Compare Ashly F., supra, 225 Cal.App.4th at p. 810 [finding
“[a]mple evidence” of reasonable means to protect the children in the home where
the mother expressed remorse for the injuries she inflicted on her child and was
enrolled in a parenting class].) The court was not required to discuss alternatives
to removal, especially where there was no evidence presented that alternative
services could have prevented removal. (Compare Henry V., supra, 119
Cal.App.4th at p. 529 [there were other reasonable means to protect the child
13
where there was “ample evidence that appropriate services could have been
provided . . . in the family home”].)
Mother further argues that the court improperly ordered removal in order to
secure her future cooperation. (See Henry V., supra, 119 Cal.App.4th at pp. 529-
530 [“The social worker’s suggestion that out-of-home placement would be useful
to secure [mother’s] further cooperation was not a proper consideration. The
statutory grounds for removing a child from parental custody are exclusive. A
mother’s fundamental right to the custody of her child is not a bargaining chip.”].)
DCFS responds by pointing out Mother’s previous refusals to cooperate with
DCFS and her failure to take responsibility for the children’s removal. DCFS cites
numerous reports in the record indicating Mother’s lack of cooperation. For
example, Mother missed appointments in April and May 2014, and she refused to
allow the caseworker into her home on March 4, 2014. On August 27, 2014, she
did not allow the caseworker to interview the children privately, and in October
2014, she refused to provide information about C.C. and refused to speak privately
to the caseworker, who did not want to discuss allegations in the children’s
presence.
In light of Mother’s failure to acknowledge the physical harm she caused her
children and her refusals to cooperate with DCFS, we conclude that the removal
order is supported by substantial evidence.
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DISPOSITION
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
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