In re Joan H. CA2/2 ( 2023 )

Filed 7/27/23 In re Joan H. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re JOAN H. et al., Persons B320457
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. Nos. 22CCJP00842A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JUAN H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Annabelle G. Cortez, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
******
Juan H. (father) appeals the juvenile court’s exertion of
dependency jurisdiction over his two young children on the
ground that it is unsupported by the record. The Los Angeles
Department of Children and Family Services (the Department)
argues that the juvenile court’s subsequent termination of
jurisdiction renders father’s appeal moot. Although we exercise
our discretion to reach the merits of father’s appeal, we conclude
that the court’s exercise of jurisdiction was supported by
substantial evidence. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and Claudia E. (mother) have two children—
namely, Joan H. (born 2018) and Santiago H. (born 2021). Joan
suffers from autism and, at the time of the incident giving rise to
the exertion of jurisdiction, was nonverbal.
On a Monday in late February 2022, Santiago was
admitted to the hospital for a skull fracture with some internal
bleeding. A doctor specializing in child abuse opined that the
severity of the injury would be “consistent with an accidental fall”
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of three to four feet or with intentional blunt force trauma, and
estimated that the incident occurred approximately three but not
more than four days prior.
The parents’ explanations for Santiago’s injury were not
consistent.
Mother’s story changed over time. Mother initially
reported that she had no idea how Santiago was injured, and
merely gave an accounting of Santiago’s whereabouts over the
weekend before the injury—namely, that the maternal
grandmother babysat Santiago on Saturday, that the family
attended an outdoor wedding on Saturday night while Santiago
spent half an hour asleep on the sofa inside, and that the family
on Sunday attended a family gathering where Santiago played
outside. After mother was told that the absence of an
explanation meant that Santiago was likely to be removed from
her custody, mother reported that Santiago fell a few inches from
a foam mattress pad to a hardwood floor sometime in the week
before the hospital visit. The doctor opined that the injury
Santiago suffered “could not have been caused” by a fall of such a
relatively small height. During a lie detector test administered
by police investigating Santiago’s injury, mother reported that
she had left the children with father for about 90 minutes on the
day before they brought Santiago to the hospital and, when she
returned, Santiago was crying and father appeared nervous. She
also reported that it was father who first pointed out the bump on
Santiago’s head that day.
Father’s story also changed over time. Like mother, father
initially reported that he had no idea how Santiago was injured.
After mother reported that she had left the children in father’s
care, father admitted that he had watched the children, but
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reported that Santiago had hit his head on a slat of his crib while
flailing around. The doctor opined that this incident would not
have caused such a severe injury. Father later reported that,
after she arrived home, mother had “bumped” Santiago’s head
with her knee.
Although the local police opened and conducted an
investigation, prosecutors elected not to charge either parent
with child abuse. One investigating officer shared her opinion
that it was still unclear how Santiago was injured, or even if it
was accidental or intentional, because “[m]any hands” had been
on Santiago in the days surrounding his injury.
II. Procedural Background
A. The Department files a petition
On March 7, 2022, the Department filed a petition asking
the juvenile court to exert dependency jurisdiction over Joan and
Santiago on the ground that Santiago’s injury was the type of
injury that “would not ordinarily occur except as a result of
deliberate, unreasonable and neglectful acts on the part of the
mother and father who had care, custody and control” of him,
which “endanger[s]” Santiago’s “physical health, safety and well-
being” and “create[s] a detrimental home environment and
place[s]” both children “at risk of serious physical harm, damage
and danger.” The petition alleged that dependency jurisdiction
was warranted under subdivisions (a), (b)(1), and (j) of section
300 of the Welfare and Institutions Code.1 The petition also
alleged that the Department would be relying on the statutory
presumption set forth in section 355.1, subdivision (a)—namely,
that a juvenile court must presume jurisdiction is proper under
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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subdivisions (a) or (b) of section 300 if the Department presents
“competent professional evidence” that a child’s injury “is of a
nature” that would “not be sustained except as the result of the
unreasonable or neglectful acts or omissions” by a parent. (§
355.1, subd. (a).)
On March 10, 2022, the juvenile court held the detention
hearing. The court found a prima facie case that the children
were persons described by section 300, placed them with mother
on the condition that father move out of the house, and granted
father monitored visitation (but allowed mother to serve as the
monitor).
B. The juvenile court sustains the petition in part
On May 11, 2022, the juvenile court held the jurisdictional
and dispositional hearing. After hearing argument, the court
sustained the allegation under subdivisions (b)(1) and (j) (but not
subdivision (a)), and modified the allegation slightly to provide
that Santiago’s injury was the type of injury that “would not
ordinarily occur except as the result of deliberate, unreasonable
or neglectful acts on the part of the mother and father who had
care, custody and control of the child.” The court returned the
children to the custody of both parents and allowed father to
return to the home, but implemented safety measures including
authorizing the Department to make unannounced visits and
ordering the parents to make the children available to the
Department during those visits.
C. Father appeals
Father filed this timely appeal.
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D. The juvenile court terminates jurisdiction
After six months of services, the juvenile court on
November 9, 2022, terminated dependency jurisdiction over the
children.
DISCUSSION
Father argues that the juvenile court’s jurisdictional
finding is not supported by the record. As a threshold matter, the
Department argues that father’s appeal became moot once the
juvenile court terminated its dependency jurisdiction over the
children. Although the Department is correct that this appeal is
moot because all restrictions placed on the family while the court
exerted dependency jurisdiction are no longer in effect, we have
discretion to entertain father’s challenge anyway and elect to
exercise that discretion here because the jurisdictional finding as
to father may prejudicially affect him in future dependency
proceedings. (In re D.P. (2023) 14 Cal.5th 266, 285 (D.P. (2023))
[“Courts may consider whether the challenged jurisdictional
finding ‘could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings,’ or ‘“could
have other consequences for [the appellant], beyond
jurisdiction”’”]; ibid. [“A prior jurisdictional finding can be
considered by the Department in determining whether to file a
dependency petition or by a juvenile court in subsequent
dependency proceedings”].)
The juvenile court’s exercise of jurisdiction in this case
rests on two provisions—namely, subdivisions (b)(1) and (j) of
section 300. Because subdivision (j) provides a basis for exerting
dependency jurisdiction over a child when a sibling has been
abused or neglected (§ 300, subd. (j); In re I.J. (2013) 56 Cal.4th
766, 774 (I.J.)), the propriety of jurisdiction over Joan pursuant
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to subdivision (j) turns on whether jurisdiction is appropriate
over Santiago pursuant to subdivision (b)(1). In pertinent part,
subdivision (b)(1) of section 300 authorizes a court to exercise
dependency jurisdiction over a child 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 . . . [t]he failure or
inability of the child’s parent . . . to adequately supervise or
protect the child.” (§ 300, subd. (b)(1).)
Although our task in assessing whether a jurisdictional
finding is unsupported typically requires us to examine whether
the Department has adduced substantial evidence to support the
court’s jurisdictional finding (I.J., supra, 56 Cal.4th at p. 773),
our task in this case is a little different. That is because the
Department, after giving advance notice, relied on the
presumption set forth in section 355.1, subdivision (a). This
provision provides:
“Where the court finds, based upon competent
professional evidence, that an injury, injuries, or
detrimental condition sustained by a minor is of a
nature as would ordinarily not be sustained except as
the result of the unreasonable or neglectful acts or
omissions of either parent, the guardian, or other
person who has the care or custody of the minor, that
finding shall be prima facie evidence that the minor
is a person described by subdivision (a), (b), or (d) of
[s]ection 300.”
(§ 355.1, subd. (a).) This presumption is one affecting the
“burden of producing evidence.” (Id., subd. (c).) Thus, once the
Department provides “competent professional evidence” that a
child suffered an injury that would “ordinarily not be sustained”
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in the absence of “unreasonable or neglectful acts or omissions” of
the parents, the burden “‘shifts to the parents’” to “‘raise[] an
issue as to the actual cause of the injury or the fitness of the
home.’” (In re D.P. (2014) 225 Cal.App.4th 898, 903 (D.P. (2014));
In re G.Z. (2022) 85 Cal.App.5th 857, 885-886 (G.Z.); D.P. (2023),
supra, 14 Cal.5th at p. 274.) Once a parent “‘“produces some
quantum of evidence casting doubt on the truth of the presumed
fact”’” by “‘introduc[ing]’” “‘evidence’” “‘which would support a
finding of [the] nonexistence [of the presumed fact],’” the
presumption “‘“disappears, leaving it to the [Department] . . . to
prove”’” the facts necessary for jurisdiction. (G.Z., at pp. 884-886;
Evid. Code, § 604 [defining “presumption[s] affecting the burden
of producing evidence”].) Thus, this type of presumption is
colloquially referred to as a “bursting-bubble presumption”: Once
sufficient evidence is introduced to counter it, the presumption’s
bubble bursts and disappears entirely. Our Legislature created
this bursting-bubble presumption as a means of preventing
families from “stonewall[ing] the Department and its social
workers concerning the origin of a child’s injuries and escap[ing]
a jurisdictional finding . . . .” (In re E.H. (2003) 108 Cal.App.4th
659, 670.)
We conclude that the juvenile court’s exercise of
dependency jurisdiction over Santiago—and, under subdivision
(j), Joan—is proper for two reasons.
First, the Department appropriately relied on the
presumption in subdivision (a) of section 355.1, and the parents
did not adduce sufficient evidence to burst its bubble. The
presumption was appropriately applied in the first instance
because the Department introduced competent expert testimony
from doctors that Santiago’s injury was either caused by
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intentional blunt force trauma or by a fall from a height of three
to four feet. This is substantial evidence of an injury that “would
ordinarily not be sustained except as the result of the
unreasonable or neglectful acts or omissions” of the parents, who
admitted to having Santiago in their care and custody at the
likely time of his injury. (§ 355.1, subd. (a).) Unless rebutted, the
presumption is “prima facie evidence” that jurisdiction was
appropriate under subdivision (b) of section 300. (Ibid.)
Mother and father did not thereafter introduce any
evidence that would “support a finding of” an alternative cause of
Santiago’s injury. They offered a barrage of inconsistent
accounts of how Santiago was injured, none of which would cause
the type of injury he actually sustained. They also did not
introduce any contrary expert testimony that any of their
proffered causes could have actually caused that injury. Instead,
mother and father introduced evidence that (1) neither the
pertinent charging authority nor the investigating officer felt that
they should be criminally prosecuted for child abuse, in part
because Santiago was in “many hands” the weekend he was
injured, and the investigator did not even require father to sit for
a lie detector examination; (2) mother and father were church-
going individuals who did not use alcohol or drugs, had no
reported history of domestic violence, no reported history of
mental illness, and no reported child welfare history; (3) father
had a good relationship with Joan; and (4) the juvenile court
opted not to remove the children from the parents’ custody at the
dispositional hearing. This evidence did not rebut the
presumption. To begin, this evidence did not raise any issue as to
the actual cause of the injury. At most, it was evidence regarding
the general fitness of the home, but the juvenile court acted
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within its discretion in finding that it was too ephemeral to
“‘support a finding’” of the “‘nonexistence of the presumed fact’” of
injury or risk of injury. (G.Z., supra, 85 Cal.App.5th at p. 884.)
The opinion of the prosecuting authority is of little to no weight
because criminal prosecutions have a higher burden of proof;
what is more, child abuse crimes require proof of intentional or
criminally negligent conduct, standards higher than the
negligence required in dependency cases. (In re L.K. (2011) 199
Cal.App.4th 1438, 1445; Pen. Code, § 273a, subd. (a).) Along
similar lines, the juvenile court’s decision not to remove the
children does not somehow undercut its jurisdictional finding;
removal requires proof of substantial danger to a child by clear
and convincing evidence (§ 361, subd. (c)); jurisdiction requires
proof by a preponderance of the evidence (§ 355). The parents’
status as “first-timers” in the dependency system and otherwise
upstanding members of their community, while commendable,
are not relevant to explain the cause of Santiago’s injury; the
same is true of father’s good relationship with Joan. Neither is
evidence that rebuts the presumption.
Second, and even if we assume that mother and father
adduced sufficient evidence to counter—and hence dispel—the
presumption, substantial evidence still supports the juvenile
court’s ruling, even if the burden of proof remained on the
Department. Here, there was expert medical testimony that
Santiago’s injuries were caused either by intentional blunt force
trauma or a fall from a substantial height due to parental
negligence. The record also contained evidence that father
watched Santiago for 90 minutes, that Santiago was crying and
father looked nervous at the end of that period, that father
sometimes became frustrated with the children, and that neither
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father nor mother was forthcoming about father’s “solo”
supervision or these other facts. (See D.P. (2014), supra, 225
Cal.App.4th at pp. 904-905 [even without presumption,
professional opinion of expert still creates an “inference” of injury
and risk, which, combined with other evidence, can support a
finding of jurisdiction].) The parents’ contrary evidence—detailed
above—at best created a conflict in the evidence, but we must
defer to the juvenile court’s resolution of those conflicts when
conducting substantial evidence review. (I.J., supra, 56 Cal.4th
at p. 773; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)
Father resists this conclusion with what boils down to three
arguments. His chief argument in his opening brief is that the
Department did not affirmatively prove that he injured Santiago
and did not prove that Santiago was at risk of harm. This
argument completely ignores the operation of the presumption in
section 355.1, subdivision (a), which establishes a prima facie
case for jurisdiction under section 300, subdivision (b)—a case
that includes proof of both injury and risk. (In re Rocco M. (1991)
1 Cal.App.4th 814, 820 [subdivision (b) “consists of three
elements: (1) neglectful conduct by the parent . . ; (2) causation;
and (3) ‘serious physical harm . . .’ to the minor, or a ‘substantial
risk’ of such harm . . .’”], abrogated on other grounds by In re R.T.
(2017) 3 Cal.5th 622.) Thus, the fact that the Department did not
affirmatively prove these elements is irrelevant because they
were satisfied by the unrebutted presumption.
Second, father argues that the juvenile court’s orders at the
detention hearing releasing the children to mother’s custody
(with monitored visitation for father) “cannot be reconciled” with
a conclusion that substantial evidence supports the finding that
Santiago’s injury was caused by parental negligence and that the
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court’s decision to not remove the children at the dispositional
hearing supports his assertion that jurisdiction was
inappropriate. As we pointed out, the required showings for the
assertion of jurisdiction and removal are different; if father’s
argument were valid, every case in which a juvenile court found
jurisdiction proper would necessarily require removal. This is
obviously not the law.
Third, father argues that the juvenile court only exerted
jurisdiction because “it believed that [the] parents would benefit
from counseling and parenting classes.” This mischaracterizes
the record. To be sure, the court required the parents to
participate in services, but those services were part of their
comprehensive case plans, which included requiring them to
make the children available to the Department and the minors’
counsel, to allow the Department to make unannounced visits to
the home, and to comply with medical appointments for the
children.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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