In re J.B. CA2/1 ( 2023 )

Filed 8/30/23 In re J.B. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
In re J.B. et al., B323563
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 22CCJP02444)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOSE R.,
Defendant and Appellant;
SANDRA B.,
Defendant and Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Daniel Zeke Zeidler, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant Jose R.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Respondent Sandra B.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
_____________________
Appellant Jose R. (Father) challenges the juvenile court’s
assertion of jurisdiction over his children J.B., M.B., and A.M.
under Welfare and Institutions Code1 section 300, the court’s
dispositional orders, and the court’s issuance of a restraining
order protecting Sandra B. (Mother) and the children from
Father. The court assumed jurisdiction over the children, and
issued its removal order, based on Father’s perpetration of
domestic violence against Mother, Father’s abuse of M.B., and
Father’s substance abuse. We find that substantial evidence
supports the juvenile court’s jurisdictional order and that
Father’s arguments against the disposition orders lack merit.
Thus, we affirm those orders. Father’s notice of appeal did not
encompass the restraining order, and Father has failed to provide
us with an adequate record to review the order. We therefore
dismiss Father’s appeal of the restraining order.
1 Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Family
Mother and Father were married in 2012 and they lived
with their two children, M.B. (born in 2015) and A.M. (born in
2020), and Mother’s older child J.B. (born in 2005). Maternal
grandmother, along with a maternal aunt and her children, also
lived in the home.
B. DCFS Investigation
On May 26, 2022, respondent Los Angeles County
Department of Children and Family Services (DCFS) received a
referral alleging that Mother was leaving the house with A.M.
but Father did not want them to leave. Mother got into her car
with A.M. and Father climbed onto the hood, smashed the
windshield, and tried to pry it loose. According to the reporting
party, Mother called 911 to have Father arrested.
On June 3, 2022, a social worker went to the house where
she interviewed Father, Mother, maternal grandmother, the
maternal aunt, J.B., and M.B.
Mother confirmed the report regarding the May 26, 2022
incident. According to Mother, she and A.M. were getting ready
to leave the home, and Father did not want them to leave.
Mother got in the car with A.M., and Father then slashed the
tires. A.M. was on Mother’s lap, and Mother feared the child
would be hurt, which prompted her to call 911. While she was
speaking with the 911 operator, Father repeatedly punched the
windshield and was eventually able to break it. When police
officers arrived, they arrested Father.
Father admitted to breaking the car windshield. He stated
that he and Mother had been arguing and he did not want
Mother to leave the home. He at first claimed that none of the
3
children was present during the incident, but in another
interview several days later he acknowledged that A.M. was in
the car.
Mother, maternal grandmother, and the maternal aunt all
suspected that Father was abusing drugs. He would stay in the
garage for long periods of time. He did not allow Mother to go
into the garage, but once Mother did go inside and found crystal
methamphetamine and pipes for smoking the drug. Mother
believed that Father had supplied the eldest minor J.B. with
marijuana. Mother, the maternal aunt, maternal grandmother,
and the children would stay out of the home for long periods of
time to avoid Father. Maternal grandmother took care of A.M.
while Mother worked but did so outside of the family home to
avoid contact with Father.
During the social worker’s first visit, Father denied using
any drugs other than marijuana, refused to submit to drug
testing, and refused to grant the social worker access to the
garage. However, during a further interview about two weeks
later, Father admitted that he had been using methamphetamine
for about six months, and had more recently started using crack
cocaine and “drinking [alcohol] to excess to cope” with stress.
Mother, Father, and the maternal aunt had bought the
house a year earlier; Mother and the maternal aunt wanted to
sell the house, but Father did not. This was causing strife.
Father was not working, but Mother was. According to Mother,
Father was supposed to make improvements to the house and he
had made some, but he kept asking for more money to do the
work, and Mother suspected he was using the money to buy
drugs.
4
Mother told the social worker that she wanted to end her
relationship with Father. Mother and the maternal aunt had
found an apartment, but it would not be available until August
2022. Mother told Father that she did not want to continue
living in the home with him, but Father refused to move out.
J.B. denied feeling unsafe in the home. He stated Father
was not working which caused more stress in the home because
Mother had to work more. J.B. admitted to smoking marijuana
in the past but denied that Father had supplied the drug.
M.B. stated that Father had “hit [him] in the head a lot of
times and it makes [him] cry because it hurts,” and he cried when
he talked about it. M.B. indicated that when he was in trouble,
Father would hit him in the head; he stated that it happened a
lot, and he told Mother about it, and she would then speak to
Father. M.B. stated that he was scared of Father “because he’s
going to hit [him].”
Father acknowledged “slap[ping] [M.B.] to the head or the
back of [the] head,” but claimed that he had never left any marks
or bruises on M.B. and that M.B. did not complain to him about
pain. Father acknowledged that DCFS had previously
investigated reports that he physically abused J.B. and that
during that previous investigation the social workers had
instructed him to not discipline in that manner, but he did not
think it was improper.2 However, Father agreed to refrain from
disciplining the children physically this time.
2 DCFS had received a prior referral in 2014, in which the
reporting party alleged Father engaged in domestic violence
against Mother which J.B. sometimes witnessed. DCFS deemed
its investigation inconclusive, because Father and Mother denied
5
At the conclusion of the social worker’s visit on June 3,
2022, Mother decided she would leave the family’s home to
ensure the children’s safety. A few days later, Mother notified
DCFS that she and the children had moved into an apartment,
and she was planning to divorce Father.
C. DCFS Obtains a Protective Custody Warrant
On or about June 17, 2022, DCFS applied under
section 340, subdivision (b) for a protective custody warrant
removing M.B. and A.M. from Father’s custody. DCFS sought
the warrant based on its claim that M.B. and A.M. were at risk of
physical abuse and their physical environment posed a threat to
their health or safety. In support, DCFS submitted a declaration
from the social worker who had conducted the investigation
described above setting forth the facts gathered during that
investigation.
The court granted the protective warrant on June 20, 2022,
removing M.B. and A.M. from Father’s custody and releasing
them to Mother.
D. Petition and Detention
On June 23, 2022, DCFS filed a section 300 petition on
behalf of all three children (J.B., M.B., and A.M.) based on the
May 26, 2022 incident in which Father attacked the car while
Mother and A.M. were inside it, Father’s history of striking M.B.
on the head, and Father’s substance abuse. DCFS asserted
claims under subdivisions (a), (b)(1) and (j) of section 300 based
there had been any domestic violence, but J.B. did state that
Father disciplined him by hitting him on the head when he made
mistakes. A social worker counseled Father and Mother to
refrain from using physical discipline.
6
on Father’s alleged conduct and Mother’s alleged failure to
protect the children from Father.
On July 8, 2022, the juvenile court held a detention hearing
at which it found a prima facie case that the children were
children described under section 300, subdivisions (a), (b)(1) and
(j) and vested DCFS with temporary placement and custody. The
court found Father to be the presumed father of all three
children.3 It also found it had no reason to know that the
children were “Indian children” as defined in the Indian Child
Welfare Act of 1978 (25 U.S.C. § 1901 et seq.).4 The court
ordered the children detained from Father and released to
Mother’s home. The juvenile court ordered monitored visitation
for Father with J.B. at least one hour per week and with M.B.
and A.M. a minimum of twice per week for two hours each time;
the visits were to be in a neutral setting and Mother was not
allowed to be present. The court ordered Father to undergo
weekly, random, and on-demand drug and alcohol testing.
Mother and Father denied the allegations of the petition.
E. DCFS Continues Its Investigation
In a jurisdiction/disposition report filed on August 9, 2022,
DCFS provided the court information from additional interviews
it had conducted. J.B. stated that he was afraid because Father
had found out where Mother and the children were living and
“will barge in any of these days. I don’t know what he’ll do.”
3 The court found that another individual, who could not be
located and is not involved in this appeal, to be the alleged father
of J.B.
4 Father, Mother, and the maternal aunt all denied any
known Indian ancestry.
7
However, J.B. indicated that he felt safe during monitored visits
with Father.
Mother reported that Father had been sending her more
than 50 text messages a day, and some were threatening, erratic,
and demeaning towards her. DCFS submitted screenshots of text
messages from Father to Mother and to DCFS.5 Mother also
indicated that Father would call her at work repeatedly.
Regarding the incident on May 26, Mother stated that she was
trying to leave the house with A.M. before Father woke up.
However, Father awoke and wanted to spend time with A.M., and
became angry when Mother insisted on leaving. Mother also
clarified that Father had let the air out of the tires, instead of
slashing them.
Mother stated that M.B. had difficulty with reading, and
Father would hit him on the back of the head if he said a word
incorrectly. Father would hit M.B. on the head with an open
hand, and M.B. would cry each time he was hit. Mother denied
that Father would hit the children for any other reason.
Father tacitly acknowledged that he made derogatory
statements about Mother during his phone calls with the
children. Social workers reported that during phone calls with
5 Father’s texts included the following: “You f****** stupid
b**** who the f*** you think I am[.] Don’t take too long because
my family is going to be waiting or you just want me to set the
house on fire.” “[M]orning family of psychopath you haven’t let
me speak to my boy over the phone and I woke up wanting to f***
with your whole day.” “You can pray to God for forgiveness all
you want but I’m praying that he punished you and all your
f****** family the worst possible way.” “B**** child support is
the only way you going to put me in jail you f****** b****.”
8
them Father behaved erratically. During one call, Father
claimed the court had not ordered him to undergo drug testing,
and the social worker told him that was not correct.
According to Mother, on July 20, 2022, Father had visited
the children in a park even though the social worker, who was
going to monitor the visit, had cancelled; Mother had already
brought the children to the park and allowed Father to go
through with the visit.
During a phone call with M.B., Father commented on the
dependency case, cursed throughout the conversation, and
suggested that M.B. was lying at Mother’s request.
Father arrived late to two in-person visits with the children
and complained to the children about the social workers and the
dependency case, despite the social worker’s requests that he
stop. Father told M.B. that the car windshield broke because of
his weight, but he was embarrassed so he told the police that he
had broken it with his fist. Father blamed maternal
grandmother and Mother for the family’s problems. The social
worker cut short one visit after Father complained that Mother
was using the children against him and stated, “I was tricked
into raising a son that I shouldn’t want to raise.”
In a last minute information report filed on August 17,
2022, DCFS indicated that it had attempted without success to
schedule an interview with Father. In a further interview, J.B.
stated that he had smoked marijuana with Father about five
times, beginning around December 2021, and that Father kept
marijuana in the garage “in plain sight.”
Along with its last minute information, DCFS submitted a
copy of the police report regarding the May 26, 2022 incident.
According to the report, when the officers arrived they found
9
Father sitting on the hood of the car with his hands bleeding, and
they observed “significant damage” to the front windshield. The
officers took Father into custody after Mother made a citizen’s
arrest. Mother told the officers that Father had deflated the tires
but did not puncture them.
DCFS also reported that Father failed to show up for a
drug test scheduled for August 11, 2022.
DCFS filed another last minute information report on
August 18, 2022, in which it informed the court that Father
acknowledged he had seen the children without a monitor on
August 14. Mother and J.B. apparently denied this had occurred,
but Mother stated that Father had come by her home on
August 12 to drop off some things for the children, and she
allowed him to speak with M.B. for about five minutes; Mother
was scared, in part because she had not told Father where she
was living.
F. Adjudication and Mother’s Request for a Restraining
Order
At the adjudication hearing on August 18, 2022, Father’s
counsel urged the court to dismiss the allegations against him.
Counsel indicated that Father did not purposefully break the
windshield and the windshield broke because it was weak.
Counsel further indicated that Father denied that he left marks
on M.B., or that M.B. complained about pain after being hit.
Finally, counsel argued that there was no “nexus” between
Father’s alleged drug use and any risk of harm to the children.
The juvenile court sustained the petition under section 300,
subdivisions (a), (b)(1), and (j), based on Father’s domestic
violence against Mother, his physical abuse of M.B., and his
substance abuse, and under subdivisions (b)(1) and (j) based on
10
Mother’s failure to protect M.B. and A.M. from Father’s
substance abuse and her failure to protect all the children from
Father’s domestic violence against her and from child abuse.6
The court found that the children were children described in
section 300, subdivisions (a), (b) and (j), declared them to be
dependents of the court, and placed them in Mother’s home under
DCFS supervision.
With respect to disposition, the children’s counsel
requested Father’s case plan include a domestic violence program
and that his visits occur at a DCFS office. DCFS also requested
that Father’s visits occur at a DCFS office. Father objected to
participating in a domestic violence program and requested
individual counseling instead. Father also requested that his
visits occur somewhere other than a DCFS office; if the visits
were at a DCFS office, Father requested that DCFS pay for
parking.
The court found by clear and convincing evidence that it
was reasonable and necessary to remove the children from
Father’s custody, it would be detrimental to the children to
return them to Father, and DCFS had made reasonable efforts to
prevent removal. The court ordered monitored visitation for
Father at a neutral location “starting at [the] DCFS office or
visitation center,” to take place at least two hours twice per week,
6 As requested by DCFS, the court amended the petition to
delete the reference to Mother being a culpable party in the count
under section 300, subdivision (a) regarding Father’s physical
abuse of M.B. However, the court sustained the count under
subdivision (b)(1) based on Mother’s failure to protect the
children from Father’s child abuse.
11
with DCFS to pay for parking if the visits were at the DCFS
office.
The court also ordered enhancement services for Father,
including a drug program, on-demand drug testing, parenting
classes, anger management classes if recommended by a
therapist, a domestic violence program, and individual counseling
to address case issues such as parenting.
Finally, Mother requested the court grant a temporary
restraining order (TRO) protecting her and the children from
Father. Counsel for the children and DCFS also urged the court
to issue the TRO. Father objected to the TRO and requested a
stay-away order instead and asked that the children be left out of
the order. The juvenile court granted the TRO protecting both
Mother and the children, with the TRO permitting Father to
have monitored visitation with the children at least two hours
twice a week. The court set a hearing on Mother’s application for
a permanent restraining order7 for September 12, 2022.
G. Post-disposition Proceedings
On September 8, 2022, Father filed a section 388 petition in
propria persona requesting the court change its restraining order
and monitored visitation order. Father claimed he was being
“detached” from his children which was “devastating for [J.B.],”
and the events had “been life changing for our family.” He
7 A juvenile court is authorized to issue a temporary
restraining order without notice (§ 213.5, subds. (a) & (c)(1)) and
to issue a restraining order with a duration of up to three years
after notice and a hearing (id., subd. (d)). To distinguish these
two types of restraining orders, we refer to a restraining order
issued after notice and a hearing as a “permanent” restraining
order.
12
requested that the court dismiss the case and make his
completion of the various programs it had ordered voluntary
instead.
The juvenile court denied Father’s section 388 petition on
September 12, 2022, finding there was no new evidence, the
proposed change of order was not in the children’s best interests,
and Father had counsel.
That day, the court also held a hearing on Mother’s request
for a permanent restraining order and granted the request,
issuing an order protecting Mother and the children from Father
until September 10, 2025. As with the TRO, the court allowed an
exception for monitored visitation by Father.
On September 12, 2022, Father filed a timely appeal of the
juvenile court’s August 18, 2022 orders.
H. Post-appeal Events
On February 7, 2023, the juvenile court terminated
jurisdiction as to J.B. as he had turned 18; he remained released
to Mother. On the same day, the juvenile court terminated
jurisdiction as to M.B. and A.M. given that the conditions which
justified the initial assumption of jurisdiction no longer existed
and were not likely to exist if supervision was withdrawn. The
juvenile court issued a custody order granting sole legal and
physical custody to Mother and monitored visits to Father.8
8 No party argues the juvenile court’s subsequent
termination of jurisdiction renders this appeal moot. DCFS does,
however, contend that Father’s challenge to dependency
jurisdiction is not justiciable because Mother did not contest the
allegation that she had failed to protect the children from
Father’s substance abuse. We address the merits of Father’s
13
DISCUSSION
A. Standard of Review for Jurisdictional and
Dispositional Orders
We review a juvenile court’s jurisdictional and dispositional
findings for substantial evidence. (In re I.J. (2013) 56 Cal.4th
766, 773.) Under this standard, “ ‘we determine if substantial
evidence, contradicted or uncontradicted, supports [the findings].
“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.” ’ ”
(Ibid.) We will affirm a judgment if it is supported by substantial
evidence “even though substantial evidence to the contrary also
exists and the trial court might have reached a different result
had it believed other evidence.” (In re Dakota H. (2005) 132
Cal.App.4th 212, 228.) “However, ‘[s]ubstantial evidence is not
synonymous with any evidence. [Citation.] To be substantial,
the evidence must be of ponderable legal significance and must be
appeal because even if the issues presented are moot given
Mother’s concession and/or the termination of jurisdiction, the
issues raised by Father may have impacted the court’s exit order
denying Father custody and providing him only monitored
visitation. (In re D.P. (2023) 14 Cal.5th 266, 285-288.) Father
has filed a separate appeal of the exit order, which is pending.
(Los Angeles County Department of Children and Family Services
v. Jose R., B326915.)
14
reasonable in nature, credible, and of solid value.’ [Citations.]”
(In re Cole L. (2021) 70 Cal.App.5th 591, 602.)
Given that the dispositional finding must be supported by
clear and convincing evidence, “when there is a substantial
evidence challenge, the reviewing court must determine whether
the record contains substantial evidence from which a reasonable
trier of fact could find the existence of that fact to be highly
probable.” (In re V.L. (2020) 54 Cal.App.5th 147, 149; see
Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996 [“when
reviewing a finding that a fact has been proved by clear and
convincing evidence, the question before the appellate court is
whether the record as a whole contains substantial evidence from
which a reasonable fact finder could have found it highly
probable that the fact was true”].)
Finally, Father challenges the juvenile court’s order
requiring him to participate in a domestic violence program and
its order regarding monitored visitation. We review both orders
for abuse of discretion. (In re Briana V. (2015) 236 Cal.App.4th
297, 311; In re D.P. (2020) 44 Cal.App.5th 1058, 1070.)
B. Substantial Evidence Supported the Juvenile Court’s
Assertion of Jurisdiction
1. Applicable Law
At the jurisdictional stage, the juvenile court must
determine by a preponderance of the evidence if a child is
described by section 300. (§ 355, subd. (a); Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 248.) The juvenile court here
asserted jurisdiction under subdivisions (a), (b)(1), and (j) of
section 300.
Subdivision (a) of section 300 authorizes juvenile court
jurisdiction in situations where “[t]he child has suffered, or there
15
is a substantial risk that the child will suffer, serious physical
harm inflicted nonaccidentally upon the child by the child’s
parent or guardian.” (Ibid.) “ ‘Nonaccidental’ generally means a
parent or guardian ‘acted intentionally or willfully.’ ” (In re Cole
L., supra, 70 Cal.App.5th at p. 601, quoting In re R.T. (2017) 3
Cal.5th 622, 629.)
As relevant here, subdivision (b)(1) of section 300
authorizes dependency jurisdiction where, “The child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of any of the
following: [¶] (A) The failure or inability of the child’s parent . . .
to adequately supervise or protect the child. [¶] (B) The willful
or negligent failure of the child’s parent . . . to adequately
supervise or protect the child from the conduct of the custodian
with whom the child has been left. [¶] . . . [¶] (D) The inability
of the parent . . . to provide regular care for the child due to the
parent’s . . . mental illness, developmental disability, or
substance abuse.” (Id., subd. (b)(1)(A), (B) & (D).)9
A child is subject to the juvenile court’s jurisdiction under
subdivision (j) of section 300 if “[t]he child’s sibling has been
abused or neglected, as defined in [other subdivisions of the
section], and there is a substantial risk that the child will be
abused or neglected, as defined in those subdivisions. . . .” (Ibid.)
9 Section 300 was amended effective January 1, 2023.
(Stats. 2022, ch. 832, § 1.) The amendments are immaterial to
the issues presented in this case, and we will refer to the current
version of the statute. Current subdivisions (b)(1)(A)-(D) were
formerly set forth in subdivision (b)(1) without separate
designation.
16
Where, as here, a section 300 petition alleges multiple
grounds for jurisdiction, we can affirm the juvenile court’s
assertion of jurisdiction if substantial evidence supports any of
the alleged grounds for jurisdiction. (In re D.P., supra, 14 Cal.5th
at p. 283.) As we explain below, substantial evidence supports
the juvenile court’s assertion of jurisdiction under subdivision (a)
of section 300, based on Father’s domestic violence against
Mother, and Father’s physical abuse of M.B. Father’s domestic
violence, along with his substance abuse, also supports the
court’s assertion of jurisdiction under subdivision (b)(1)(A) of
section 300. We accordingly need not, and do not, address the
assertion of jurisdiction under subdivision (j) of section 300. (In
re D.P., supra, at p. 285.)
2. Substantial Evidence Supported the Assertion of
Jurisdiction under Section 300, Subdivision (a)
a. The May 26, 2022 Incident
An incident of domestic violence can support a finding that
a child is in danger of being injured “nonaccidentally” within the
meaning of subdivision (a) of section 300 where, as here, the child
was present and was at risk of physical injury. (In re Nathan E.
(2021) 61 Cal.App.5th 114, 121-122; In re M.M. (2015) 240
Cal.App.4th 703, 720-721.)
The evidence shows that, on May 26, 2022, Father reacted
angrily when he found out that Mother was going to leave the
house with A.M.; Mother then locked herself and A.M. in the car,
and Father responded by deflating the car’s tires, climbing onto
the hood of the car, smashing the windshield, and prying it open
with his hands. There was substantial evidence that Father
smashed the windshield intentionally and not accidentally, and
17
his shattering of the glass placed A.M., who was inside the car
throughout this entire incident, at risk of serious injury.
Father argues the May 2022 incident “was isolated and
unlikely to recur.” In support, he points out that there was no
evidence he threatened Mother prior to the May 2022 incident.
He also notes that Mother ended her relationship with him and
moved to a separate residence with the children by the time of
the jurisdiction hearing.
These arguments do not persuade us that the juvenile court
erred. “Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
[citations], the court need not wait until a child is seriously
abused or injured to assume jurisdiction and take steps necessary
to protect the child. [Citations.] The court may consider past
events in deciding whether a child presently needs the court’s
protection. [Citations.] A parent’s ‘ “[p]ast conduct may be
probative of current conditions” if there is reason to believe that
the conduct will continue.’ [Citations.]” (In re Cole L., supra, 70
Cal.App.5th at pp. 601-602.) That is the situation here.
There is substantial evidence that the May 2022 incident
was caused by factors which continued to exist at the time of the
jurisdiction hearing. Specifically, there was evidence that
Father’s substance abuse triggered the incident, both in terms of
causing the parents’ strife and Father’s extreme behavior during
the incident, and that Father continued to abuse drugs after the
dependency case was filed. Father refused to acknowledge the
severity of the incident, and instead maintained his dubious
claim that the windshield broke under his weight, not because he
tried to break it. “A parent’s denial of domestic violence increases
the risk of it recurring. [Citations.]” (In re V.L., supra, 54
18
Cal.App.5th at p. 156; see also In re Gabriel K. (2012) 203
Cal.App.4th 188, 197 [“One cannot correct a problem one fails to
acknowledge”].) Finally, after the parties separated and during
the dependency case, Father continued to engage in domestic
violence by harassing Mother with threatening and demeaning
texts and calls to her workplace.
b. Father’s Physical Abuse of M.B.
Father admitted to “slap[ping] [M.B.] to the head or the
back of [the] head.” M.B. stated that Father had “hit [him] in the
head a lot of times and it makes [him] cry because it hurts,” and
that he was scared of Father “because he’s going to hit [him].”
Mother reported that M.B. had difficulty with reading, and
Father would hit him on the back of the head until he said a word
correctly; Father would hit M.B. on the head with an open hand,
and M.B. would cry each time he was hit.
Such repeated abuse subjected M.B. to a risk of “serious
physical harm inflicted nonaccidentally” by Father. (§ 300,
subd. (a).) Section 300, subdivision (a) provides that “a court may
find there is a substantial risk of serious future injury based on
the manner in which a less serious injury was inflicted, a history
of repeated inflictions of injuries on the child or the child’s
siblings, or a combination of these and other actions by the
parent or guardian that indicate the child is at risk of serious
physical harm.” Here, there was evidence of an ongoing pattern
of physical abuse by Father against M.B. Father claims that his
strikes did not leave marks, but he does admit that he hit M.B. in
the head. Repeatedly hitting a child in the head can lead to
injuries without leaving any marks. Furthermore, the juvenile
court could reasonably infer from Father’s other behavior,
19
including the incident where he broke the windshield, that his
abuse of M.B. could have escalated.
Father points out that he agreed to restrain from physically
disciplining the children in the future. However, the juvenile
court could have reasonably concluded that Father was not
credible in this regard. Father acknowledged that DCFS had
previously investigated reports that he struck J.B. in the head as
discipline, and that social workers had instructed him to not
discipline in that manner. Despite this, he did the same thing to
M.B., and when questioned about his conduct he told social
workers he did not think his use of force against the children was
improper.
Father argues his case is like In re D.M. (2015) 242
Cal.App.4th 634, 637, where “[the] mother used her hand or a
sandal to spank her two children on the buttocks on those ‘rare’
occasions when lesser disciplinary measures proved ineffective,
but never hard enough to leave bruises or marks,” and the Court
of Appeal concluded that the juvenile court improperly asserted
jurisdiction under subdivision (a) of section 300 “without first
examining whether [the mother’s] conduct falls outside the right
of parents, which exists elsewhere in California civil and criminal
law, to discipline their children as long as the discipline is
genuinely disciplinary, is warranted by the circumstances, and is
reasonable (rather than excessive) in severity.” (In re D.M.,
supra, at p. 637.)
In re D.M. does not apply here for two basic reasons. First,
the holding of that case was based, in part, on the Legislature’s
decision to treat spanking differently from other types of physical
discipline. (In re D.M., supra, 242 Cal.App.4th at p. 640.) Thus,
subdivision (a) of section 300 provides that “ ‘serious physical
20
harm’ does not include reasonable and age-appropriate spanking
to the buttocks if there is no evidence of serious physical injury.”
Here, Father hit M.B. on the head, not the buttocks. Father does
not identify any case in which a court has concluded repeatedly
hitting a child in the head can constitute proper discipline.
Second, there is substantial evidence that Father’s blows to
M.B.’s head were not warranted by the circumstances or
genuinely disciplinary. Father did not physically discipline M.B.
for misbehavior after lesser discipline proved ineffective; he
repeatedly hit M.B. on the head when the child (who had
difficulty reading) failed to pronounce words correctly.
3. Substantial Evidence Supported Assertion of
Jurisdiction under Section 300, Subdivision (b)(1)(A)
a. Father’s Substance Abuse
Contrary to Father’s claim, there is substantial evidence
that, due to his substance abuse, Father was unable “to
adequately supervise or protect the child[ren]” and thus the
juvenile court properly found it had jurisdiction under
subdivision (b)(1)(A) of section 300.
Father admitted to using methamphetamine for about six
months, and to more recently using crack cocaine and drinking
alcohol to excess. The juvenile court could reasonably infer that
Father’s abuse of these substances led to his violent conduct on
May 26, 2022. The court could also reasonably infer that Father’s
substance abuse caused him to stay in the garage for long periods
of time and engage in behavior that frightened the other family
members. Mother, the maternal aunt, and maternal
grandmother all stated that they and the children stayed out of
the house for as long as they could due to Father’s behavior.
21
Furthermore, the court could reasonably conclude that
Father’s substance abuse continued unabated, and that he was
either unwilling or unable to stop. Father refused to undergo
drug testing, and then incorrectly told a social worker that the
court had not ordered him to submit to testing. Father was
finally scheduled to take a drug test a week before the
adjudication hearing, but he failed to show up.10
Father relies on In re Drake M. (2012) 211 Cal.App.4th 754,
762-763, disapproved on another ground in In re D.P., supra, 14
Cal.5th at p. 283, but that case is distinguishable. The father in
In re Drake M. used “medical marijuana.” (Id. at pp. 760, 769.)
The court concluded there was insufficient evidence to establish
jurisdiction under former subdivision (b)(1) of section 300
(current subdivision (b)(1)(A)) because there was no evidence the
father’s use of marijuana created any risk that the child would be
harmed. (In re Drake M., supra, at p. 769; see also In re Destiny
S. (2012) 210 Cal.App.4th 999, 1003 [jurisdiction improper where
there was no evidence “that [the child] was at risk of suffering
physical harm as the result of [the m]other’s use of illegal
drugs”].) Here, in contrast, there was substantial evidence that
10 Father contends in his brief that he “agreed to
voluntarily participate in a drug recovery program.” However,
what the record discloses is only that Father told a social worker
that he was willing to participate in such a program; the record
does not disclose any evidence that Father took any steps to
enroll in such a program or take any other steps to address his
substance abuse prior to the adjudication hearing.
22
Father’s substance abuse resulted in him being violent towards
Mother and A.M., among other problematic behaviors.11
b. Father’s Domestic Violence
The threat of a child being injured accidentally through
domestic violence can support jurisdiction based on a parent’s
failure “to adequately supervise or protect the child” within the
meaning of subdivision (b)(1)(A) of section 300. (In re T.V. (2013)
217 Cal.App.4th 126, 135; In re Heather A. (1996) 52 Cal.App.4th
183, 194.) The substantial evidence here that Father perpetrated
domestic violence against Mother and A.M. on May 26, 2022, and
that there was a significant risk of future domestic violence,
11 Father cites to another portion of the In re Drake M.
opinion in which the court addressed jurisdiction under what is
now subdivision (b)(1)(D) of section 300. (In re Drake M., supra,
211 Cal.App.4th at pp. 764-768.) That subdivision applies when
a parent or guardian is unable “to provide regular care for the
child due to the parent’s . . . substance abuse.” (§ 300, subd.
(b)(1)(D).) Although DCFS also asserted this ground for
jurisdiction in this case, we do not address it given our conclusion
that jurisdiction is supported under subdivision (b)(1)(A) of
section 300. Thus, we do not address the court’s holding in In re
Drake M. that to prove “substance abuse” under section 300,
subdivision (b)(1)(D) requires either a medical diagnosis of
substance abuse or evidence of symptoms that meet a clinical
definition of substance abuse. (See In re Drake M., supra, 211
Cal.App.4th at p. 766.) However, we note that other courts have
declined to adopt this approach. (See In re K.B. (2021) 59
Cal.App.5th 593, 601 [a juvenile court can find a parent abused
substances without a medical diagnosis or evidence that the
parent met the clinical definition of substance abuse]; In re
Rebecca C. (2014) 228 Cal.App.4th 720, 725-726 [same]; In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1218 [same].)
23
supported dependency jurisdiction under subdivision (b)(1)(A) of
section 300. As discussed above, Father’s arguments that there
was no substantial evidence that his domestic violence put the
children at risk of harm lack merit.
C. Father’s Challenge to the Juvenile Court’s Removal
Order Fails
Father challenges the juvenile court’s order removing the
children from his custody. We conclude that substantial evidence
supports the removal order.
1. The Applicable Law
To remove a child from parental custody, the juvenile court
must find by clear and convincing evidence that specified
circumstances are present justifying such a disposition. (§ 361,
subds. (c)(1) & (d).) Father was living with the children when
DCFS filed the petition, and therefore subdivision (c) of section
361 applies. Under subdivision (c)(1) of section 361, removal
from a parent is authorized when “[t]here 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 . . . physical custody.” The
statute lists two specific alternatives which the juvenile court
“shall consider” before removing a child from a parent’s custody:
“(A) The option of removing an offending parent . . . from the
home. [¶] (B) Allowing a nonoffending parent, guardian, or
Indian custodian to retain physical custody as long as that
parent, guardian, or Indian custodian presents a plan acceptable
to the court demonstrating that he or she will be able to protect
the child from future harm.” (Id., subd. (c)(1)(A) & (B).)
24
“Actual harm to a child is not necessary before a child can
be removed.” (In re V.L., supra, 54 Cal.App.5th at p. 154.) This is
because the focus of the statute is on averting harm to the child.
(In re D.B. (2018) 26 Cal.App.5th 320, 328; In re T.V., supra, 217
Cal.App.4th at pp. 135-136.) 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 as well as
present circumstances.” (In re Cole C. (2009) 174 Cal.App.4th
900, 917.)
2. The Juvenile Court’s Removal Order Was Proper
Father only challenges the juvenile court’s removal order
by arguing, “Instead of removing the minors from . . . [F]ather,
the juvenile court should have offered him services to assist him
in caring for the minors, such as preservation services, family
therapy, or wraparound services. In particular, . . . [F]ather
needed drug treatment and housing assistance.”
Father has forfeited this argument because he never
proposed these steps to the juvenile court. Instead, Father only
objected to being ordered to participate in a domestic violence
program, and requested that visitation not be required to take
place at a DCFS office or he receive assistance paying for his
parking at the DCFS office. Parties, including parents in
dependency cases, are not permitted to raise issues for the first
time on appeal that could have been raised in the trial court.
“[A]ny other rule would permit a party to trifle with the courts”
by “deliberately stand[ing] by” without making an objection, and
“thereby permit the proceedings to reach a conclusion in which
the party could acquiesce if favorable and avoid if unfavorable.”
(In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338, 1339 [“Many
dependency cases have held that a parent’s failure to object or
25
raise certain issues in the juvenile court prevents the parent from
presenting the issue to the appellate court”].) It is unfair to the
trial court and the other parties for an appellate court to consider
a defect that could have been presented to the trial court and
cured. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)
Even if we were to conclude that Father had not forfeited
his challenge to the removal order, we find no merit in his
argument. Father consistently failed to acknowledge the severity
of his conduct, repeatedly violated the juvenile court’s visitation
orders, and continued to abuse drugs. Under these
circumstances, we agree with Mother that it would have been
“unrealistic to think” services could have ameliorated Father’s
conduct sufficiently to make it safe for the children to be released
to his custody.
D. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Father to Participate in a Domestic
Violence Program
Father challenges the juvenile court’s order requiring him
to participate in a domestic violence program. We conclude that
the court did not abuse its discretion in making the order.
A juvenile court may make “all reasonable orders for the
care, supervision, custody, conduct, maintenance, and support of
the child.” (§ 362, subd. (a).) Section 362, subdivision (d)
specifically authorizes a juvenile court to “direct any reasonable
orders to the parents” of a dependent child “includ[ing] a
direction to participate in a counseling or education program,”
provided that the “program in which a parent or guardian is
required to participate shall be designed to eliminate those
conditions that led to the court’s finding that the child is a person
described by [s]ection 300.” (Ibid.) “ ‘The juvenile court has
26
broad discretion to determine what would best serve and protect
the child’s interests and to fashion a dispositional order
accordingly.’ ” (In re Briana V., supra, 236 Cal.App.4th at p. 311,
quoting In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)
Father argues that he did not need to participate in a
domestic violence program because the May 26, 2022 incident
was “isolated, unlikely to recur, and was the result of increasing
financial stress in the family.” However, as is discussed above,
there was substantial evidence that the factors which led to the
incident, which included Father’s substance abuse and the
parents’ substantial disagreements, were still present at the time
the court made its disposition orders. In addition, during the
dependency proceedings Father continued to exhibit abusive
behavior towards Mother, including through harassing texts and
phone calls.
E. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Monitored Visitation
Father contends the juvenile court abused its discretion in
restricting him to monitored visitation with the children, arguing
that the restriction was not in the best interests of the children.
Father’s contention is meritless.
“The power to regulate visits between dependent children
and their parents rests with the juvenile court . . . .” (In re D.P.,
supra, 44 Cal.App.5th at p. 1070.) When making an order for
visitation, the juvenile court must “balanc[e] . . . the interests of
the parent in visitation with the best interests of the child,” and
may “impose . . . conditions . . . in light of the particular
circumstances of the case before it.” (In re Jennifer G. (1990) 221
Cal.App.3d 752, 757.)
27
The juvenile court did not abuse its discretion in ordering
monitored visitation given that Father admitted to using
methamphetamine and cocaine, along with excessive amounts of
alcohol, and there was substantial evidence that Father was
continuing to use these substances. Furthermore, there was
evidence that Father was unable to control his anger and acted
violently. Monitored visitation was also appropriate given that
J.B. and M.B. both admitted to being afraid of Father. Finally,
having a monitor present was justified given that Father
repeatedly transgressed the court’s orders with respect to
visitation, behaved erratically during visits, complained directly
to the children about the dependency case, and badmouthed
Mother including telling the children she “tricked [him] into
raising” one of them.
F. Father’s Notice of Appeal Does Not Encompass the
Permanent Restraining Order
Father lastly challenges the permanent restraining order
issued by the juvenile court on September 12, 2022. Mother
contends that we lack jurisdiction to review the restraining order
because Father’s notice of appeal does not mention the juvenile
court’s issuance of that order nor purport to appeal from any
order issued on September 12, 2022. We agree.
While we must liberally construe a notice of appeal (In re
Joshua S. (2007) 41 Cal.4th 261, 272; Cal. Rules of Court, rule
8.405(a)(3)), “ ‘The policy of liberally construing a notice of appeal
in favor of its sufficiency [citation] does not apply if the notice is
so specific it cannot be read as reaching a judgment or order not
mentioned at all.’ [Citations.]” (In re J.F. (2019) 39 Cal.App.5th
70, 76.) Father’s notice of appeal does reference specific dates
and orders, but it does not reference the date of the restraining
28
order hearing or the restraining order. In addition, Father did
not designate the reporter’s transcript for the September 12, 2022
proceeding where the permanent restraining order hearing was
held and that order issued. Under these circumstances, his
notice of appeal cannot be read to include the court’s permanent
restraining order issued on September 12, 2022.12
Furthermore, even if we were to construe the notice of
appeal to include the restraining order, we would still have to
dismiss that portion of Father’s appeal because we lack an
adequate record, including the transcript of the hearing at which
the court issued the restraining order. An appellant’s “ ‘[f]ailure
to provide an adequate record on an issue requires that the issue
be resolved against [the appellant].’ [Citation.]” (Jameson v.
Desta (2018) 5 Cal.5th 594, 609.) Accordingly, we dismiss
Father’s purported appeal from the restraining order issued on
September 12, 2022.
12 To the extent Father purports to appeal from the
juvenile court’s issuance of the TRO, which was issued on
August 18, the appeal would be moot given that the TRO was
only effective until September 12, and the court later issued the
permanent restraining order.
29
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are
affirmed. We dismiss Father’s purported appeal of the
restraining order issued by the juvenile court on September 12,
2022.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
30