In re I.O. CA2/8

Filed 5/13/22 In re I.O. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re I.O., a Person Coming Under B312673
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 17CCJP02464F)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LAZARO O.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Annabelle G. Cortez, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louie, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Lazaro O., the father (Father) of I.O., appeals from the
juvenile court’s jurisdictional findings and a dispositional order.
I.O.’s mother (Mother) does not appeal. Father argues that
substantial evidence does not support the jurisdictional findings
and orders that I.O. is a person described by Welfare and
Institutions Code section 300, subdivisions (a) and (b), due to
Father’s actions.1 He further contends that the juvenile court
abused its discretion in ordering him to attend a domestic
violence counseling program as part of his reunification plan.
We find Father’s challenges to the juvenile court’s
jurisdictional findings as to him justiciable. We hold that
substantial evidence supports the juvenile court’s jurisdictional
findings based on domestic violence and, alternatively, on
Father’s failure to protect I.O. from Mother’s drug abuse.
Finally, we hold that the juvenile court did not abuse its
discretion by requiring Father to attend domestic violence
counseling as part of its dispositional order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Procedural Background
In October 2020, when I.O. was approximately five months
old, the Los Angeles County Department of Children and Family
Services (Department) filed a petition under section 300. The
Department had received a referral in connection with an open
case for I.O.’s half-sibling alleging drug use and domestic violence
by both of I.O.’s parents.
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2
That same month, the Department also filed a request for
removal of I.O. from both parents. The juvenile court authorized
the removal. Subsequently, the court ordered I.O. to remain
detained from her parents.
The section 300 petition alleged jurisdiction pursuant to
subdivision (a), “Serious Physical Harm,” subdivision (b)(1),
“Failure to Protect,” and subdivision (j), “Abuse of Sibling.” The
petition alleged that I.O’s parents had a history of engaging in
violent altercations, including a specific incident where Father
assaulted Mother, causing I.O.’s basinet to fall to the ground with
I.O. inside. Second, the Department further claimed that Mother
had a history of substance abuse, was a current abuser of
methamphetamine and amphetamine, had a positive drug test
for methamphetamine and amphetamine in September 2020, and
that Father knew or should have known of Mother’s substance
abuse but failed to protect I.O. The Department additionally
alleged that two of I.O.’s half siblings received permanent
placement services and three others were prior dependents of the
court due to Mother engaging in violent altercations with her
former companions and prior drug use.
In April 2021, the court held a combined adjudication and
disposition hearing. The court found that, as to Father, I.O. was
a person described by section 300, subdivision (a) and subdivision
(b)(1), due to his engaging in domestic violence and his failure to
protect I.O. from Mother’s drug abuse. The court declared I.O. a
dependent of the court and removed her from her parents.
The court ordered reunification services for Father only,
consisting of six months of drug and alcohol tests, individual
counseling to address “case issues, including [domestic violence]
and parenting,” and a separate domestic violence program.
3
Father timely appealed from the juvenile court’s two
jurisdictional findings as to him under section 300 and from the
court’s dispositional order requiring him to attend domestic
violence classes.
II. Evidence of Domestic Violence
There is no evidence that I.O. has suffered any physical
harm or illness from the alleged domestic violence.
The evidence as to domestic violence in the Department’s
initial petition is as follows: An unidentified reporter stated that
“[M]other shared that father is violent and hit her all the time.”
I.O.’s sibling’s designated adoptive parent told the social worker
that Mother stated that Father attacked her and “accidentally
dropped the bassinet with [I.O.] inside it.” Mother reported that
I.O. was not injured, and the adoptive parent knew of no other
domestic violence incidents between the couple. Mother told the
adoptive parent about the bassinet incident a few days prior to
September 1, 2020, but it is not clear exactly when this incident
took place.
In subsequent interviews by the social worker, all prior to
the juvenile court’s combined jurisdictional and dispositional
hearing, I.O.’s sibling’s adoptive parent told the social worker
that a neighbor “has told her in the past during domestic violence
incidents she’d run inside the family home to grab [the] child
during the physical incidents.” The social worker spoke with that
neighbor who reported that the parents argue but the neighbor
did not hear the parents engage in “physical altercations.” The
sibling’s adoptive parent also told the social worker that Mother
said that father wants to kill her and makes “signs” at her
indicating that he will shoot her. Both parents denied any
domestic violence.
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III. Evidence of Mother’s Drug Use and Father’s
Knowledge
Both Mother and Father have a history of drug use.
When the social worker first visited Mother in this matter, the
social worker observed a broken glass pipe on the couch that
Mother stated she used for tobacco and then later said Father
used for tobacco. Then, during the social worker’s initial
investigation, Mother failed a drug test just days after telling the
social worker she no longer used drugs (the test was positive for
amphetamine and methamphetamine). Mother failed to appear
for subsequent drug tests during the pendency of this case.
A witness told the social worker about an incident where Mother
appeared under the influence of drugs. The witness also said
that Mother admitted to the witness that she was still using
drugs. After her drug test came back positive, Mother told the
social worker that it was very hard to stop using
methamphetamine.
Father was a former user of methamphetamine, which he
said he used for about three years and went to a drug treatment
program to address. Father could not recall whether he had used
methamphetamine with Mother, but said that they may have
used it together once. Father was aware that Mother had a
history of using marijuana and methamphetamine.
IV. Prior Interactions with the Department
Before the referral to the Department regarding I.O.,
Mother had a lengthy history with the Department. According to
the Department’s petition, Mother has five other children that
had been involved in dependency proceedings. In total, from
2007 to 2017, the Department received eight referrals regarding
Mother’s first five children.
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Father has no prior history with the Department as a
parent. I.O. is not his biological child, but he has been with
Mother since she was pregnant with I.O. and he signed I.O.’s
birth certificate. The juvenile court found Father I.O.’s presumed
father.
DISCUSSION
I. Father’s Appeal Is Justiciable
An appellate court need not address jurisdictional findings
as to one parent when the findings as to the other parent are not
challenged. (In re Briana V. (2015) 236 Cal.App.4th 297, 308–
310 (Briana V.).) Such challenges are generally nonjusticiable
because a juvenile court may assert jurisdiction over a child
based upon finding that only one parent’s conduct triggers section
300. (Id. at p. 308; In re I.A. (2011) 201 Cal.App.4th 1484, 1489–
1495.) Accordingly, a reversal as to one parent, even if sustained,
would not require reversal of the jurisdictional findings. (Id. at
p. 1489.)
Nevertheless, we have discretion to address the merits of a
jurisdictional challenge by only one parent if the findings:
(a) serve as the basis for dispositional orders challenged on
appeal, (b) could be prejudicial to the appellant or potentially
impact current or future dependency proceedings, or (c) could
have other consequences for the appellant beyond jurisdiction.
(In re Drake M. (2012) 211 Cal.App.4th 754, 762 (Drake M.);
Briana V., supra, 236 Cal.App.4th at p. 309.)
Father argues that because the juvenile court’s finding of
domestic violence serves as the basis for the dispositional order
that he challenges in this appeal, we should address the merits.
We agree. “Although a dispositional order may reach both
parents . . . the order must nevertheless be ‘reasonable’ and
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‘designed to eliminate [the] conditions that led to the court’s
[still valid jurisdictional] finding.’ [Citations.]” (In re D.M.
(2015) 242 Cal.App.4th 634, 639 [jurisdictional finding that
mother intentionally inflicted serious physical harm was
justiciable where it served as the basis for two of three case plan
requirements].)
II. Substantial Evidence Supports the Juvenile Court’s
Jurisdiction as to Father Due to Domestic Violence
Father contends there is insufficient evidence supporting
the juvenile court’s jurisdictional findings as to him under section
300, subdivisions (a) and (b). We disagree. There is substantial
evidence of domestic violence involving a substantial risk of
serious harm to I.O.
Under section 300, subdivision (a), a juvenile court may
assert jurisdiction over a child if a “child has suffered, or there is
substantial risk that the child will suffer, serious physical harm
inflicted nonaccidentally upon the child by the child’s parent.”
(Ibid.)
Under section 300, subdivision (b)(1), a juvenile court may
also assert jurisdiction over a child if the “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 . . . to adequately supervise or protect the
child . . . .” (Ibid.)
“ ‘In reviewing the jurisdictional findings . . . , we look to
see if substantial evidence, contradicted or uncontradicted,
supports them. [Citation.] In making this determination, we
draw all reasonable inferences from the evidence to support the
findings . . . of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
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that issues of fact and credibility are the province of the trial
court.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633.)
Father makes two arguments. First, Father argues that
because the evidence of domestic violence is uncorroborated
hearsay, it cannot, by itself, constitute substantial evidence.
The Department does rely on hearsay evidence of Father’s
domestic violence. Yet, as Father admits, he failed to specifically
object to the admission of this hearsay. This failure to object is
fatal to his claim that we should reverse because the evidence
was hearsay and “[m]ere uncorroborated hearsay does not
constitute substantial evidence.” (Kevin R. v. Superior
Court (2010) 191 Cal.App.4th 676, 689, citing In re Lucero
L. (2000) 22 Cal.4th 1227, 1243.) At the jurisdictional hearing,
the “social study prepared by the petitioning agency, and hearsay
evidence contained in it, is admissible and constitutes competent
evidence upon which a finding of jurisdiction pursuant to Section
300 may be based.” (§ 355, subd. (b), italics added.) Only if “a
party to the jurisdictional hearing raises a timely objection to the
admission of specific hearsay evidence contained in a social study,
the specific hearsay evidence shall not be sufficient by itself to
support a jurisdictional finding or any ultimate fact upon which a
jurisdictional finding is based . . . .” (§ 355, subd. (c)(1), italics
added.)
Accordingly, because Father, while represented by counsel,
did not object to the hearsay evidence in the social study, the
juvenile court was entitled to rely on it. (See § 355, subd. (c)(1);
In re E.B. (2010) 184 Cal.App.4th 568, 577, disapproved on other
grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989 [father
failed to object to the hearsay in the social workers report, so
juvenile court was entitled to rely on it]); In re Tracy Z. (1987)
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195 Cal.App.3d 107, 113 [“If there is any substantial evidence,
contradicted or uncontradicted, which will support the judgment,
we must affirm. This is so even if the judgment is supported by
incompetent or otherwise inadmissible evidence admitted
without objection”]; cf. In re B.D. (2007) 156 Cal.App.4th 975, 981
[describing what constitutes a specific hearsay objection].)
Second, Father argues in the alternative that the physical
altercation between the parents resulting in Father accidentally
knocking over I.O.’s bassinet is an isolated incident that is
insufficient to support the juvenile court’s jurisdiction based on
domestic violence. We disagree. “Under certain circumstances
incidents of domestic violence between a child’s parents, if they
occur in the child’s immediate presence, may support a
jurisdiction finding under section 300, subdivision (a).” (In re
Cole L. (2021) 70 Cal.App.5th 591, 603 (Cole), citing In re
Giovanni F. (2010) 184 Cal.App.4th 594, 598–599.) “The nature
and circumstances of a single incident of harmful or potentially
harmful conduct may be sufficient, in a particular case, to
establish current risk depending upon present circumstances.”
(In re J.N. (2010) 181 Cal.App.4th 1010, 1026.)
Here, the incident of domestic violence that the juvenile
court mainly relied upon is sufficient evidence. Jurisdiction
“under section 300, subdivision (a), requires evidence of a risk of
physical injury ‘inflicted nonaccidentally upon the child.’ ”
(Cole, supra, 70 Cal.App.5th at p. 603.) It is the risk of injury
that is required, not actual infliction of injury. Where a parent
strikes the other parent while that parent is holding the child,
causing that child to fall, the Courts of Appeal have found this
standard is met. As Division Seven of our court recently noted,
“[f]or example, if a father strikes an infant’s mother while she is
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holding the child or an older child intervenes during a fight to
protect her mother from her father’s abuse, the risk of harm to
the child may be properly viewed as nonaccidental.” (Ibid., citing
In re M.M. (2015) 240 Cal.App.4th 703, 720 [substantial evidence
supported juvenile court’s finding where parents engaged in a
physical altercation with child at their feet].) Similar
circumstances were present here.
Moreover, the social worker’s report cites additional
evidence, described above, as to domestic violence, which the
court cited for its jurisdictional finding, along with what the
juvenile court characterized as “severe minimizing” of the
incident where the bassinet was knocked over by both parents.
The juvenile court “need not wait until a child is seriously abused
or injured to assume jurisdiction and take the steps necessary to
protect the child.” (In re R.V. (2012) 208 Cal.App.4th 837, 843.)
In sum, substantial evidence supports the juvenile court’s
finding of jurisdiction based upon risk to I.O. from Father’s
domestic violence.
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III. Substantial Evidence Supports the Juvenile Court’s
Jurisdiction Due to Father’s Failure to Protect I.O.
from Mother’s Drug Use2
Father also challenges the juvenile court’s jurisdictional
finding under section 300(b)(1) due to his alleged failure to
protect I.O. from Mother’s drug use.
2 Having found substantial evidence to support the juvenile
court’s jurisdiction based on Father engaging in domestic
violence, we are not required to address the second reason the
court found jurisdiction. (See In re Alexis E. (2009) 171
Cal.App.4th 438, 451 (Alexis E.) [noting that because it upheld
the juvenile court’s finding of jurisdiction on the basis of father’s
domestic violence, it need not review the additional basis for
jurisdiction of father’s drug use]; see also Randi R. v. Superior
Court (1998) 64 Cal.App.4th 67, 72; In re Jonathan B. (1992) 5
Cal.App.4th 873, 875–876.) To conserve judicial resources in the
event of any further review of this case, we exercise our
discretion to address the second basis for jurisdiction. Courts of
Appeal may review the merits of a second jurisdictional finding
as to one parent even after first upholding the juvenile court’s
jurisdiction regarding that same parent on another basis.
(See, e.g., Alexis E., supra, 171 Cal.App.4th at p. 451 [upholding
finding of jurisdiction as to father based on domestic violence,
and additionally reviewing appeal of jurisdiction based on
father’s drug use]; In re L.O. (2021) 67 Cal.App.5th 227, 238
[upholding jurisdictional finding that father failed to protect
children from domestic violence, and also choosing to review
second jurisdictional basis of sexual abuse].) This court has also
reviewed challenges by one parent as to two different findings of
jurisdictions against that same parent. (In re Christopher M.
(2014) 228 Cal.App.4th 1310, 1316–1317 [reviewing one parent’s
challenges to findings of failure to provide for child generally and
of failure to provide for child only at time of hearing].)
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Subsection (b)(1) applies to the failure of a parent to protect
a child from another parent’s substance abuse, providing for
jurisdiction where “[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 willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child from the conduct of the custodian with whom the child has
been left.” (§ 300, subd. (b)(1).) “The provision of a home
environment free from the negative effects of substance abuse is
a necessary condition for the safety, protection and physical and
emotional well-being of the child.” (§ 300.2.)
The record supports the juvenile court’s finding of
jurisdiction based upon on Father’s failure to protect I.O. from
substantial risk of harm from Mother’s use of controlled
substances. There is substantial evidence that Mother abused
controlled substances and Father failed to protect I.O. Mother
failed a drug test and failed to appear for subsequent tests during
the investigation in this case. A witness stated that Mother
appeared under the influence and that she admitted to still using
drugs.
Father’s contentions that he did not know or should not
have known of Mother’s drug use are unpersuasive. Father was
a former user of the same substance, methamphetamine, for
about three years. He could not recall whether he had used
methamphetamine with Mother, but he said they may have used
it together once. Father stated he was aware that Mother had a
history of using marijuana and methamphetamine. Thus, Father
knew what indications to look for given his own experience, and
he should have been on alert that Mother could have been using
given her past and taken steps to ensure I.O. was not being left
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alone with an impaired parent. He was not entitled to turn a
blind eye to the information he had about Mother and simply
hope that I.O. would be safe.
Moreover, given I.O.’s young age, Mother’s drug abuse
created a substantial risk to I.O.’s safety. (Drake M., supra, 211
Cal.App.4th at p. 767.) The risk of a parent’s substance abuse is
very different when the child is of particularly young age, when
“drug abuse presumptively constituted neglect. [Citation.]”
(In re J.M. (2019) 40 Cal.App.5th 913, 922, fn. 7.)
For these reasons, substantial evidence supports the
juvenile court’s finding of jurisdiction based upon Father’s failure
to protect I.O. from Mother’s drug use.
IV. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Father to Attend a Domestic Violence
Program
Finally, Father argues that the juvenile court abused its
discretion in ordering him to complete a separate domestic
violence counseling program as part of his case plan. Father’s
counsel preserved this objection.
We review a dispositional order for abuse of discretion.
(Briana V., supra, 236 Cal.App.4th at p. 311.) The court has
broad discretion to fashion dispositional orders for the child’s
well-being. (In re Corrine W. (2009) 45 Cal.4th 522, 532.) While
reunification services need not be tied to a sustained allegation,
they must be reasonable, and they must be designed to eliminate
the conditions that led to the dependency. (Briana V., supra, 236
Cal.App.4th at p. 311; In re Nolan W. (2009) 45 Cal.4th 1217,
1229.)
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The juvenile court’s order that father complete a domestic
violence program is designed to eliminate the conditions that led
to the dependency, which are detailed above and supported by
substantial evidence. The court did not abuse its discretion.
DISPOSITION
We affirm the jurisdictional and dispositional orders.
HARUTUNIAN, J.*
We concur:
STRATTON, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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