In re I.B. CA2/3

Filed 5/23/23 In re I.B. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re I.B. et al., Persons Coming B322210
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 22CCJP00187AB
Plaintiff and Respondent,
v.
J.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig S. Barnes, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
In this juvenile dependency case, father challenges the
court’s jurisdictional finding under Welfare and Institutions Code
section 300, subdivision (b) regarding two of his children, two-
year-old I.B. and newborn J.R. (the minors).1 The court found
that the minors would be at substantial risk of serious physical
harm in father’s custody because father abused another newborn
child in 2004, causing multiple, severe injuries. That abuse led to
a conviction for child abuse and a seven-year prison term.
Although the prior instance of abuse is remote in time, we
reject father’s contention that there is no nexus between that
conduct and a risk of harm to the minors. Specifically, the
severity of the injuries in the prior case and the additional
evidence of a pattern of abuse of that newborn child, coupled with
the age of the minors in this case and the absence of any
rehabilitative efforts on father’s part, provide substantial
evidence to support the court’s jurisdictional findings.
Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Background
Father is the presumed father of I.B. (born 2020) and J.R.
(born 2022.) At the outset of these proceedings, mother lived with
I.B. in an apartment. Father did not live with mother but stayed
with her frequently at her apartment and spent time with the
minors.
1All undesignated statutory references are to the Welfare and
Institutions Code.
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2. Referral Regarding Mother
The Department of Children and Family Services
(Department) received a referral regarding the minors in mid-
January 2022, after both mother and J.R. tested positive for
amphetamine at J.R.’s birth. The Department filed a petition
under section 300, subdivisions (b) and (j), alleging that mother’s
drug abuse rendered her unable to provide care for her young
children and that her use of amphetamine while pregnant with
J.R. placed the minors at risk of serious physical harm. The court
ordered the minors detained from mother and father on
January 19, 2022, and ordered the Department to evaluate father
for possible placement.
3. Investigation Regarding Father
The Department’s investigation revealed that father had a
criminal record, including a 2005 conviction for child cruelty
(Pen. Code, § 273a, subd. (a)) for which father served a seven-
year prison sentence. After his release, father was convicted on a
charge of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)) and sentenced to four years in state prison. Father also
had an extensive record as a juvenile, including charges for
burglary, murder, attempted murder, assault with a firearm,
assault with a semi-automatic firearm, and vehicle theft.
During an interview with a Department social worker,
father stated that if the minors would not be released to mother
he would like to care for them himself. Mother expressed the
same desire. He indicated a willingness to change his work
schedule to meet the needs of the minors. Father was resistant to
many of the social worker’s questions, however, and declined to
disclose matters he deemed to be “unrelated to case issues” or
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“confidential information.” Father also said that he helped
mother pay for her apartment and provided financial assistance
for I.B. and his other children.2
The Department and minors’ counsel recommended against
placing the minors with father. At the hearing, father’s counsel
responded that father’s convictions for violent acts took place long
ago and that father served his time and was rehabilitated.
Minors’ counsel noted, however, that father had not explained
what sort of rehabilitative activities related to his violent
conduct, even though he had the opportunity to do so. The
Department also noted that father believed the minors had been
wrongfully detained from mother, notwithstanding her 17-year
history of drug abuse and use of amphetamine while pregnant
with J.R. This attitude, the Department maintained, showed a
lack of insight and possible inability to protect the minors.
Ultimately, the court did not place the minors with father but
gave the Department discretion on the issue.
In March 2022, the Department submitted a report
regarding jurisdiction and disposition. The Department’s
investigation revealed additional details about father’s criminal
conviction for child abuse. Specifically, in September 2005, the
juvenile court sustained five jurisdictional allegations regarding
father’s infant daughter, Emily. Generally, the allegations stated
that Emily—who was then two months old—had been medically
examined in November 2004 and was found to have “two skull
fractures, an acute and sub[-]acute subdural hematoma at
different ages of bleed, four rib fractures at different stages of
healing, a fractured tibia, two foot fractures, [and] a bruise to the
2 The Department’s report indicates that father has “8–10” children.
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right ear.” She was also suffering from seizures. The injuries
were consistent with “inflicted trauma” and “would ordinarily not
be sustained except as the result of the unreasonable or negligent
acts or omissions of the child’s mother and father, who had the
care, custody and control of the child.” Emily’s mother’s and
father’s explanations as to how the injuries occurred were
inconsistent with the child’s injuries. Apparently, father later
explained that he “threw the child on the bed,” she “bounced on
the bed and hit the headboard and the wall,” and then “landed
between the wall and the bed.” The court did not order family
reunification services for father, who was then incarcerated. The
court awarded mother full legal and physical custody of Emily
and her two brothers.
The Department also discovered two juvenile dependency
referrals regarding domestic violence between father and his ex-
wife. The first incident, in late 2018, was deemed inconclusive.
Father and his ex-wife agreed that they had had a heated
argument. She alleged that the argument escalated and that
father broke her phone, threw a coffee jar at the television and
caused it to break, and pushed her so hard that it caused bruising
on her shoulder. Father admitted that he broke the television but
denied that the argument became physical. One of their children
was in the room during the incident and the other was sleeping
nearby.
The ex-wife reported a second incident which occurred in
mid-May 2019. At that point, father had moved out of the family
home and the couple’s divorce was in process. According to the ex-
wife, father came to visit the children. During the visit, he
attacked her, slapping her on her face and choking her in front of
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the children. She sustained bruises to her left eye and cheek
area.
During the current proceedings, father’s ex-wife spoke to a
Department social worker and confirmed father was abusive to
her and hit her in front of the children. Their divorce was
finalized in May 2019.
4. Amended Petition
In early March 2022, the Department filed an amended
petition including the following allegation as to father: “On
09/26/2005, at Disposition hearing, the Court declared the
[minors’] sibling, [Emily], as a dependent of the Juvenile Court
under WIC 300 subdivisions- a, b, e and i. On 09/26/2005, the
Court did not order Family Reunification Services for [father]
with [Emily]. On or about 11/08/2004, [Emily] was medically
examined and found to be suffering from a detrimental condition
including but not limited to, two skull fractures, an acute and
sub[-]acute subdural hematoma at different ages of bleed, four rib
fractures at different stages of healing, a fractured tibia, two foot
fractures, [and] a bruise to the right ear. As a result, [Emily]
suffered from seizures. This child’s injuries were consistent with
inflicted trauma. On 02/23/2005, as a result of the father’s
confession to causing the non-accidental injuries to [Emily], he
was convicted of penal code, 273A(A) and sentenced to 7 years in
prison. On 01/08/2007, jurisdiction was terminated for [Emily]
and the child’s mother was awarded full legal and physical
custody of the child. The father was ordered to have monitored
visits with the child. As such, the father’s failure to protect and
his conduct which caused physical harm to [Emily] places [the
minors], who are of such a young age as to require constant care
and supervision, places [sic] their physical and emotional health
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and safety at risk of harm, damage, danger and death.” The
Department requested that the court bypass father for
reunification services.
In a last minute information dated April 7, 2022, the
Department reported that father had not participated in any
recommended services. He said, however, that he would enroll
and participate in services once they were ordered by the court.
5. Adjudication; Disposition; Appeal
The court adjudicated the amended petition on
April 12, 2022 and found true the jurisdictional allegation
regarding father. In a last minute information dated June 9,
2022, the Department reiterated that father was still not
participating in any recommended services.
A contested disposition hearing took place on
June 10, 2022. The court recognized that father had stayed
engaged with the Department and had sought to establish his
parentage. In addition, father and mother had regularly visited
the minors and were appropriate with them. And the court
indicated that the Department sought to bypass reunification
services for father under an inapplicable code section. Father’s
counsel did not argue against removal, instead suggesting that a
period of supervision with family reunification services was
appropriate: “Providing the parents with services over the next
few months and having the Department have – keep its eyes on
the family is exactly what needs to happen at this point. But it
allows at least the family to do programs so that they’re able to
reunify with their children, which is what the dependency court –
was the point here.” The court ordered the minors removed from
mother and father. Father’s case plan includes participation in a
12-step program for a minimum of 12 months, six random, on-
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demand drug tests, conjoint counseling with mother, and
individual counseling to address addiction, parenting, and mental
health.
Father timely appeals.
DISCUSSION
1. Justiciability
As an initial matter, we note that the Department contends
father’s appeal is not justiciable because the jurisdictional
findings regarding mother are unchallenged and therefore the
minors will remain under the protection of the Department
regardless of the outcome of father’s appeal. Because father
would be non-offending and potentially be eligible to take custody
of the children but for the challenged jurisdictional findings, we
exercise our discretion to consider his appeal on the merits. (See
In re Drake M. (2012) 211 Cal.App.4th 754, 762–763, disapproved
on an unrelated point by In re D.P. (2023) 14 Cal.5th 266, 283
[noting Court of Appeal may hear a jurisdictional challenge
brought by one parent if “(1) [the jurisdictional finding] serves as
the basis for the dispositional orders that are also challenged in
the appeal [citation]; (2) [the findings] could be prejudicial to the
appellant or could impact the current or any future dependency
proceedings [citations]; or (3) [the finding] ‘could have other
consequences for [the appellant], beyond jurisdiction’ ”].)
We now turn to father’s challenges to the court’s
jurisdictional finding.
2. Substantial evidence supports the jurisdictional
finding.
Father contends the jurisdictional finding relating to him is
not supported by substantial evidence. We disagree.
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2.1. Standard of Review
“ ‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. ... “[W]e 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. [Citations.] ‘ “[T]he [appellate] court
must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence ... such that a reasonable trier of fact could find [that
the order is appropriate].” ’ ” ’ ” (In re I.J. (2013) 56 Cal.4th 766,
773.) Substantial evidence is “ ‘evidence which is reasonable,
credible, and of solid value[.]’ ” (In re I.C. (2018) 4 Cal.5th 869,
892.)
2.2. Legal Principles
Under section 300, subdivision (b), a juvenile court may
exercise dependency jurisdiction 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 ... .’ ” (See In re E.E. (2020) 49 Cal.App.5th 195, 205.) The
legislatively declared purpose of these provisions “is to provide
maximum safety and protection for children who are currently
being physically, sexually, or emotionally abused, being
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neglected, or being exploited, and to ensure the safety, protection,
and physical and emotional well-being of children who are at risk
of that harm.” (§ 300.2.) “ ‘The 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 I.J., supra, 56
Cal.4th at p. 773.) “The court may consider past events in
deciding whether a child presently needs the court’s protection.
[Citation.] A parent’s ‘ “[p]ast conduct may be probative of
current conditions” if there is reason to believe that the conduct
will continue.’ [Citation.]” (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1215–1216.)
2.3. Analysis
As father notes, there is no evidence that he has ever
abused either of the minors. Accordingly, the Department was
required to establish, by a preponderance of the evidence, that
the minors are currently at substantial risk of serious harm in
his custody. Father contends that the Department failed to meet
its burden because the physical abuse of his daughter Emily,
which forms the basis of the sustained jurisdictional allegation,
was a single incident that occurred long ago. Further, father
asserts that he has had several additional children since 2004
and there have been no additional allegations of child abuse.
Substantial evidence supports the court’s conclusion that
father’s violent and abusive conduct was likely to persist. (See
In re Cole L. (2021) 70 Cal.App.5th 591, 607 [noting jurisdiction
based on parent’s past conduct must be based upon evidence “the
earlier threatening conduct will recur”]; In re C.V. (2017) 15
Cal.App.5th 566, 572 [“[j]urisdiction ‘may not be based on a single
episode of endangering conduct in the absence of evidence that
such conduct is likely to reoccur’ ”]; see also Georgeanne G. v.
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Superior Court (2020) 53 Cal.App.5th 856, 869 [noting that “a
finding of risk of harm to a child must be based on more than
conjecture or a theoretical concern”].) Several factors support the
court’s conclusion.
First, father’s assertion that the 2004 abuse was a single
incident is not supported by the record. The medical evidence
indicated that Emily had two subdural hematomas at different
bleed ages and multiple rib fractures at different healing stages.
The attending neurologist indicated that Emily’s skull fractures
were likely very recent, but her other injuries were
approximately three to four weeks old. Thus, the evidence
supports a reasonable inference that Emily was abused on at
least two, if not multiple, occasions.
Second, although the 2004 abuse is remote in time, that
abuse was severe. At only two months of age, Emily had two skull
fractures, an acute and sub-acute subdural hematoma, four rib
fractures, a fractured tibia, two foot fractures, and a bruise to the
right ear. She was suffering from seizures due to her injuries.
And some of her injuries were three to four weeks old—meaning
they had been inflicted when she was only a few weeks old. Our
Supreme Court has explained, in discussing section 300,
subdivision (j), that “ ‘[s]ome risks may be substantial even if
they carry a low degree of probability because the magnitude of
the harm is potentially great.’ … In other words, the more severe
the type of sibling abuse, the lower the required probability of the
child’s experiencing such abuse to conclude the child is at a
substantial risk of abuse or neglect under section 300. If the
sibling abuse is relatively minor, the court might reasonably find
insubstantial a risk the child will be similarly abused; but as the
abuse becomes more serious, it becomes more necessary to
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protect the child from even a relatively low probability of that
abuse.” (In re I.J., supra, 56 Cal.4th at p. 778.) Here, the record
permits a reasonable inference that in view of the minors’ ages—
newborn and two years old at the time of the adjudication—even
a single episode of abuse similar to Emily’s could have life-
threatening consequences for the minors. Thus, even a small
likelihood of abuse at father’s hands poses a substantial risk of
serious harm to the minors.
Third, father has committed violent acts more recently
than 2004. In 2012, father was convicted of assault with a deadly
weapon. And there is evidence that father assaulted his ex-wife
on at least two occasions in front of their children. These events
occurred much more recently, in 2018 and 2019.
Fourth, there is no evidence that father has made any
effort to address the circumstances that led to Emily’s abuse.
This is particularly significant due to the age of the minors here.
Father explained that he “forcefully threw” Emily after he
“became frustrated at the child’s constant crying.” He admitted
that he lost control and although he was remorseful, he also
delayed seeking medical care for Emily for several days. But
although father notes that he served his time and claims to be
“rehabilitated,” he has given no indication that he has
participated in any sort of course or therapy addressing his loss
of control and subsequent abuse of an infant. Father points out
that no court ordered him to engage in any such services, but
that does nothing to mitigate the potential harm to these minors.
Moreover, given that J.R. is the same age Emily was when father
abused her, the absence of any rehabilitation specific to his prior
loss of control is concerning, at the very least. Yet, father believes
that he poses no risk to the minors: “I have rehabbed. I have been
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a father. I am a fucking fantastic father. I do what I have to do
for my children. All my [exes] can tell you that. Everyone knows
my kids come first. I don’t believe I need services. I don’t believe I
need anything.” His decision not to participate in voluntary
services during the pendency of this case is consistent with his
stated view and also is cause for concern. (See In re Gabriel K.
(2012) 203 Cal.App.4th 188, 197 [noting “[o]ne cannot correct a
problem one fails to acknowledge”].)
Father urges that he has fathered several other children in
recent years and has not been accused of child abuse, a
circumstance he contends demonstrates that there is no nexus
between his past abuse of Emily and a risk of harm to the minors.
Assuming father’s representation is true, it lacks sufficient detail
to be persuasive. For example, father states that I.B. was 21
months old at the time of her detention from mother, he had been
“involved” with her since she was born, and there were no
allegations he had ever abused I.B. What is lacking, however, is
substantial detail about his “involvement” with I.B. The record
reflects that I.B. lived with mother full-time, father did not reside
with them, and father traveled a great deal for work. The record
does not suggest that father regularly cared for I.B. on his own
and does not include any detail about the way he spent time with
her. Without any context regarding father’s relationship with I.B.
(or his other children, for that matter), the absence of allegations
of child abuse against him is hardly affirmative evidence of
parental fitness.
Citing In re Isabella F. (2014) 226 Cal.App.4th 128, father
argues that a single incident of physical abuse cannot support a
finding here that the minors are at substantial risk of abuse from
him in the future. As noted, the record supports an inference that
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the 2004 incident was not the only instance of child abuse. In any
event, father’s description of that case is incorrect. There, a minor
accused her mother of hitting her and she had scratches on one
side of her face and a gouge mark on one earlobe. (Id. at pp. 131–
132.) The minor denied that other violent incidents had occurred.
(Id. at p. 133.) The Court of Appeal concluded that evidence was
insufficient to establish, under section 300, subdivision (a), that
the minor had suffered serious physical harm inflicted non-
accidentally by mother. But that is not the issue presented in this
case. As we have said, there is no evidence father abused these
minors in the past and the Department did not assert jurisdiction
under section 300, subdivision (a). Instead, the Department
sought jurisdiction under section 300, subdivision (b), predicated
on the risk of serious physical harm in the future given father’s
history of violence.
Father also contends that his criminal history of violent
acts does not support the court’s jurisdictional finding. But as we
have said, multiple factors support the court’s finding in this case
and father’s prior convictions and reported domestic violence are
only a part of the whole picture.
In sum, father seeks custody of a newborn and a toddler
and it is therefore likely that, if he prevails, he would experience
some bouts of the sort of crying that triggered his prior,
uncontrolled, and severe abuse of Emily. Given the absence of
insight on his part and the further absence of any rehabilitative
effort on his part—including during these proceedings—we
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conclude that the court did not err in sustaining the jurisdictional
allegation at issue.3
DISPOSITION
The adjudication order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
3Because we affirm the court’s jurisdictional finding, we need not
address father’s argument that, as a non-offending parent, he should
be considered for placement on remand.
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