In re J.J. CA2/2

Filed 8/16/23 In re J.J. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re J.J., a Person Coming B322303
Under the Juvenile Court Law. (Los Angeles County
Super. Ct.
No. 19CCJP07550A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHARLES J.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hernan D. Vera, Judge. Affirmed.
Candice L. Christensen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, O. Raquel Ramirez, Deputy County
Counsel, for Plaintiff and Respondent.
******
Charles J. (father) appeals from the juvenile court’s
findings and orders establishing dependency jurisdiction over J.J.
(born December 2005) and the denial of his request to place J.J.
in his custody pursuant to Welfare and Institutions Code sections
300 and 362.1 As substantial evidence supports the findings that
father’s conduct created a risk to J.J. and placement with father
would be detrimental to J.J., we affirm.
FACTUAL BACKGROUND
Neglect leading to original section 300 petition
The Los Angeles Department of Children and Family
Services (DCFS) received a report on October 30, 2019, alleging
general neglect of the child, J.J., by mother, Susan S.
(mother),who resided at the Union Rescue Mission homeless
shelter.
Mother violated the shelter’s policy on October 29, 2019,
when she left J.J. alone in their unit. Mother returned hours
later and tested positive for marijuana and methamphetamine.
This was not her first positive test for illicit substances.
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2
Children’s social workers (CSW’s) unsuccessfully tried to
meet with J.J. at her school and with mother and J.J. at the
facility. Mother and J.J. had left the shelter.
Previously, mother disclosed father’s name to the shelter,
noting he was in San Bernardino and she tried to limit contact
with him. DCFS later discovered the family had a previous
referral for child neglect in December 2005, which included
allegations of severe neglect of J.J., who was only a few days old
at the time. Mother then reported father frequently smoked in
their home and seemingly did not care he was endangering J.J.
because he did not want her. Mother soon moved in with J.J.’s
maternal grandmother to distance herself from father.
In November 2019, a CSW attempted to contact father at
his last known telephone numbers but was only able to leave
messages and send a notice of the proceedings to his last known
address.
A petition was filed on November 22, 2019, alleging neglect
under section 300, subdivision (b), based on mother’s substance
abuse. The location of mother and J.J. was unknown. A detention
hearing was held on November 25, 2019, and a protective
warrant for J.J. was issued.
J.J. found and adjudication hearing
In July 2020, a CSW discovered J.J. was in Arizona but
was unable to obtain any further information because mother
declined to provide an address or to cooperate with efforts to
determine whether J.J. was safe.
Notices of the proceedings continued to be sent to father’s
last known address throughout 2021. Father did not respond.
3
On February 2, 2022, DCFS discovered J.J.’s location from
the maternal aunt, who also advised that mother had passed
away on December 28, 2021.
J.J. initially stayed with her maternal uncle in Riverside,
who provided a CSW with J.J.’s cell phone number. J.J. informed
the CSW that she was no longer staying with her uncle because
he was residing in his vehicle. She was now staying with a family
friend, Rudy R., in San Bernardino.
Rudy R. confirmed he had known both mother and J.J. for
years and was willing to provide for J.J.’s basic needs. J.J. viewed
Rudy R. as her family and asserted she might run away if she
had to reside with her uncle. Upon evaluating Rudy R.’s home,
the CSW found it suitable, devoid of any safety concerns.
Consequently, DCFS placed J.J. with Rudy R., as an emergency
resource family approval placement.
On February 8, 2022, the juvenile court recalled the
protective custody for J.J. The court scheduled an adjudication
hearing for April 25, 2022.
At the April hearing, DCFS reported it had initiated
another due diligence search for father on February 19, 2022. J.J.
said she had not seen or spoken with father since she was four or
five years old.
Father’s reappearance and investigation into claims of
physical abuse
On March 8, 2022, father provided his contact details to the
CSW. He acknowledged having received notice of the juvenile
court proceedings and he asserted his desire for full custody of
J.J.
DCFS subsequently discovered father had an extensive
arrest history linked to domestic violence and drug-related
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offenses, spanning from 1998 to 2012, and convictions for drug-
related offenses in 1999, 2006, and 2009. His most recent arrest
was in January 2021 for possessing marijuana with intent to sell.
Fatherʼs home was assessed on March 15, 2022, and no
child safety issues were found. Father and his girlfriend had been
together for 20 years, and the girlfriend supported placing J.J.
with father. Father claimed J.J. lived with him until mother took
her when J.J. was about 13 years old. He added he had last seen
J.J. a year and a half earlier during a visit.
When the CSW reported J.J. claimed not to remember
father due to her young age during their last visit, father
attributed it to J.J.’s habit of dishonesty. He denied ever
physically disciplining J.J. and denied using any drugs or alcohol.
Citing a work-related injury, he was unable to travel for a drug
test or fingerprinting.
Upon learning J.J. was residing with a gay couple, both
father and his girlfriend reacted unfavorably. Father expressly
stated his opposition to J.J. living with a gay couple, and the
girlfriend also disapproved.
Father was asked to sign a consent form to allow J.J. access
to mental health services because she exhibited signs of
depression and anxiety following her mother’s death. Father
refused to sign the form, stating he needed to think about it.
Father added J.J. did not need therapy and the only help she
needed was to stay with her family.
In March 2022, when J.J. was asked about her father, she
said she did not remember anything about father and had no
desire to be under his care. J.J. added she was unwilling to visit
father, giving as her reason that father had struck her with a belt
on one or maybe three occasions. She did not remember why he
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hit her with a belt. She recalled mother discovering bruises on
J.J.’s body from father hitting J.J. and mother then barring J.J.
from seeing father. Contrary to father’s claim, J.J. denied seeing
him a year and a half earlier. J.J. threatened to run away if she
were removed from Rudy R. and placed with her father.
When reinterviewed about her father on April 19, 2022, J.J.
continued to assert her unwillingness to speak or visit with
father. She described their last encounter as “bad,” without
elaborating on the details or when it occurred. When asked about
calling father while she was with her school counselor, she
rejected the idea and expressed frustration about being forced
into interacting with him. J.J. recalled living with father during
her 5th grade year when he hit her with a belt on her back
because she ate something without permission. She repeated that
father had hit her on three occasions, and her mother did not let
her live with father after mother saw the bruises on J.J.’s back.
J.J. also recalled witnessing father frequently fighting with his
girlfriend. She reported father would punch his girlfriend in the
face and throw her around the room. J.J. recalled a specific
incident when father threw his girlfriend into a bookshelf in front
of J.J. and also disclosed father smoked “a lot” of cannabis daily
outside the home. Describing her father as intimidating, J.J. did
not feel safe and felt "weird” around him.
When these disclosures were made to father on April 19,
2022, father denied them. He dismissed J.J.’s claims as false with
“the little girl is lying to you.” When questioned about his use of
corporal punishment, he said: “But, if she did get a whoopin’
maybe it was because she was doing something she wasn’t
supposed to do. If I have, she was out of line and doing something
she shouldn’t be doing. I've never hit her with an open hand,
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closed first, or anything like that.” When asked to elaborate on
what this punishment entailed and when it occurred, father
responded, “I can’t tell you if I have or if I haven’t.” He repeated
that if she did get punished, it was because she was doing
something she should not have been doing.
When father was asked when J.J. was in his care, he
claimed it was at different ages because mother would leave J.J.
with him for years and then take her again. He also denied any
intimate partner violence between him and his girlfriend.
When asked about his decision to withhold consent for J.J.
to receive mental health services, father repeated his belief he
could adequately care for her needs himself. Father also
confirmed his discomfort regarding J.J.’s living with a same-sex
couple, expressing his personal opinion that it did not feel right.
Adjudication hearing and first amended petition
On April 25, 2022, father participated in the adjudication
hearing via Webex. The court found it would be harmful to place
J.J. with her noncustodial father, citing three factors: (1) the
allegations father physically abused J.J. in the past; (2) father’s
refusal to authorize mental health services for J.J.; and (3) J.J.’s
expressed intent to run away if returned to father’s care,
indicating father’s potential inability to provide for her. The court
ordered DCFS to facilitate contact between J.J. and father and to
arrange individual counseling and mental health services for J.J.
At the continued hearing on May 19, 2022, a first amended
petition was filed, alleging father physically abused J.J. by
striking and bruising her back with a belt on at least three
occasions.
In May 2022, J.J. consented to monthly meetings with
father, which resulted in a visit with father and his girlfriend at a
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park. J.J. reported a favorable response to the meeting and
indicated a level of comfort with father’s girlfriend, recalling the
girlfriend had been her caregiver years before when J.J. lived
with father. J.J., however, expressed satisfaction with her
current living arrangement because they were good role models
who did not smoke cannabis before work, did not drink or smoke,
and lived a healthy lifestyle.
On May 26, 2022, the juvenile court dismissed the original
section 300 petition after the first amended petition was filed.
Additionally, the court ordered J.J. to be detained from father.
Adjudication and disposition hearings
The juvenile court conducted the combined jurisdiction and
disposition hearing on July 18, 2022, admitting DCFS’s exhibits
without objection.
DCFS reported father had agreed to J.J. receiving mental
health services but had yet to return the necessary consent form.
In addition, father had canceled his scheduled monthly visit with
J.J. for June.
Father admitted he had not seen J.J. for five or six years
before their May 2022 visit. He clarified J.J. resided with him
when she was about nine or 10 years old. He acknowledged
employing verbal discipline but denied using physical
punishment with J.J. He conceded that a “whupping” could
involve using a belt but denied he had ever used one on J.J. or
struck her with his hand. He expressed his view that their visit
in May had been positive.
Contrary to father’s account, J.J. testified that father had
attempted to strike her with a belt on one occasion and then
struck her with a belt on two other occasions. The first time
occurred due to her lying or adopting a defiant attitude. He used
8
the belt the second time as punishment for eating something off-
limits and lying about it. The third incident also involved a belt,
resulting in bruises across her back as punishment for lying. J.J.
also testified she had seen father hit both his girlfriend and J.J.’s
uncle. While she did not express fear of her father, J.J. repeated
she would run away if required to live with him.
The court found J.J.’s testimony credible and consistent
with her prior statements. It sustained count a-1 (physical abuse)
and dismissed as duplicative count b-1 (neglect) in the petition.
The court then ordered J.J.’s removal from father “based on
the dependency court removal order set forth in the minute
order” that specified the court found, by clear and convincing
evidence, that J.J.’s return to father would be detrimental, and
there was a substantial risk of harm to J.J. should she be
returned to father.
The court ordered reunification services for father,
including joint counseling with J.J. and parenting education.
Further, the court ordered monitored visits for father with J.J.
and that father and Rudy R. would have a joint right to make
educational decisions for J.J. Finally, the court scheduled a
progress hearing to assess if different orders might be
appropriate.
Father filed a timely notice of appeal.
DISCUSSION
I. Jurisdictional finding
Father contends that his alleged corporal punishment of
J.J. is not sufficient to support the jurisdictional finding made
pursuant to section 300, subdivision (a).
9
A. Applicable law and standard of review
Section 300, subdivision (a) provides in relevant part: “A
child who comes within any of the following descriptions is within
the jurisdiction of the juvenile court . . . [¶] (a) The child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm inflicted nonaccidentally upon the child by
the child’s parent or guardian.”
“If the court finds that the child is a person described by
Section 300, it may order and adjudge the child to be a dependent
child of the court.” (§ 360, subd. (d).) “‘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.
(2013) 56 Cal.4th 766, 773.)
In reviewing the jurisdictional findings and the disposition,
we look to see if substantial evidence, contradicted or
uncontradicted, supports them. (In re Tania S. (1992) 5
Cal.App.4th 728, 733.) Under this standard, we must view the
evidence in the light most favorable to the juvenile court’s order,
drawing every reasonable inference in support of the judgment.
(In re Marina S. (2005) 132 Cal.App.4th 158, 165.) We do not
reweigh the evidence. (Ibid.)
It is father, as the appellant, who bears the burden to show
that insufficient evidence supports the jurisdictional findings. (In
re I.J., supra, 56 Cal.4th at p. 773.)
B. Substantial evidence supports the jurisdictional
finding
Father contends his use of a belt on three occasions to
discipline J.J. occurred years ago and is not substantial evidence
of physical abuse. But he does not address several other pieces of
10
evidence showing his conduct created a substantial risk that J.J.
would suffer serious physical harm from father.
First, the bruising from father’s third use of a belt on J.J.’s
back was sufficiently severe that mother refused to allow J.J. to
visit father after that. This was not an isolated incident because
father tried or used the belt on three occasions.
Additionally, father denied the physical abuse and made
evasive statements such as “I can’t tell you if I have or if I
haven’t. If she did get a whoopin’, it’s because she did something
that she wasn’t supposed to have been doing.” When he specified
the types of physical punishment he had not done, he did not
include the use of a belt: “I’ve never hit her with an open hand, a
closed fist, or anything like that.” Father’s denial and evasive
responses on questions about his use of physical punishment are
a refusal to acknowledge the problem of inflicting serious
physical harm when he was disciplining J.J. It is reasonable to
draw an inference from his refusal to acknowledge that a risk of
physical harm remained. (In re A.J. (2011) 197 Cal.App.4th 1095,
1106 [parent’s refusal to acknowledge responsibility is relevant in
assessing risk at the jurisdictional stage].)
Second, J.J. stated she had seen father punch his girlfriend
in the face and throw her into a bookshelf right in front of J.J.
This exposure to father’s domestic violence placed J.J. at
substantial risk of serious physical harm because she was
present and in close proximity to violence between father and his
partner. This is an additional ground on which to find section
300, subdivision (a), appropriate. (In re Giovanni F. (2010) 184
Cal.App.4th 594, 599 [domestic violence is nonaccidental and any
harm suffered would result from nonaccidental conduct].)
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Third, it is reasonable to draw an inference from father’s
conduct that he uses violence to secure compliance. Although
father was last violent with J.J. in 2016, this is likely due to
mother prohibiting visits with him. There is no evidence father
stopped using violence since 2016 and, coupled with father’s
denial he ever engaged in physical violence, there is no indication
he has learned techniques to avoid resorting to violence.
Therefore, there is no guarantee these violent acts against J.J.
were isolated events that would never happen again.
It is the purpose of section 300 to provide maximum safety
and protection for children from acts or omissions that place
them at a substantial risk of suffering serious physical harm. (In
re M.M. (2015) 240 Cal.App.4th 703, 720.) This record contains
substantial evidence that jurisdiction was appropriate to protect
J.J. from a substantial risk of suffering serious physical harm
from father, who had previously engaged in physical violence
directed at J.J., against his partner in the immediate presence of
J.J., and who denied such violence against J.J. or his partner.
C. Inclusion in Child Abuse Central Index
Father contends that he is at risk of inclusion in the Child
Abuse Central Index, and it may adversely affect his future
employment or volunteer opportunities. Since he failed to cite
any part of the record showing he raised this contention in the
trial court, it is forfeited on appeal. (Baxter v. State Teachers’
Retirement System (2017) 18 Cal.App.5th 340, 378 [a party may
be deemed to waive a claim of error either by affirmative conduct
or by failure to take proper steps in the trial court to avoid or
cure the error].)
Father cites Chapman v. California (1967) 386 U.S. 18 to
argue that the court’s ruling was not harmless beyond a
12
reasonable doubt. In Chapman, the United States Supreme Court
established the “harmless error” test as a standard for
determining whether constitutional errors during a criminal trial
can be deemed harmless and not require reversal of the
conviction. This is not a criminal trial, and there is no conviction
to reverse. Substantial evidence supports the juvenile court’s
jurisdiction over J.J. based on a showing J.J. suffered physical
abuse due to her father striking her so severely that she bruised
and due to father punching and throwing his girlfriend into a
bookcase in front of J.J. Father had the opportunity to appear
and testify at the hearing. He cites no legal authority showing
that the juvenile court committed constitutional error when it
made its findings without considering the risk of father being
included in the Child Abuse Central Index.
II. Removal Order
Father also challenges the juvenile court’s disposition order
removing J.J. from his custody pursuant to section 361.
A. Applicable law and standard of review
Section 361, subdivision (c), states that “[a] dependent child
shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition
was initiated, unless the juvenile court finds clear and convincing
evidence” of “a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor” and
“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.” A juvenile court’s dispositional
order removing a child from a parent’s custody is reviewed for
substantial evidence. (In re Hailey T. (2012) 212 Cal.App.4th 139,
13
146-147.) In doing so, we must bear in mind the heightened
burden of proof. (In re A.E. (2014) 228 Cal.App.4th 820, 826.)
B. Father was a noncustodial parent
Section 361 is inapplicable here as it only authorizes a
childʼs removal “‘from the physical custody of his or her parents
or guardian or guardians with whom the child resides at the time
the petition was initiated.’” (In re Dakota J. (2015) 242
Cal.App.4th 619, 628.) Father did not have physical custody of
J.J. when either the original or amended petition was filed. J.J.
was residing with mother at the time of the original petition and
then with her uncle or Rudy R. at the time the amended petition
was filed. The court did not order the removal of J.J. from the
physical custody of father. Therefore, father’s contention that the
removal order violated section 361 is of no moment.
“We are not bound to develop appellants’ arguments for
them. [Citation.] The absence of cogent legal argument or citation
to authority allows this court to treat the contentions as waived.”
(In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830.)
C. Substantial evidence supported the order
denying placement with father
Section 361.2 provides that the juvenile court shall place
the child with the noncustodial parent if that parent requests it
unless the court finds the placement would be detrimental. (In re
Janee W. (2006) 140 Cal.App.4th 1444, 1451.) A court’s ruling
under section 361.2, subdivision (a), that a child should not be
placed with a previously noncustodial parent requires a finding of
detriment by clear and convincing evidence. (In re Luke M. (2003)
107 Cal.App.4th 1412, 1426.) The court must weigh all relevant
factors in making such a finding. (Id. at pp. 1422-1423, 1425.)
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The absence of a relationship between a father and a daughter,
as well as the daughter’s wishes, are relevant factors to a
detriment determination. (In re A.C. (2020) 54 Cal.App.5th 38,
43.) Additionally, impairment of a child’s emotional well-being
may supersede placement with a previously noncustodial parent.
(Id. at p. 46.)
A juvenile court’s findings and orders under section 361.2
are reviewed for substantial evidence. (In re K.B. (2015) 239
Cal.App.4th 972, 979.) “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.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
Here, the record shows J.J. had little to no relationship
with father and she did not want to be placed with him,
threatening to run away. Also father had not signed the consent
form for mental health services, thus impairing J.J.’s emotional
well-being. Additionally, the court found J.J. credible when she
testified father had physically abused her so severely that mother
prohibited further visits, and father had physically abused his
partner in the immediate presence of J.J. Father denied the
violence and offered no evidence this behavior was no longer
likely. Thus, the record contains evidence showing it highly
probable that the violence occurred and would occur again if J.J.
were placed with father. Certainly supplying substantial
evidence of detriment.
15
DISPOSITION
The juvenile court’s jurisdictional and removal orders are
affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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