Filed 4/25/22 In re A.J. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
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| In re A.J., a Person Coming Under the Juvenile Court Law. | C094041
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SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
M.O.,
Defendant and Appellant.
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(Super. Ct. No. STK-JD-DP-2020-0000027)
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M.O. (father) appeals from the dispositional orders denying him reunification services for his son, the minor A.J., based on a finding by clear and convincing evidence that A.J. suffered severe physical abuse while in father’s care. (Welf. & Inst. Code, § 361.5, subd. (b)(6).)[1] Finding no error, we affirm.
BACKGROUND
In January 2020, A.J. was eight years old and living with father and A.J.’s paternal grandmother. On January 25, 2020, A.J. appeared at a neighbor’s home, covered in blood. He said father was trying to kill him. A.J. described trying to hug father but rather than return the hug, father choked him. Father then put his hands inside A.J.’s mouth and tried to “rip his mouth open.” When law enforcement arrived, they noted A.J. had difficulty moving his mouth and was “very shaken up.” A.J. did not want to talk about what happened, and was taken to the hospital. At the hospital, the nurse noted A.J. had bruising around his neck, “abrasions on his face and temple, and swelling to his jaw, nose, and lips, and was spitting up blood. He [also] complained of pain in his right leg and chest tenderness.” Father was arrested later that day, after he was found walking naked through the neighborhood. Law enforcement searched the home and noted the smell of marijuana and a marijuana plant in the bathroom.
The San Joaquin County Human Services Agency (the Agency) subsequently filed a juvenile dependency petition. As relevant here, the Agency alleged A.J. had suffered serious, physical harm at the hands of father, A.J. was scared of father and did not want to see him again, father failed to ensure A.J.’s health and safety needs were being met by leaving a marijuana plant in the bathroom, and father lacked the ability to care for A.J. as a result of “untreated mental health issues.” (§ 300, subd. (b).) The Agency further alleged father was now incarcerated and “unable to arrange for care and support of [A.J.]” (§ 300, subd. (g).)[2]
At the uncontested detention hearing on January 29, 2020, the juvenile court ordered A.J. detained. On June 23, 2020, the juvenile court presided over the jurisdictional hearing, which father did not contest. Following father’s submission, the court found true the allegations that A.J. came within the provisions of section 300, subdivisions (b), (g), and (j), as alleged in the amended petition. The court subsequently ordered father submit to a psychological evaluation.
After evaluating father, the court appointed psychiatrist, Gary L. Cavanaugh, noted that father “does have a mental health disability (substance use disorder/significant personality disorder and a documented substance abuse induced psychotic disorder).” Dr. Cavanaugh concluded, “t may be possible ultimately for [father] to reach a point where he potentially could be able to reunify but the steps that are necessary are long. . . . [I]t could easily take longer than a year. I want to emphasize that I don’t see him as a bad person but rather one who simply doesn’t deal well [or] understand his issues. I doubt all of this can be completed in a year’s time and I am not certain that all of these moving parts will actually work together.”
On November 10, 2020, the Agency filed the disposition report. In the report, the Agency expressed concern about the significant harm father inflicted on A.J. and the possibility he may harm A.J. again. The Agency noted Dr. Cavanaugh’s assessment that father “ ‘exhibits a complex pattern of psychological problems. [He] indicates having poor insight and a passive dependent personality which [are] not good prognostic signs.’ ” The Agency reported that A.J. did not want to live with father, describing A.J. as “still traumatized and fearful of his father.” The Agency also noted “that since the onset of this case, [A.J.] has clearly advocated for himself and has stood firm on his wishes not to reunify with either of his parents . . . . The Court should know that [A.J.] is a very intelligent young man. [A.J.] has maintained that he is fearful of his father as he is unsure if [his father] will hurt him again, and therefore [A.J.] does not wish to return to his care.”
Having considered Dr. Cavanaugh’s report, A.J.’s express wishes, and its own observations of father, the Agency concluded father was “not a safe person to care for” A.J. As a result, the Agency recommended father be bypassed for reunification services.
A contested disposition hearing was held over several days in May and June 2021. At the hearing, social worker Jianna Penaflor testified that she visited with A.J. at least once a month after he was removed from father’s custody. A.J. was reticent to talk about what happened with his father; he did not want to discuss it in any detail. He did, however, tell her that “what happened was very scary.” Since his removal, A.J. remained “strong about not wanting any type of communication or contact with . . . father, even when offered letters or telephonic communication he [did] not want it.” He told Penaflor that he was scared of father.[3] At one point, Penaflor asked A.J. if she could give father a photograph of A.J.; A.J. “said no.” A.J. thought it was “wrong, and he didn’t want his father to have a picture of him.”
Since his removal, A.J. had not visited with father. In counseling, A.J. required “a lot of support” because he was afraid the court would “make he and his father talk when he wasn’t ready.” When the issue of visiting father was raised, A.J. appeared to experience “feelings of anxiety/fear”; he “shook his head a lot. His eyes were tightly closed.” He told Penaflor he may be ready to visit father when he is 15, when he would be “old enough to stand up to [him].”
Father’s counselor, Michelle Horn, testified she had 23 sessions with father and had prepared five reports. She described father as amenable to treatment and testified he had done well in therapy. She attributed his conduct at the time of the incident to his having been fasting, but also acknowledged that father did not really understand why the incident happened.
After an exchange regarding a proffered Exhibit 9 that we detail [i]post, father testified that he remembered county counsel handing him a letter and photographs from A.J. around August 26, 2020. Prior to that, the Agency told father that A.J. wanted nothing to do with him; when he received the letter and pictures, however, he believed that to be a lie. Father acknowledged receiving no other communication from A.J.
Father also testified that he pleaded guilty to criminal charges arising from the conduct that resulted in A.J.’s removal from his custody. When asked to explain what happened the day he injured A.J., father said he only pulled at A.J.’s mouth when A.J. bit him. There was no punching, he did not “strike” A.J., and he did not try to “rip [A.J.’s] mouth open,” as A.J. had described it. Father thought A.J. may have been scared because father “wasn’t in [his] right mind,” but A.J. was biting him and father “freaked out.” Father did acknowledge that he only remembered “glimpses” of what happened that day because he was undernourished and had been smoking oil dipped marijuana.
At the conclusion of the dispositional hearing, citing section 361.5, subdivision (b)(6), the juvenile court found no evidence it would be in A.J.’s best interest to provide father with reunification services. The court explained that “irrespective of whether it was a one-time psychotic event or it was based on the use of marijuana or oils or anything else, it still happened. The kid was still harmed.” The court then adopted the disposition report and bypassed father for services.
Father filed a timely appeal from the disposition hearing. The case was fully briefed and assigned to this panel on February 4, 2022. The parties waived argument and the case was submitted on April 20, 2022.
DISCUSSION
I
Admission of Exhibit 9
Father first contends the juvenile court erred in refusing to admit Exhibit 9; he argues there was no “proper evidentiary objection” raised. We disagree.
A. Additional Background
On the final day of the dispositional hearing, father sought to admit several documents as Exhibit 9. Exhibit 9 included copies of photographs of A.J., drawings, and a letter from A.J. that father said he received from county counsel. County counsel objected: “[County Counsel]: I’m going to object to this. There’s no dates on this. I don’t remember giving this gentleman anything in the office. I remember none of this. It would have been an envelope, but I don’t remember going down. There’s no dates. It could have been done the other day. It could have been given to dad from grandmother.
“THE COURT: Mr. Aguilar [(minor’s counsel)]?
“[Minor’s Counsel]: Your honor, just looking at what I’m receiving, the pictures of [A.J.] seem to be recent pictures as far as the actual photographs. The drawings, I don’t know how old this is. I don’t know when this occurred. I wasn’t aware of any letters being sent to [father].
“[Father’s Counsel]: I would ask that [father] clarify those issues before the Court makes a ruling.
“[County Counsel]: He can’t, unless he took the photos.
“THE COURT: Does he have the photos, the originals?
“[Father’s Counsel]: We have the originals. I didn’t mark the originals. And I have the original letter because they’re memories for the father, but I do have the originals for observation. So I just didn’t want him to lose them forever once they go into evidence because that’s all he has.
“THE COURT: How would you corroborate his testimony as far as the identification of those?
“[Father’s Counsel]: Excuse me?
“THE COURT: How would you be able to corroborate any testimony the father gives as to these documents that are undated?
“[Father’s Counsel]: I received them before placement.
“THE COURT: Right. But I’m not going to have you testify.
“[Father’s Counsel]: Right. But I’m just saying --
“[County Counsel]: Do the back of the photos have the dates them printed out?
“[Father’s Counsel]: No. I don’t think they do that anymore.
“[County Counsel]: Ok.
“[Father’s Counsel]: But I did receive them before the minor was placed. I just didn’t understand their significance until --
“THE COURT: I think I’m going to have to uphold the objection.
“[Father’s Counsel]: Okay. So even if the items aren’t entered into evidence, I’ll just ask questions.”[4]
B. Analysis
The documents contained in Exhibit 9 were required to be both relevant and properly authenticated in order to be admitted into evidence. (Evid. Code, §§ 250, 1401.) “Authentication is to be determined by the trial court as a preliminary fact [citation] and is statutorily defined as ‘the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is’ or ‘the establishment of such facts by any other means provided by law.’ ” (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
As we have just described, father proffered Exhibit 9 as evidence that A.J. sent him a letter, drawings, and photographs. County counsel objected and explained that father could not establish who gave him the documents or when. Father’s counsel did not challenge the objection, the court sustained the objection, and counsel went on to question father about the documents without securing their admission into evidence. It is thus apparent from the record that counsel and the court understood the objection to be a foundational objection as to the documents’ authenticity and thus their relevance. (People v. Goldsmith, supra, 59 Cal.4th at pp. 266-267 [“Authentication is essentially a subset of relevance”].) Although far from a model of clarity, the objection was adequate and appeared to be understood by all involved at the time it was made. No error appears.
II
Adequacy of the Record on Bypass
Father also challenges the juvenile court’s bypass determination pursuant to section 361.5, subdivision (b)(6), because the court failed to read into the record the factual basis for its decision. He argues the error was prejudicial because “had the court carefully enunciated the evidence in support of its ruling, it is reasonably probable it would have not denied reunification services.” Respondent acknowledges the court “did not give a point by point reason for its determination,” but notes the court did expressly adopt the disposition report, which included a factual basis for the court’s determination. We agree the lack of express findings was error, but hold the error was harmless.
Section 361.5, subdivision (b)(6) authorizes a juvenile court to deny reunification services unless it finds by “clear and convincing evidence” that reunification is in the best interests of the child. (§ 361.5, subd. (c).) Section 361.5, subdivision (k) requires the court to “read into the record the basis for a finding of . . . the infliction of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services . . . would not benefit the child.” Here, the required bases for the findings were not read into the record, but instead were only incorporated by reference through the juvenile court’s adoption of the disposition report, as we have set forth ante.
Where a juvenile court fails to state on the record the basis for its section 361.5, subdivision (b)(6) bypass finding, “we will infer a necessary finding provided the implicit finding is supported by substantial evidence.” (In re S.G. (2003) 112 Cal.App.4th 1254, 1260; see also In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84.) On this record, we find ample evidence to infer the findings necessary to support the court’s bypass determination.
First and foremost, the juvenile court found true the allegation that A.J. suffered physical harm, as described in detail by the petition, at the hand of father. Father did not challenge that finding in the juvenile court; on appeal, he compares the harm suffered by the minor here to injuries described by several reported cases and cursorily concludes father did not cause “ ‘severe physical harm’ within the meaning of the statute.”
The argument fails to persuade. Subdivision (b)(6)(C) of section 361.5 instructs that a finding of “severe physical harm . . . may be based on, but is not limited to, deliberate and serious injury” inflicted on the minor as well as “any other tortuous act or omission that would reasonably be understood to cause serious emotional damage.” Father’s conduct here fits that description. The disposition report, which the juvenile court orally adopted, described that father choked A.J., put his hands inside A.J.’s mouth, and tried to “rip [A.J.’s] mouth open.” As a result of father’s attack, the eight-year-old A.J. was left with marks on his face and bruises on his throat; his jaw, lips, and nose were swollen. His chest and leg hurt, and he was spitting up blood.
Further, the report documented the severe emotional harm A.J. suffered as a result of father’s attack. A.J. described trying to hug father, who responded by choking him; A.J. believed father was trying to kill him. A.J. was so traumatized by the attack that, despite therapy, he articulated that he did not want to see father until he was 15 and therefore old enough to defend himself. He did not want to talk about the attack and exhibited signs of fear and anxiety when declining to do so.
As for the likelihood that A.J. would be returned to father’s care within 12 months, the disposition report contained the information provided by Dr. Cavanaugh, who concluded that even if father could do the work to reunify with A.J., it could not be done within one year. Dr. Cavanaugh opined that father did not understand his own problems and did not know how to deal with them. And father demonstrated his lack of insight at the dispositional hearing, where he blamed A.J. for the attack, claiming he only grabbed A.J.’s mouth to stop A.J. from biting him.
Finally, A.J. indicated on several occasions that he did not wish to visit father; he did not even want father to have a photograph of him. He told the Agency he was scared of father, and repeatedly asserted that he did not want to reunify with father.
Once a juvenile court determines section 361.5, subdivision (b) applies at disposition, it must order bypass “unless [it] finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c)(2).) The burden is on the parent to show reunification would serve the best interests of the child. (In re A.G. (2012) 207 Cal.App.4th 276, 281.) Father made no such showing to the juvenile court and has identified no such evidence on appeal. Substantial evidence supports inference of the necessary findings under section 361.5, subdivision (k), as well as the conclusion that providing services to father would not benefit A.J. (In re S.G., supra, 112 Cal.App.4th at p. 1260.)
DISPOSITION
The orders of the juvenile court are affirmed.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Earl, J.
[1] Further undesignated statutory references are to the Welfare and Institutions Code.
[2] At the time of A.J.’s detention, father had sole custody. During the course of the proceedings, A.J.’s mother died; she never regained custody of A.J.
[3] On cross-examination, Penaflor acknowledged there was one occasion when A.J. did ask to see his father. And on July 17, 2020, when asked with whom A.J. would like to reunify, “he said Father.” Just days before the dispositional hearing, however, A.J. made it clear to Penaflor that he did not want to see father.
[4] Neither Exhibit 9 nor its contents are part of the record on appeal.
