In re Joseph M.
Filed 10/17/13 In re Joseph M. CA2/1
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re JOSEPH M. et al., Persons
Coming Under the Juvenile Court Law.
B244020
(Los Angeles
County
Super. Ct.
No. CK90626)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.P.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County. Rudolph A.
Diaz, Judge. Affirmed.
Cameryn
Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and William
D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
______
E.P.
(Mother), the mother of two teenage sons (Joseph and Jose) and a toddler
(Daughter), appeals from the orders entered after the juvenile court declared
her children dependents of the court and made disposition findings. Mother contests the jurisdiction determinations
as to all three of her children. We
affirm.
On April
12, 2012, the Department of Children and
Family Services (DCFS) filed a first amended Welfare and Institutions Code
section 300 petition as to Mother’s children, Joseph (then age 16), Jose (then
age 14), and Daughter (then age 3), each having a different father.
disposition hearing on September 10,
2012. The court declared all
three children dependents and sustained allegations against Mother under
section 300, subdivisions (a) (serious physical injury) and (b) (failure to
protect) as to Joseph and Jose; (c) (serious emotional abuse) as to Jose only;
and (j) (abuse of sibling) as to all three children. The court placed Daughter at home with Mother
and Joseph and Jose with Jose’s father.
Mother filed a timely notice of appeal.
(§ 395, subd. (a)(1); see In re
following disposition].)
After
Mother filed her appeal, at a hearing on May
6, 2013, for a section 364 review as to Jose and Daughter and a
section 366.21, subdivision (e) review as to Joseph, the juvenile court
terminated jurisdiction over Joseph and Daughter and continued jurisdiction
over Jose. Joseph returned to Mother’s
home, where Daughter had remained with Mother.
Jose continued to reside with his father. The court set a section 364 review hearing as
to Jose for November 4, 2013.
Mother
contends that the evidence is insufficient to support the jurisdiction findings
against her as to all three of her children.
We disagree.
“The
purpose of section 300 is ‘to identify those children over whom the juvenile
court may exercise its jurisdiction and adjudge dependents.’ [Citation.]â€
(In re A.O. (2010) 185
Cal.App.4th 103, 110.) To declare a
child a dependent under section 300, the juvenile court must find by a
preponderance of the evidence that the allegations are true. (In re
Matthew S. (1996) 41 Cal.App.4th 1311, 1318; see § 355, subd. (a).) “‘[T]he
question under section 300 is whether circumstances at the time of the
hearing subject the minor to the defined risk of harm.’†(In re
A.J. (2011) 197 Cal.App.4th 1095, 1104.)
We review the court’s findings under section 300 for substantial
evidence and will affirm the judgment based on those findings if they are
supported by reasonable, credible evidence of solid value. (Matthew
S., at p. 1319.)
The
juvenile court sustained two separate allegations against Mother under
section 300, subdivision (a), which allows a dependency when “[t]he 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 . . . .â€
Paragraph
a-1 of the operative petition alleged under section 300, subdivision (a) that
“[o]n a prior occasion . . . [M]other . . . physically
abused the child Jose by throwing dishes at the child causing a dish to break
on the child’s foot. In 2010
. . . [M]other struck the child inflicting marks and bruises on the
child’s body. On a prior occasion
. . . [M]other struck the child with [her] hands. On a prior occasion . . . [M]other
threatened to strike the child with a bat.
On a prior occasion . . . [M]other pinned the child down and
threatened to strike the child. Such
physical abuse was excessive and causes the child unreasonable pain and
suffering[.] Such physical abuse of the
child by . . . [M]other endangers the child’s physical health and
safety and places the child and the child’s siblings, Joseph . . .
and [Daughter] at risk of physical harm, damage and physical abuse.†Paragraph a-2 of the operative petition
alleged under section 300, subdivision (a) that “[o]n
a prior occasion . . . [M]other . . . physically abused the
child Joseph, by choking the child. On
[a] prior occasion . . . [M]other attempted to mace the child. Such physical abuse was excessive and caused
the child unreasonable and suffering.
Such physical abuse of the child by . . . [M]other endangers
the child’s physical health and safety and places the child and the child’s
siblings, Jose . . . and [Daughter] at risk of physical harm, damage
and physical abuse.â€
The
juvenile court sustained the same two allegations, one regarding her conduct
toward Jose and one regarding her conduct toward Joseph, against Mother in
paragraphs b-1 and b-2 of the operative petition under section 300, subdivision
(b). Under section 300, subdivision (b)
the juvenile court may adjudge a child a dependent of the court when “[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 failure or inability of
his or her parent . . . to adequately supervise or protect the child, or 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, or by the willful or negligent failure of the parent
. . . to provide the child with adequate food, clothing, shelter, or
medical treatment, or by the inability of the parent . . . to provide
regular care for the child due to the parent’s . . . mental illness,
developmental disability, or substance abuse.â€
The juvenile court sustained an additional allegation
against Mother as to Jose in paragraph b-4 of the operative petition, which
alleged under section 300, subdivision (b) that “[o]n 10/21/2011, 10/21/2011,
10/25/2011, and on prior occasions . . . [M]other . . . excluded
the child Jose from the child’s home. On
a prior occasion, the child was forced to walk in the rain and was picked up by
law enforcement. Such exclusion of the
child from the child’s home by . . . [M]other endangers the child’s
physical health and safety and places the child and the child’s siblings,
Joseph . . . and [Daughter] at risk of physical harm, damage and
danger.â€
The
juvenile court also sustained an allegation against Mother as to Jose under
section 300, subdivision (c), which permits jurisdiction when “[t]he child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by severe
anxiety, depression, withdrawal, or untoward aggressive behavior toward self or
others, as a result of the conduct of the parent . . . or who has no
parent . . . capable of providing appropriate care.†To establish jurisdiction under section 300,
subdivision (c), DCFS must prove “(1)
serious emotional damage as evidenced by severe anxiety, depression, withdrawal
or untoward aggressive behavior or a substantial risk of severe emotional harm
if jurisdiction is not assumed; (2) offending parental conduct; and (3)
causation. [Citation.] ‘While evidence of past conduct may be
probative of current conditions, the question under section 300 is whether
circumstances at the time of the hearing subject the minor to the
defined risk of harm.’ [Citation.] Standing alone, the past infliction of harm
does not establish the substantial risk of future harm. Rather, ‘“[t]here must be some reason to
believe the acts may continue in the future.â€â€™
[Citation.]†(In re Brison C.
(2000) 81 Cal.App.4th 1373, 1379.)
Paragraph
c-1 of the operative petition alleged under section 300, subdivision (c) that
Mother had “emotionally abused [Jose] by calling the child derogatory names
including using the word ‘bitch’ as the child’s name. [M]other frequently withheld food from the
child causing the child to go to bed hungry.
[M]other removed the child’s bed frame and drawers from the child’s
room. [M]other refused to allow the
child to do laundry in the child’s home.
[M]other frequently excluded the child from the home. [M]other told the child on numerous occasions
[she] wished the child was never born.
[M]other[’]s ongoing emotional abuse of the child resulted in the child
exhibit[ing] self mutilating behavior.
Such ongoing emotional abuse of the child on the part of [M]other places
the child at substantial risk of suffering serious emotional damage as evidenced
by severe anxiety, depression, withdrawal, and aggressive behavior toward
. . . self or others.â€
The
juvenile court also made jurisdiction findings as to all three children under
section 300, subdivision (j), which permits a dependency when “[t]he
child’s sibling has been abused or neglected, as defined in subdivision (a),
(b), (d), (e), or (i), and there is a substantial risk that the child will be
abused or neglected, as defined in those subdivisions. The court shall consider the circumstances
surrounding the abuse or neglect of the sibling, the age and gender of each
child, the nature of the abuse or neglect of the sibling, the mental condition
of the parent . . . and any other factors the court considers
probative in determining whether there is a substantial risk to the child.â€
Substantial
evidence supports all of the jurisdictional findings of the juvenile
court. The juvenile court found Mother
lacked credibility, leaving Jose’s and Joseph’s accounts to support the
challenged findings. Those accounts show
the following. Jose did not want to
visit Mother; Mother was mean during visits.
Mother routinely called Jose “‘bitch’†and treated him like “crap.†Mother said she wished he were never born. Mother threw dishes at him. Mother held him down on the floor and
threatened to hit him if he did not give her his “iPOD†password. Jose sometimes felt it would be better if he
was not living in “this world.†He cut
himself twice on the arm, near the elbow.
Mother took away his bed, which Mother admitted. Mother kicked Jose out of the house late on a
rainy night and the police picked him up.
Mother choked Joseph on one
occasion and tried to mace him on another, which Joseph later recanted. Joseph has a history of cutting himself
because Mother was verbally abusive and had forced him to sleep in the
car. Joseph cut himself four to five
times, explaining he did so because it was “‘cool.’†Mother had Joseph arrested based on false
statements. According to the police,
Mother told them Joseph said to her, “‘You are Going to Make me Kill Myself’ as
he held [a] knife to his chest.â€
With respect to Daughter, she was
shaken and crying as a result of witnessing a violent episode between Mother
and Joseph. She was living at home with
Mother when the violence between her two siblings and Mother took place.
Based on the foregoing,
juvenile court’s jurisdictional findings.
Mother also argues that the juvenile court erred by
concluding that no reasonable alternatives existed to removal of Jose and
Joseph and that DCFS made reasonable efforts to prevent removal. As to both Jose and Joseph, substantial
evidence supports the removal finding based on the physical contacts between
Mother and the two minors. (See
183, 193 [disposition findings reviewed for substantial evidence].) And although Mother did not visit with Jose
as she expected, Jose did not want to visit with Mother, and Mother put certain
conditions on visitation. Given those
circumstances, substantial evidence supports the conclusion that DCFS made
reasonable efforts to bring the two together to prevent removal. (See ibid.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
I concur:
CHANEY, J.
>
ROTHSCHILD, J., concurring and dissenting
I concur in
the majority’s decision that substantial evidence supports dependency
jurisdiction over Jose P., Jr., based on the allegation against Mother under
Welfare and Institutions Code section 300, subdivision (a)
but dissent with respect to the other jurisdiction findings as to Jose and all
jurisdiction findings as to Mother’s son Joseph M. and her daughter E.M.
The section
300, subdivision (a), allegation against Mother regarding Jose stated that,
“[o]n a prior occasion . . . [M]other . . . physically abused the child Jose by
throwing dishes at the child causing a dish to break on the child’s foot. In 2010, the mother struck the child
inflicting marks and bruises to the child’s body. On a prior[] occasion, the mother struck the
child with the mother’s hands. On a
prior occasion the mother threatened to strike the child with a bat. On a prior occasion, the mother pinned the
child down and threatened to strike the child.â€
I agree
with the majority that substantial evidence supports the sustaining of this
allegation. According to the evidence,
Jose reported that, “once he did not do the dishes he was supposed to do and
his mother then took a stack of dishes and threw them at [him] one at a time. He stated that one of the dishes broke on his
foot and that his mother ‘made [him] clean it up because she said [he] made her
do it.’†He said that Mother “‘came with
this big stack of [dishes] and just started throwing them at [him.] Another time she took the stick out of the
window that she uses to keep the window locked and she tried to hit [him] with
it. When [he] put [his] arms up, she
tried to stick the stick up [his] butt. . . . She has hit [him] in [his] legs
with the stick, but [he] do[es]n’t remember if there were marks or
bruises. The time that she pinned [him]
down was when she was trying to get [him] to tell her [the] password to [his]
iPod. [He] wouldn’t give it to her
because [he] knew that she would keep it and the iPod was [his], it was a
birthday gift.’†Jose’s paternal
grandmother reported that, in or about October 2010, Mother had “hit Jose and
left marks on his body.†The grandmother
said that Jose had “disclosed [that] mother hits him with her hand and has
tried hitting him with a bat.†This
evidence, combined with the acrimonious relationship that continued between
Mother and Jose at the time of the jurisdiction and disposition hearing and
Mother’s failure to acknowledge her conduct toward Jose, is sufficient to
support the jurisdiction finding as to Jose under section 300, subdivision (a),
based on a substantial risk of his suffering serious physical harm inflicted
nonaccidentally upon him by Mother.
I disagree,
however, with the majority with respect to jurisdiction based on the other
allegations sustained by the juvenile court.
The other
section 300, subdivision (a), allegation stated that, “[o]n
a prior occasion, . . . [M]other . . . physically abused the child Joseph[] by
choking the child. On prior
occasion, the mother attempted to mace the child.†Joseph initially “denied any neglect or abuse
at home.†He later stated that Mother
had “‘choked [him] for [his] iPod,’†with “her hands around his neck,†and had
“tried to spray him with the mace on her keychain.†He, however, also reported that Mother
“‘didn’t have her hands on [his] neck and she didn’t try to mace [him]. [He] didn’t tell the social worker that [his]
mom tried to mace [him]. She (mom)
called the police on [him] because [he] didn’t want to give her [his] iPod. Her hands were on [his] pocket, not around
[his] neck.’†At the time of the
jurisdiction and disposition hearing, Joseph was 17 years old and six feet
tall. He wanted to return to live with
Mother. Although the majority relies on
the juvenile court’s finding that Mother lacked credibility, leaving Joseph’s
account as the evidence, Joseph’s reports of Mother’s physical contact with him
were conflicting and unsubstantiated.
The other evidence of violence between Joseph and Mother relied on by
the majority was part of allegations that were dismissed by the juvenile
court. As a result, given Joseph’s
conflicting and unsubstantiated reports about physical contact with Mother,
Joseph’s age and size at the time of the hearing and his desire to live with Mother,
I believe the evidence does not sufficiently establish a substantial risk of
Joseph suffering serious physical harm inflicted nonaccidentally upon him by
Mother.
Nor
do the allegations as to Joseph under section 300, subdivision (a), support
jurisdiction over Jose or the daughter.
As noted, jurisdiction over Jose under section 300, subdivision (a), was
proper based on the allegation regarding Mother’s conduct toward Jose. Thus, the section 300, subdivision (a),
allegation as to Jose based on Mother’s conduct toward Joseph is
superfluous. And no evidence suggests
that the daughter was at substantial risk of serious physical harm based on
Mother’s conduct toward Joseph.
The
juvenile court sustained the same two allegations based on physical abuse, one
regarding Mother’s conduct toward Jose and one regarding her conduct toward
Joseph, under section 300, subdivision (b).
The allegations relate to physical abuse. They do not suggest that Mother failed to
protect her children from others. Nor do
the allegations suggest that Mother was unable to adequately supervise her
children, for example, because she suffered from a “mental illness,
developmental disability or substance abuse.â€
(In re James R. (2009) 176
Cal.App.4th 129, 135.) I conclude that
no basis exists for jurisdiction over any of the children under section
300, subdivision (b), based on Mother’s alleged physical abuse of Joseph and
Jose.
The juvenile court sustained an additional allegation under
section 300, subdivision (b), that, “[o]n 10/21/2011, 10/21/2011, 10/25/2011,
and on prior occasions, . . . [M]other . . . excluded the child Jose
from the child’s home. On a
prior occasion, the child was forced to walk in the rain and was picked up
by law enforcement.†I do not believe
the evidence is sufficient to support jurisdiction based on this
allegation. Even assuming that Mother
excluded Jose from the home as alleged, no evidence exists that he
suffered any physical harm or illness, much less serious physical harm or
illness, as a result of the incidents.
Moreover, at the time of the jurisdiction and disposition hearing, Jose
was living with his father, as he wanted, and thus not at substantial risk of
suffering future serious physical harm or illness from being excluded from
Mother’s home. Even if Jose were to
return at some point to Mother’s custody, based on his age and relationship
with his father and paternal grandmother, no evidence suggests that he would
suffer future serious physical harm or illness if Mother again excluded him
from the home. Nor does the evidence
support jurisdiction over Joseph and the daughter based on the allegation of
Mother’s conduct in excluding Jose from the home. No evidence exists that Joseph or the
daughter was at substantial risk of serious physical harm or illness due to
Mother’s conduct in excluding Jose from the home.
The
section 300, subdivision (c), allegation provided that Mother had “emotionally
abused [Jose] by calling the child derogatory names including using the word
‘bitch’ as the child’s name. The child’s
mother frequently withheld food from the child causing the child to go to bed
hungry. The mother removed the child’s
bed frame and drawers from the child’s room.
The mother refused to allow the child to do laundry in the child’s home. The mother frequently excluded the child from
the home. The mother told the child on
numerous occasions the mother wished the child was never born. The mother[’s] ongoing emotional abuse of the
child resulted in the child exhibit[ing] self mutilating behavior. Such ongoing emotional abuse of the child on
the part of the mother places the child at substantial risk of suffering
serious emotional damage as evidenced by severe anxiety, depression,
withdrawal, and aggressive behavior toward . . . self or others.â€
Even
assuming Mother acted toward Jose as alleged, substantial evidence does not
establish that, at the time of the jurisdiction and disposition hearing, he
exhibited the requisite severe anxiety, depression, withdrawal and aggressive
behavior for the juvenile court to acquire jurisdiction under section 300,
subdivision (c). When first interviewed
in October 2011, Jose “said that at times he thinks it would be better if he
was not living in this world but he has not attempted to hurt himself; however,
he has thoughts about cutting his wrists.
Child said that about a year ago (2010), he cut himself twice†“on the
inside of his elbow. . . . Child denie[d] having ever cut on his wrists.†At the jurisdiction and disposition hearing
almost a year later, however, no evidence was presented that Jose was suffering
from severe anxiety, depression, withdrawal and aggressive behavior. He was doing well living with his
father. He and his father periodically
attended cognitive behavior family therapy and were cooperative with
treatment. The therapist indicated “a
positive relationship between Jose and his father†and “numerous reports from
Jose . . . that he enjoys living with his father[.]†The therapist did not mention any issues of
severe anxiety, depression, withdrawal and aggressive behavior but simply
explained Jose’s feelings toward Mother, his view on their inability to get
along and his reason for not wanting to visit with her. Given Jose’s progress and positive
relationship with his father at the time of jurisdiction and disposition,
Jose’s report of his feelings in October 2011 and his cutting himself
under his elbow a year earlier is insufficient to support a jurisdiction
finding over Jose under section 300, subdivision (c). Moreover, no evidence supports a
determination that, because of Mother’s conduct toward Jose as alleged under
section 300, subdivision (c), Joseph was at substantial risk of serious
emotional damage. At the time of
jurisdiction and disposition, Joseph, then 17 years old, wanted to live with
Mother.
The
juvenile court also made jurisdiction findings under section 300,
subdivision (j). Although I agree
with the majority that the physical abuse allegation under section 300,
subdivision (a), supports jurisdiction as to Jose, I disagree that the other
allegations under section 300, subdivisions (a), (b) and (c), support
jurisdiction. Under that analysis,
section 300, subdivision (j), can support jurisdiction over Joseph or the
daughter only if, based on the allegation under section 300, subdivision (a),
a substantial risk exists that Joseph or the daughter will be abused as
defined in section 300, subdivision (a).
(See § 300, subd. (j).) I do
not conclude that substantial evidence exists of such a risk. As noted, at the time of jurisdiction and
disposition, Joseph was 17 years old and six feet tall and wanted to return to
live with Mother. Given those
facts, Mother’s physical abuse of Jose in years prior does not demonstrate a
substantial risk that Joseph would be similarly abused in the future. According to the evidence, Mother had a
positive relationship with the daughter and took good care of her. The daughter, who was much younger than her
teenage half-brothers, remained with Mother during the dependency proceedings,
and no issues were noted between Mother and the daughter. In fact, all DCFS reports indicated that the
daughter was doing well with Mother.
Joseph also said that Mother treated the daughter well. Although Mother said that the daughter had
been “shaken and crying†after an altercation Mother had reported between her
and Joseph, Mother acknowledged the daughter was “unharmed.†As a result, I believe the evidence is
insufficient to support a finding that a substantial risk of similar abuse
existed to the daughter based on Mother’s physical abuse of Jose as
described in the section 300, subdivision (a), allegation. For these same reasons, the evidence does not
support jurisdiction over Joseph or the daughter based on the sustaining of the
section 300, subdivision (a), allegation regarding Mother’s physical abuse of
Jose.
title="">[3]
ROTHSCHILD, J.
Welfare and Institutions Code.
name="_ftn2" title="">[2] Statutory references are to the Welfare and Institutions
Code.
