In re J.P.
Filed 11/8/13 In re J.P. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
In re J.P., a Person Coming Under
the Juvenile Court Law.
H039300
(Santa Clara
County
Super. Ct.
No. JD21424)
SANTA
CLARA COUNTY
DEPART. OF FAMILY AND CHILDREN'S SERVICES,
Plaintiff and
Respondent,
v.
J.P. et al.,
Defendants and
Appellants.
Mother M.L.
and father J.P. (collectively, parents) appeal the juvenile court’s judgment
finding jurisdiction over their infant son J.P.
pursuant to Welfare and Institutions Code section 300, subdivisions (a) and
(b).
court’s dispositional order terminating father’s physical custody of J.P. pursuant
to section 361, subdivision (c)(1). For
the reasons stated here, we find that substantial evidence supports the
juvenile court’s jurisdictional and dispositional findings, and we will affirm
the orders.
I.
Factual and procedural
background
On September 13, 2012, at around 10:00 p.m., parents picked up four-month-old J.P.
from his maternal grandparents’ house and took him to father’s duplex in San
Jose. When they
picked up J.P., neither the parents nor the maternal grandparents reported
seeing any injuries to J.P. When they
went to bed, mother placed J.P. in a playpen located next to parents’ bed. Mother stated she slept on the bed directly
next to the playpen and father slept on the bed on her other side.
Mother woke
up around 4:30 a.m. to feed J.P. She stated he was crying but she did not
notice any injuries because it was dark.
Around 7:00 a.m. the next day, September
14, mother saw a mark on J.P.’s cheek. Around noon
that day, after taking off the “onesie†J.P. had been wearing, parents noticed
marks on his upper left arm. J.P. was in
parents’ sole custody and care between picking him up from the maternal
grandparents’ house and the discovery of the marks.
Upon
discovering the marks, mother took pictures of them. Parents returned to J.P.’s maternal
grandparents’ house that evening to show the maternal grandmother. While there, J.P.’s maternal aunt saw photos
mother had taken of his injuries and, believing they were inflicted by father,
reported the matter to the authorities.
In the early morning of September 15, police arrived at the maternal
grandparents’ house in response to the child abuse report. Officer Stacy Thoni of the San Jose Police
Department noted in a police report that she found J.P. “with a bruise and two
arching red marks (possible bite marks) on his left shoulder, and two arching
red marks on his right cheek.†The cheek
marks were each approximately one inch long and were faint when Officer Thoni
viewed them. The marks on J.P.’s left
shoulder were one to one and one-half inches long and accompanied by a bruise
of one and one-half inches in diameter.
When asked
by the police how J.P. sustained the injuries, parents did not have an
explanation. Officer Thoni’s report
indicated mother informed her the injuries might have been caused by “some sort
of ghost, spirit, or demon . . . .†The
other responding officer, Officer Brum, stated in his report that father provided
a similar explanation and told the officer he had not taken J.P. to the
hospital because he feared he would be accused of child abuse. The officers allowed J.P. to remain with the
parents pending further investigation.
At the time of the incident, father was 19 and mother was 18.
In response
to a referral from the police, emergency response social worker Thuy Tran of
the Santa
Clara County Department of Family and Children’s Services (Department) visited
the parents later on September 15. After
interviewing the parents, Tran suggested they take J.P. to the hospital. Parents took J.P. to a Kaiser hospital on September
15, where he was treated by a number of physicians, who reported that he had a
scratch on his face. As for the arm
injury, the doctors agreed it was most likely caused by a human bite. One doctor opined it was probably child-sized
while another could not determine whether the bite was from an adult or a
child. The doctors also performed a
skeletal survey and a CT scan of J.P.’s head and found no additional injuries
or abnormalities.
On September
19, Dr. Melissa Egge, a child abuse expert retained by the Department, examined
J.P. Dr. Egge had previously reviewed
photographs of the injuries on J.P.’s face and arm and concluded with a high
degree of certainty that all of the injuries were the result of adult-sized
bites. Dr. Egge based her conclusion on
a scholarly article from 1986 regarding bite mark evidence, which, according to
Dr. Egge, stated that bite marks with a diameter of three centimeters or more
were most likely caused by an adult.
When she measured the bite marks in the photographs, she determined they
were “about three centimeters across or more . . . .â€
During the
Department’s investigation, father disclosed that he was briefly hospitalized
shortly after J.P.’s birth in May 2012 due to a psychiatric incident. He signed a release allowing the Department
access to the medical records from that hospitalization. During that incident, father reported seeing
a black orb while he was in a room with mother and J.P. and that he heard a
voice say “I want your baby and I want you gone.†Father reported the incident to mother and
the maternal grandparents, who took him for treatment. He was admitted to the hospital for approximately
five hours and diagnosed by a licensed clinical social worker with temporary
psychosis, not otherwise specified, as well as major depression and anxiety
disorder.
Importantly,
father reported to the doctor at the time of the psychiatric incident that he
blacked out for a moment and awoke to find himself preparing to squeeze J.P.’s
head but stopped short of carrying out the act after hearing his deceased grandmother
tell him not to harm J.P. Father also
told the licensed clinical social worker that he used to take medication to
treat Tourette’s syndrome but had stopped taking the medication because of unpleasant
side effects. When asked whether he
would harm J.P., father responded “I will never hurt him. He’s my son.†Following the psychiatric incident, father met
with a licensed clinical social worker on two or three occasions for
psychiatric therapy.
Apart from
the possibility of paranormal activity, two other explanations were suggested
for J.P.’s injuries. First, parents noted
that J.P. might have been bitten by another child while in the care of his paternal
grandmother. His paternal grandmother took
J.P. to Chuck E. Cheese’s on September 13 with a two- or three-year old girl
who, “according to [paternal grandmother], has a known history of biting.†However, in an interview with Department
social worker Heather McIntosh, the paternal grandmother stated that she did
not believe the girl had an opportunity to bite J.P. Moreover, the paternal grandmother informed McIntosh
that the manager of the restaurant had reviewed the security video at her
request and did not observe J.P. being bitten.
Although the video did not show J.P. being bitten, father told McIntosh
there were two periods where J.P. was not being recorded. Second, J.P.’s paternal grandmother told
McIntosh that J.P. might have been injured by using a new rope swing she had
installed in her doorway. When asked
whether this was a realistic possibility, however, Dr. Egge stated that the
marks were “not consistent with an infant swing injury.â€
As a result
of Tran’s initial investigation and Dr. Egge’s examination of J.P., the
Department filed a juvenile dependency petition in the Santa Clara County Superior
Court on September 19. The petition alleged
that J.P. suffered, or was at substantial risk of suffering, serious physical
harm inflicted nonaccidentally by his parents (§ 300, subd. (a)) and that he
suffered, or was at substantial risk of suffering, serious physical harm or
illness as a result of any of the following:
(1) the failure or inability of his parents to supervise or protect J.P.;
(2) the willful or negligent failure of J.P.’s parents to supervise or protect
him from the conduct of a custodian with whom he was left; or (3) the inability
of father to provide regular care for J.P. due to father’s mental illness (§ 300,
subd. (b)). The Department also sought a
warrant to remove J.P. temporarily from parents’ custody. The juvenile court detained J.P. on September
24 and placed him with his maternal grandparents.
In October 2012,
the Department filed a second amended juvenile dependency petition.
references to injuries J.P. had reportedly sustained in June 2012. It also integrated allegations, based on the
opinion of Dr. Egge, that the injuries J.P. sustained between September 13 and September
14 were “indicative of inflicted trauma.â€
The allegations continued that, because parents were J.P.’s sole
caretakers during that period, the presumption of section 355.1 - that J.P.
“sustained injuries of such a nature as would ordinarily not be sustained
except as the result of the unreasonable or neglectful acts or omissions of [J.P.’s]
parents†- applied to make J.P. subject to dependency
jurisdiction.
The
Department prepared a social worker jurisdiction report and a series of four
addenda detailing its investigation. The
initial report and the first two addenda recommended dismissing the dependency petition
without prejudice and helping the family through informal supervision. In the third addendum, however, the
Department changed its recommendation to a finding of jurisdiction based on Dr.
Egge’s opinion regarding J.P.’s injuries.
While the third addendum recommended that the juvenile court assume
jurisdiction over J.P., the Department continued to recommend a disposition
involving joint custody and informal supervision. The recommendation of informal supervision
rather than family maintenance was based in part on the high level of cooperation
the parents had displayed throughout the process. The third addendum reported that while
parents had not had complete compliance with recommended case plan services,
their incomplete compliance was at least partially attributable to the parents’
efforts to find full-time employment as well their handling of a miscarriage
mother reportedly suffered in November 2012.
The fourth
addendum recommended even greater supervision.
That addendum recommended a finding of jurisdiction and formal family
maintenance supervision due to two changed circumstances discovered by the
Department. The first was heightened
familial conflict in both extended families as well as an incident of domestic
violence between parents in December 2012 that involved pushing and the
possible slapping of mother by father. Although
neither parent sustained serious injuries, there was no police involvement, and
J.P. was not present during the altercation, McIntosh wrote that the incident
“reflects the instability of the parents’ relationship, which ultimately poses
a risk for [J.P.] in the future.â€
The second change
leading to the amended recommendation was the parents’ “great difficulty in
engaging in services.†While both
parents had previously expressed interest in complying with recommended
services such as parenting classes, “their compliance with recommended services
has not been consistent with their verbal intentions.†In sum, while McIntosh noted that the parents
had been cooperative, she felt “Court intervention will help the parents to
follow through with these services that are in place to ensure [J.P.’s] safety
in the future.†Despite these changed
circumstances, however, the Department still recommended that both parents
retain custody of J.P.
During the combined
jurisdiction and disposition hearings, which took place in January and February
2013, the court heard testimony from multiple witnesses, including Dr. Egge,
who was qualified as an expert witness in the fields of child abuse and skin
findings, and McIntosh, who was qualified as an expert witness in child abuse,
risk assessment, and the placement of dependent children. These experts restated and explained the
opinions contained in the social worker reports and addenda. At the close of evidence, the juvenile court
allowed each party to provide arguments regarding jurisdiction. Mother and father were separately represented
and both argued that the court should not exercise jurisdiction over J.P. Regarding J.P.’s injuries, the parents argued
the Department had not shown by a preponderance of the evidence that they were
due to any action or negligent supervision by the parents. Father also argued the bites were likely the
result of the child who had accompanied the paternal grandmother and J.P. to Chuck
E. Cheese’s on September 13, which was consistent with one Kaiser doctor’s opinion
that the bites were child-sized. Minor’s
counsel argued that the court should accept Dr. Egge’s expert testimony, that
the evidence supported the section 355.1 presumption, and that parents had not
overcome the presumption. The
Department’s arguments in favor of jurisdiction were generally in line with
those made by J.P.’s attorney.
After
hearing arguments from counsel, the juvenile court amended allegations a-4 and
b-4 of the second amended petition to conform to proof so that they read: “Further, Dr. Melissa Egge opines that the
four-month old child’s injuries are indicative of inflicted trauma
of the second amended petition true and assumed jurisdiction over J.P. The court explained that the jurisdictional
decision was “based on all of the evidence, the testimony that was received,
the evidence that was received during the trial, as well as everything that was
documented in the reports that had been admitted . . . .†Additionally, the court stated that it found
“Dr. Egge to be a credible, competent expert witness whose testimony and
opinion the Court greatly relied [sic]
and found to be most significant, most helpful and compelling.†In making its jurisdictional determination,
the court did not mention the section 355.1 presumption.
Turning to disposition,
the juvenile court first had a chambers conference off the record. After the conference, the court indicated on
the record that a chambers meeting had occurred and that its tentative decision
was to remove custody from the father. It
did not, however, explain the reasoning behind the tentative decision. The court then allowed the parties to make
arguments regarding disposition. Mother,
father, and the Department urged the court to adopt the recommendations of the
fourth addendum, which called for formal family maintenance supervision with
custody to be retained by both parents. Minor’s
counsel recommended removing J.P. from both parents due to the substantial risk
of future harm “by biting or other punitive measures . . . [¶] [a]t the hands
of these parents.â€
After hearing
the parties’ arguments, the court removed J.P. from father’s physical custody and
ordered that mother retain custody under the Department’s family maintenance supervision. The court also ordered that father receive
services from the Department’s family reunification program as well as a
psychological evaluation. Finally, the court
granted father supervised visits with J.P. at a least two times per week.
II.
Discussion
Two issues are
raised on appeal, which we will address in turn: (1) whether substantial evidence supported the
juvenile court’s assumption of jurisdiction pursuant to section 300, subdivisions
(a) and (b); and (2) whether substantial evidence supported the trial court’s
dispositional finding removing custody from father pursuant to section 361, subdivision
(c)(1).
A. Jurisdictional
Findings (§ 300, subds. (a) & (b))
We review a
court’s jurisdictional findings for substantial
evidence. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) “Substantial evidence is evidence that is ‘reasonable,
credible, and of solid value;’ such that a reasonable trier of fact could make
such findings.†(In re Sheila B. (1993) 19 Cal.App.4th 187, 199, quoting
924.) “[A]n appellate court defers to
the trier of fact on [factual] determinations, and has no power to judge the
effect or value of, or to weigh the evidence; to consider the credibility of
witnesses; or to resolve conflicts in, or make inferences or deductions from
the evidence. We review a cold record
and, unlike a trial court, have no opportunity to observe the appearance and
demeanor of the witnesses.†(
The
juvenile court established jurisdiction over J.P. pursuant to both subdivision (a)
and subdivision (b) of section 300.
1.
Section 300, Subdivision (a)
To adjudge
a minor a dependent child pursuant to subdivision (a), a court must find that
“[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 or guardian.†(§ 300, subd.
(a).)
The
evidence before the juvenile court established that no caregiver saw any marks
or injuries on J.P. when parents picked him up on the evening of September 13
and took him to father’s residence.
Parents both indicated that J.P. was in their sole custody between
picking him up on the 13th and the discovery of the marks on his cheek the next
day. Dr. Egge unequivocally stated her
expert opinion that the marks on J.P.’s cheek and arm were made by an
adult. Although the identity of the
specific individual who inflicted the injuries was not determined, the
Department provided substantial evidence that either mother or father was
responsible for J.P.’s injuries. Further,
substantial evidence supported a finding of substantial risk of future harm
because, though parents had been cooperative, they had not followed through
with all requested services recommended by the Department, including completing
a parenting without violence class.
name="_ftnref5" title="">[5] Substantial evidence supported the juvenile
court’s jurisdictional determination pursuant to section 300, subdivision (a).
Evidence
relied on by parents in their appellate briefing does not change this
result. Parents emphasize that J.P. was
wearing an outfit that covered his arms all day on September 13 that was not
removed until mother’s discovery of his injuries on September 14. Based on this, parents suggest that J.P.’s
injuries could have been sustained at an earlier time while he was in the
custody of another caregiver, such as his paternal or maternal
grandmother. However, regardless of when
J.P.’s outfit was changed, there was no evidence to suggest that anything he
was wearing would have covered the injury he sustained on his cheek, an injury
that no one reported seeing until the morning of September 14.
As for parents’
related explanation that J.P. might have sustained the injuries at Chuck E. Cheese’s,
the juvenile court had ample evidence to find the explanation unreasonable. The paternal grandmother, who had taken J.P. and
a female toddler to the restaurant, stated that she did not believe the girl
had bitten J.P. Additionally, the surveillance
video from the restaurant reportedly showed no instance where the toddler or any
other individual bit J.P., though there were apparently two periods of time where
J.P. was not in the range of the camera.
Finally, Dr. Egge testified with a high degree of certainty based on a
scholarly study on bite mark identification
that the injuries J.P. sustained were the result of adult-sized bites, undermining
parents’ theory that a child bit J.P. Although
at least one doctor who treated J.P. on September 15 opined in his report that
the bite on J.P.’s arm appeared to be child-sized, the juvenile court was
entitled to rely on the expert testimony of Dr. Egge that contradicted the
other doctor’s opinion. Such credibility
determinations are the province of the trial court.
2.
Section 300, Subdivision (b)
The
juvenile court found true the allegations in the second amended petition that a
jurisdictional finding pursuant to section 300, subdivision (b), was warranted
for J.P. because J.P. had suffered, or was at a substantial risk of suffering,
serious physical harm or illness due to each of the following: (1) parents’ failure or inability to adequately
supervise or protect J.P.; (2) parents’ failure or inability to adequately supervise
or protect J.P. from the conduct of other custodians; and (3) father’s
inability to provide regular care for J.P. due to his mental illness.
The same
substantial evidence that supported a jurisdictional finding under section 300,
subdivision (a), supported a jurisdictional finding of parents’ failure or
inability to supervise or protect J.P.
As determined by the juvenile court, J.P. suffered multiple adult-sized
bites while in the exclusive custody of his parents between September 13 and September
14. The failure of parents to prevent
J.P. from sustaining these injuries shows an inability to protect him. Regarding current risk of harm at the time of
the jurisdictional hearing, which is required to find jurisdiction under section
300, subdivision (b), (In re J.N., supra,
181 Cal.App.4th at p. 1023), the juvenile court was entitled to rely on the
Department’s reports, which noted that parents had failed to attend and
complete parenting without violence classes.
The September 2012 injuries, the parents’ failure to take responsibility
for them, and the parents’ failure to complete recommended services provided
the juvenile court with substantial evidence to support a finding of failure or
inability to supervise.
Turning to
the allegation specific to father, the juvenile court determined that father’s
major depression and anxiety disorder, as well as his brief psychiatric
hospitalization in May 2012 for auditory and visual hallucinations, supported
jurisdiction. According to father’s
psychiatric records as well as his statements to police and social workers, in
May 2012, shortly after J.P.’s birth, father saw a dark figure enter the room
occupied by father and J.P. Father heard
a voice say “I want your baby and I want you gone.†Father then blacked out momentarily before
awaking to find himself preparing to squeeze J.P.’s head. Father declined to carry out the act after
hearing his deceased grandmother tell him not to harm J.P. After the incident, father attended two or
three counseling sessions with a licensed clinical social worker.
From the
foregoing, the juvenile court had substantial evidence to support its conclusion
that J.P. was at substantial risk of suffering serious physical harm or illness
as a result of father’s inability to provide regular care for J.P. due to
father’s mental illness. While the
presence of a mental illness in a parent will not trigger a jurisdictional
finding pursuant to section 300, subdivision (b), if there is no nexus between
the illness and a risk of harm to the child, here father stated he found
himself about to squeeze J.P.’s head after experiencing hallucinations. This provided a direct nexus that supports
jurisdiction. Further, the Department’s
risk assessment expert Ms. McIntosh suggested that father’s mental illness posed
a continuing risk to J.P. when she opined that, absent a counselor’s statement
that father did not need further treatment, father’s attendance at two or three
counseling sessions was inadequate. Substantial
evidence supported the juvenile court’s jurisdictional finding relating to
father’s mental illness.
B. Dispositional
Findings (Section 361, subd. (c)(1))
Father
challenges the juvenile court’s decision to remove custody. We review a juvenile court’s dispositional
findings for substantial evidence. (
1022.)
After an
unrecorded chambers conference, the juvenile court returned J.P. to mother’s
custody subject to formal family maintenance.
In removing J.P. from father’s custody, the court paraphrased section 361,
subdivision (c)(1), when it made the following dispositional findings on the
record: “By clear and convincing
evidence, the welfare of the child requires that his physical custody be taken
from the father . . . with whom the child was residing when the petition was
initiated as there is or would be substantial danger to the physical health,
safety, protection, or physical or emotional well being of the minor if the
minor were returned home to his father’s care, and there are no reasonable
means by which the minor’s physical health can be protected without removing
the child from father’s physical custody.â€
Substantial
evidence supported the juvenile court’s dispositional finding. The juvenile court found true the second
amended petition’s allegation that J.P.’s injuries occurred when he was in the
exclusive care of his parents.
Additionally, although the Department recommended that father retain
custody of J.P. with mother, its fourth addendum report disclosed an incident
of domestic violence between parents, during which father allegedly slapped
mother. During her testimony, the risk
assessment expert Ms. McIntosh indicated the presence of domestic violence
created a risk of harm to J.P. Given father’s
history of witnessing domestic violence as a child, McIntosh explained that he
was at a higher risk of carrying out domestic violence himself, which created further
risk of harm to J.P.
The most
compelling evidence supporting the juvenile court’s dispositional order was
father’s unresolved mental health issues.
McIntosh stated that one concerning aspect of father’s mental health
records was his statement that “he, for a moment, felt like squeezing [J.P.’s]
head . . . .†That statement, along with
McIntosh’s opinion that father needed additional therapy to resolve his mental
health issues and the lack of any expert testimony that father’s mental health
was no longer a concern, supported the court’s finding that father was a substantial
danger to J.P.’s physical and emotional health, safety, protection, and
well-being. (§ 361, subd. (c)(1).)
III.
Disposition
For the foregoing reasons, the juvenile court’s jurisdictional
and dispositional orders are affirmed.
____________________________________
Grover,
J.
____________________________
Premo,
Acting P.J.
____________________________
Mihara, J.
son, not to father.
Welfare and Institutions Code.
