In re Jemely Z.
Filed 9/4/13
In re Jemely Z. CA 2/2
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re JEMELY Z., et al., Persons Coming Under the Juvenile
Court Law.
B246576
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent.
v.
JERARDO Z.,
Defendant
and Appellant.
Super. Ct.
No. CK96043)
APPEAL
from orders of the Superior Court
of
County. Sherri Sobel,
Juvenile Court Referee. Affirmed.
Jesse McGowan,
under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jessica S. Mitchell, Deputy County Counsel for Plaintiff and Respondent.
Jerardo
Z. (father) appeals from the juvenile court’s jurisdictional orders
establishing dependency jurisdiction
over two of his children, Jemely (born April 2009) and Antonio (born October
2012), pursuant to Welfare and Institutions Code section 300.
orders requiring him to attend anger
management and parenting classes. Father contends that substantial evidence does
not support the juvenile court’s jurisdictional findings as to him, and that
the juvenile court erred in ordering him to attend anger management and
parenting classes. We find father’s
contentions unavailing and affirm.
Father
and Emely N. (mother) are the parents of Jemely and Antonio
December 2003). Father is also the
father of Dominic, who was 14 years old at the time of the proceedings.
relationship, with mother and the children occasionally living with father in
Merced, California, and occasionally returning to Downey, California to live
with maternal grandmother (MGM).
Initial detention
The
family came to the attention of the Los Angeles County Department of Children
and Family Services (DCFS) in October 2012 when mother gave birth to Antonio in
a motel room after using methamphetamine.
Antonio was taken to Downey Regional
Medical Center
and then to White Memorial
Hospital because he tested positive
for methamphetamine and was jittery at birth.
Antonio was born at 34 weeks gestation after mother went into premature
labor due to her drug use.
Mother
admitted she had about one year experience with methamphetamine use. Mother was using methamphetamine during the
first trimester of her pregnancy. She
stopped for a while after discovering her pregnancy, but resumed again about
two months before Antonio’s birth.
The
social worker interviewed father in person on October 4 and 5, 2012, and in
subsequent phone calls and meetings.
Father was aware of mother’s drug use.
He had taken her to a prenatal appointment early in her pregnancy, and
she tested positive for methamphetamine.
Father tried to help mother by taking her to AA meetings. Father denied a drug history himself. He stated he was able to care for both Jemely
and Antonio. He had made arrangements
with his job for time off, and had some savings to hold him over.
The
social worker also interviewed MGM and Mike.
According to MGM, she had been a part of Mike’s life since his birth and
was able to care for him as long as necessary.
DCFS
took the children into protective custody on October 15, 2012.
Mike was placed with MGM, and Jemely and Antonio were released to
father.
Section 300 petition and detention
On
October 18, 2012, DCFS filed
a section 300 petition alleging that the children were at risk due to mother’s
methamphetamine use and baby Antonio’s positive screening for methamphetamine
at birth.
On
October 18, 2012, the
juvenile court held a detention hearing.
The court made detention findings with respect to mother. The court detained Mike with MGM and released
Jemely and Antonio to father. The court
ordered visits for mother three times per week to be monitored by a DCFS
approved monitor.
November 15, 2012
In
its November 15, 2012
detention report, DCFS set forth the details of an interview with Mike. Mike reported that father had hit him on
several occasions with a belt and a slipper on his buttocks, causing pain. Mike made the same statement in a separate
interview with the MAT assessor, Ms. Marin.
that father would force him to clean up the basement of the family home and
pick up live cockroaches. Mike also
stated that father would force him to eat foods he did not like and threatened
that Mike would have to eat his vomit if he threw up the unwanted food.
DCFS
also reported that a referral was made to Merced
County as to allegations of
physical abuse by father against Dominic.
Dominic resided part-time with father and part-time with his mother,
Myra P. The referral was assigned to
Child Protective Services of Merced County.
DCFS was informed that the referral had not yet been investigated.
On
November 5, 2012, a DCFS
social worker interviewed Mike at MGM’s home.
Mike was mature and articulate.
He stated that he liked living in Merced,
that the home was nice and he had friends there. When asked if he preferred to live in Merced
with his stepfather or in Downey
with MGM, Mike responded, “I don’t know if I want to go with him. I could stay here with my grandmother because
I have friends here too and maybe I could stay with [father] too.†Mike indicated that he liked father and
denied being afraid of him.
The
social worker specifically asked Mike about discipline. Mike responded that sometimes father would
turn the television away from him or make him sit down on his bed and
think. When asked if there was anything
else, Mike stated, “Sometimes he would hit me with a soft chancla (slipper) or
with a belt. First, he would hit me with
a chancla and then if I still didn’t listen, he would hit me with a belt.†Mike stated he would only get hit on the
buttocks with his pants on. The social
worker asked Mike if it hurt when father hit him, and Mike responded, “Well, he
hits me hard when he’s in a bad mood and soft when he’s not in a bad mood. When he hits me hard, it hurts.†The social worker asked if he ever noticed a
mark on his buttocks, to which Mike replied, “I can’t see my butt so I don’t
know. But there was never blood.†Mike denied that mother ever noticed a
bruise. The child explained that father
began hitting him with a belt when he was in the first grade, at age six. Prior to first grade, father would only hit
him softly on the hand. Mike indicated
that Dominic would be disciplined in the same way. He denied that father ever used physical
discipline with Jemely.
In
an interview on November 7, 2012,
father stated that he was raised “strict.â€
When asked about discipline, he stated that he would turn off the
television or tell the children to go to their rooms and think about what they
had done. As to Mike, father stated, “I
was strict with him. My family was
strict with me so I’m strict. I admit
I’m strict. I have a strong attitude. I hate lies.â€
Father initially denied using physical discipline with Mike or Dominic,
but then stated, “Actually, one time in Merced, I took my daughter’s belt and I
hit my son and Mike on the butt with the belt.
They were fighting and I hit them with the belt. It was just that one time.†Father denied leaving any marks or bruises on
the children, and denied having the children pick up live insects. Father also denied threatening Mike with the
punishment of eating his own vomit.
However, father admitted to telling Mike that he had to eat tuna. Father tells the children that they must eat
whatever food is prepared at home. In
father’s opinion, Mike was spoiled by his grandmother. Mike would ask for McDonald’s or a sandwich
rather than eating the food that his mother cooked. Father would tell him he had to eat the food
that was served in the house. Father
stated that he loved Mike like a son.
MGM
was also interviewed. She stated she
never saw father use physical discipline with the children. She indicated she had no concerns about
Jemely and Antonio being left in father’s care.
MGM was aware that Mike had recently revealed that father had hit him in
the past with a chancla (slipper). A
maternal uncle, Yovan N., was also interviewed.
Yovan stated he had no concerns about the children in father’s
care. He described father as “a nice
guy,†explaining “he’s strict and can come across with an attitude. But he’s a good dad and he’s always looking
after the children. He’s also worried
about my sister. It’s true he tried to
get her help.â€
DCFS
also included in its report statements from the MAT assessor who had
interviewed Mike. These statements
included the allegation that father had hit Mike on the buttocks with a belt
over his clothes; that father would hit him on the buttocks or the back of his
head with a shoe or sandal; that father would yell in his ear and pull both his
ears; that he was forced to clean the yard in hot weather; that he was made to
clean the basement by picking up cockroaches and spiders with his bare hands;
and that he was forced to stick his hand in the toilet to remove toilet paper
when the toilet was clogged. Mike also
reported that Dominic was hit with a belt; forced to pick up live cockroaches
and spiders with his bare hands; and would get locked in the basement for
several hours as a form of punishment.
The
social worker was unable to interview mother because she did not make herself
available for that purpose.
On
November 8, 2012, DCFS filed a first amended petition. The amended petition added counts as to
father under subdivisions (b) and (j), alleging that on prior occasions father
physically abused Mike by hitting him with a belt on the child’s buttocks and
inflicting pain. In addition, the
petition alleged that father forced Mike to pick up live insects, including
cockroaches, while cleaning the basement, forced him to eat food he did not
like and would threaten the child that he would have to eat vomit if he threw
up the unwanted food.
Interim review report
DCFS
filed an interim review report on December 27, 2012. DCFS had assessed father’s home on December
3, 2012. Father’s home was appropriate
and no safety concerns were noted.
However, father acknowledged that mother visited with Jemely and Antonio
in the home. Father was unable to
articulate clearly where mother stayed while visiting. The social worker reminded father that mother
was not to have unmonitored visits with the children and she was not allowed to
reside in the home with the children. DCFS
requested that the case remain open as to father due to the likelihood that
mother and father remained in a relationship.
DCFS
recommended family reunification services for the children with mother, and
family maintenance services for the family with father. DCFS also recommended that father participate
in individual counseling, a parenting program, and a Nar-Anon support group.
Adjudication
On
December 27, 2012, the juvenile court adjudicated the first amended
petition. Mother settled her portion of
the case and pled no contest. The court
received the DCFS reports into evidence.
The
matter proceeded to argument. Father’s
counsel asked that the allegations against father be dismissed. He argued that the allegations against father
did not support a finding of abuse, but that father was only trying to impose
discipline and structure on the children.
Father’s counsel also argued that none of the maternal relatives had any
concerns about the children being with father.
The
court indicated that it had read the reports, noting that that Mike’s comments
were consistent throughout. The court
sustained the counts against father, stating:
“Jemely
and Antonio’s father and the stepfather [of Mike]
. . . physically abused Mike by striking the child with a belt
on his buttocks and inflicting pain. And
the rest of that stays: to pick up the
bugs and telling him he’s going to eat tuna because that’s what’s going to be
served. He says grandma spoils him. That’s probably true. But to turn around and say you have to eat a
food at eight years old that you hate and then say if you throw it up you have
to eat it is not a good way to teach a child discipline. You know, make him grilled cheese.â€
The
court found a substantial risk of danger existed if the children were returned
to mother. However, the court stated “I
cannot find by clear and convincing evidence that return would create a
substantial risk of danger to leaving the two younger children with the
. . . father.†However,
the court ordered father to attend a parenting class, individual counseling,
and a NarcAnon program at least twice a week.
The court also ordered father into anger management. Father’s counsel protested, “Your Honor, may
I be heard?†To which the court
responded “No.â€
The
following exchange then took place:
“[Father’s
counsel]: Your Honor, then we’re
objecting to the court’s--
“The
court: Thank you.
“[Father’s
counsel]: Just for the record, these--
“The
court: I gotcha. Thank you.
“[Father’s
counsel]: Your Honor, may I state--
“The
court: No, you may not. No.
“[Father’s
counsel]: I need to make my objection.
“The
court: No, you are not.
“[Father’s
counsel]: I need to state a basis for my
objection, your Honor.
“The
court: What you need to do is take your
remedy. That’s what you need to do. You already made your objection. You have now objected. Now you may take your remedy.
“[Father’s
counsel]: In order for me to go get my
remedy, I need to state a couple more things.
“The
court: I found that this gentleman used
a belt on a child. That’s it. Anger management. He also says, and the entire family agrees,
that he’s very strict and has very strict rules for his kids. He needs anger management to sort that out.â€
Father
filed his notice of appeal from the jurisdictional and dispositional orders on
December 27, 2012.
I. Standard of review
We
review the juvenile court’s jurisdictional findings under the substantial
evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 829;
183, 193.) Under this standard, we
review the record to determine whether there is any reasonable, credible, and
solid evidence to support the juvenile court’s conclusions. We resolve all conflicts in the evidence, and
make all reasonable inferences from the evidence, in support of the court’s
orders. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We review the juvenile court’s dispositional
orders for abuse of discretion. (
438, 454; In re Christopher H. (1996)
50 Cal.App.4th 1001, 1006 (Christopher H.).)
II. Jurisdictional findings
Father
argues that the evidence does not support the trial court’s true findings as to
the two allegations sustained as to him.
The section 300, subdivision b-4 allegation read:
“b-4
(amended)
“On prior occasions, the children,
Jemely and [Antonio]’s father, and the child Mike[’s] stepfather, . . .
physically abused the child, Mike, by striking the child with a belt on the
child’s buttocks and inflicting pain.
[Father] . . . has forced the child to pick up live insects including
cock roaches while cleaning the basement of the family home. [Father] also forced the child to eat foods
he did not like and would threaten the child that he would have to eat [his]
vomit if he regurgitated the unwanted food.
Such physical and emotional abuse was excessive and caused the child
unreasonable pain and suffering. The
physical abuse of the child by the father endangers the child’s physical
health, safety and well-being, creates a detrimental home environment and
places the child and the child’s siblings, Jemely and Antonio, at risk of
physical harm, damage, physical abuse, and failure to protect.â€
The
section 300, subdivision j-1 allegation for “abuse of sibling†contains
identical allegations.
Judiciability
Father acknowledges that some
courts, including this court, have refused to address specific jurisdictional
findings based on mootness and non-justiciability grounds in cases such as this
where some, but not all, of the jurisdictional findings are challenged. (In re
Ashley B. (2011) 202 Cal.App.4th 968, 979 [“As long as there is one
unassailable jurisdictional finding, it is immaterial that another might be
inappropriateâ€]; In re I.A. (2011)
201 Cal.App.4th 1484, 1491 [“it is necessary only for the court to find that
one parent’s conduct has created circumstances triggering section 300 for the
court to assert jurisdiction over the childâ€].)
“[A]n appellate court may decline to address the evidentiary support for
any remaining jurisdictional findings once a single finding has been found to
be supported by the evidence.
[Citations.]†(
Father
argues that in this case, there are valid reasons for addressing the merits of
his arguments regarding counts b-4 and j-1.
In support of his position, father cites In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.). In
jurisdictional finding against him involving his use of medical marijuana. DCFS argued that the unchallenged findings as
to mother would continue to support jurisdiction, therefore father’s appeal was
nonjusticiable. (Id. at p. 762.) The
merits of father’s appeal, stating:
“Here, the outcome of this appeal is the
difference between father’s being an ‘offending’ parent versus a “non-offending’
parent. Such a distinction may have
far-reaching implications with respect to future dependency proceedings in this
case and father’s parental rights. Thus,
although dependency jurisdiction over Drake will remain in place because the
findings based on mother’s conduct are unchallenged, we will review father’s
appeal on the merits.â€
(Drake M., supra, 211 Cal.App.4th at p. 763.)
Father
argues that the jurisdictional findings as to father could have an effect on
current or future dependency proceedings.
In addition, the outcome of the appeal could mean the difference between
father being an “offending†versus a “non-offending†parent. In other words, father argues, the question
of whether counts b-4 and j-1 were correctly sustained matters.
Here,
as in Drake M., the jurisdictional
findings serve as the basis for a challenged dispositional order and may be
prejudicial in the current or future dependency proceedings. We agree with father that the outcome of the
appeal could mean the difference between father being an “offending†rather
than a “non-offending†parent. (See
762-763.) We therefore address father’s
contentions on the merits.
name="_ftnref6" title="">[6]
B. Substantial evidence supported the true
findings for counts b-4 and j-1 Father
argues that no reasonable or credible
evidence supports the finding that father physically abused Mike. Father is wrong.
As
the juvenile court pointed out, Mike’s reports of physical abuse were
consistent. In addition, father admitted
to striking Mike, as well as Dominic, with a belt. This constitutes substantial evidence of
physical abuse.
Father
does not deny that he disciplined Mike by striking him with a belt. However, father argues that this form of
discipline did not harm Mike, nor put him at risk of serious physical harm. Father cites In re Jasmine G. (2000) 82 Cal.App.4th 282, 288-292 for the
proposition that not all forms of corporal punishment can trigger dependency
jurisdiction. Further, father argues, it
is not the juvenile court’s role to enforce any philosophy of discipline or
child rearing. Father argues that
age-appropriate spanking to the buttocks, where there is no evidence of
physical injury, does not constitute serious physical harm. (See In
re Joel H. (1993) 19 Cal.App.4th 1185, 1201-1202.) In sum, father asks this court to hold that
striking a child on the buttocks with a belt does not create a risk of serious
physical harm to the child, as defined in section 300, subdivision (a).
We
disagree with father’s position that the striking of a child with a belt, even
without actual physical harm, does not put the child at risk of serious
physical harm. It is within the juvenile
court’s authority to find that such an act does put a child at risk of serious
physical harm. In addition, the juvenile
court’s decision must be analyzed in the context of the proceedings as a whole. The juvenile court noted that it read all of
Mike’s comments, all of the reports, and all of father’s comments. Therefore we must assume that the juvenile
court also considered Mike’s statements that father yelled in Mike’s ears and
pulled his ears; forced him to eat food that he did not like; threatened him
with the physically distressing idea of eating his own vomit; and forced him to
touch live insects. The juvenile court
apparently believed these allegations.
We do not reevaluate credibility determinations. (In re
Ryan N. (2001) 92 Cal.App.4th 1359, 1373 [juvenile court as trier of fact
is sole judge of credibility of witnesses].)
Taken as a whole, and especially in light of father’s admission that he
hit his children with a belt, this evidence was sufficient to support the
juvenile court’s finding that father’s behavior put the children at risk of
serious physical harm.
Father
next argues that even if the evidence was sufficient to show a risk of serious
physical harm to Mike, it fell far short of the mark with respect to Jemely and
Antonio. At the time of the
jurisdictional hearing, father argues, Jemely was only three years old, and
Antonio was less than three months old.
Father argues that there was no evidence suggesting that father would
employ any form of corporal punishment against these small children. Father points out that he did not begin to
use a belt with Mike until Mike was six years old.
The
evidence that father used corporal punishment against Mike was sufficient to
support a finding of risk as to siblings Jemely and Antonio. In deciding whether jurisdiction of a child
is warranted under section 300, subdivision (j), the juvenile court may
consider many factors, including “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 or
guardian, and any other factors the court considers probative in determining
whether there is a substantial risk to the minor.’†(In re
Joshua J. (1995) 39 Cal.App.4th 984, 994.)
The juvenile court must “‘consider the totality of the circumstances of
the child and his or her sibling in determining whether the child is at
substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j).’†(In re
I.J. (2013) 56 Cal.4th 766, 774.)
Father
is correct that Jemely and Antonio were younger than Mike. However, this fact alone does not insulate
them from a risk of substantial harm.
The type of abuse described by Mike can be inflicted on younger
children. And although Mike recalled
that his father did not strike him until he was six years old, the possibility
that father might impose such punishment on his younger children remains. Further, even if we could be assured that
father would not use a belt to strike Jemely for another two or three years,
jurisdiction under section 300, subdivision (j) is still supportable. We need not wait for a child to be harmed in
order to intervene. (
378, 383, fn. 3.) “‘The purpose of
dependency proceedings is to prevent risk, not ignore it.’ [Citation.]â€
(Jonathan L. v. Superior Court (2008)
165 Cal.App.4th 1074, 1104.) The
evidence supported the juvenile court’s finding that father’s physical abuse of
Mike put Jemely and Antonio at risk of substantial physical harm.
III. Dispositional orders
Father concedes
that the juvenile court can make “all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the child.†(§ 362, subd. (a); In re Jasmin C., supra, 106 Cal.App.4th at p. 180.) The problem that the juvenile court seeks to
address need not be described in the sustained section 300 petition. (See Christopher
H., supra, 50 Cal.App.4th at pp. 1006-1008.) In fact, there need not be a jurisdictional
finding as to the particular parent upon whom the court imposes a dispositional
order. (See In re I.A., supra, 201 Cal.App.4th at p. 1492 [“A jurisdictional
finding involving the conduct of a particular parent is not necessary for the
court to enter orders binding on that parent, once dependency jurisdiction has
been establishedâ€].)
Despite
his acknowledgement of the juvenile court’s broad authority to impose orders on
parents whose children are subject to the jurisdiction of the juvenile court,
father argues that the trial court’s orders that father enter anger management
and parenting classes were erroneous.
record suggesting that father had an anger problem. He further argues that his parenting ability
was not a factor that led to the jurisdictional order.
We
find that the trial court did not abuse its discretion. There was evidence in the record to support
both orders. At disposition, the
juvenile court is not limited to the content of the sustained petition when it
considers what dispositional orders would be in the best interests of the
children. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183;
pp. 1006-1008.) Instead, the court may
consider the evidence as a whole.
Father
admitted to hitting two of his children on the buttocks with a belt -- his
stepson, Mike, and his teenage son, Dominic.
Eight-year-old Mike reported that father hit him with a belt on more
than one occasion, and that father hits him hard when father is in a bad
mood. Mike also reported being hit with
a sandal or shoe on the back of his head and having his ears pulled. This evidence supports imposition of an order
requiring anger management classes.
There
was also evidence to support an order that father participate in parenting
classes. Mike reported inappropriate
parental behavior such as requiring him to pick up live insects -- an act which
gave the child nightmares; and requiring him to eat food
he did not like under threat of having to undertake an even more physically
repelling activity -- eating his own vomit.
Mike also alleged that father required him to put his hand in the toilet
when it was clogged. Father admitted to
being “strict†and having a “strong attitude†with the children. The allegations of physical abuse, along with
these allegations of intimidation, are sufficient to support the court’s order
that father attend parenting classes.
The orders are affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
___________________________,
J.
CHAVEZ
We concur:
___________________________,
Acting P. J.
ASHMANN-GERST
___________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1] All further statutory references are to
the Welfare & Institutions Code.
name="_ftn2" title="">[2] Mother is not a party to this appeal.
