In re M.G.
Filed 10/1/13 In re M.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.G., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff
and Respondent,
v.
R.G.,
Defendant
and Appellant.
E057625
(Super.Ct.No.
INJ1200493)
OPINION
APPEAL
from the Superior Court
of
County. Lawrence
P. Best, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.)
Affirmed.
Pamela
Rae Tripp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County Counsel,
and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Defendant
and appellant R.G. (Father) appeals from the juvenile court’s jurisdictional
and dispositional findings as to his six-year-old son M.G. He contends that (1) there was
insufficient evidence to support the court’s order sustaining the petition as
to him under Welfare and Institutions Code section 300, subdivision (b); and
(2) the court erred in removing M.G. from his custody. We reject these contentions and affirm the
judgment.
I
FACTUAL AND
PROCEDURAL BACKGROUND
The
family came to the attention of Riverside
County Department of Public Social Services (DPSS) in September 2012 after
an immediate response referral was received alleging physical abuse of M.G. and
his younger half brother H.R. by H.L. (Mother) and her boyfriend C.R.
lie on his stomach while they hit him with a belt, leaving bruises. M.G. also stated that his half brother had
also been hit with a belt. M.G.
described an incident where he was forced to lay face-down on a bed with his
wrists and ankles tied to the four corners of the bed so C.R. could hit him
with a belt. M.G. suffered a rope burn
as a result of the incident. The
children were taken into protective custody and placed in a suitable foster
home.
Mother
and C.R. admitted that they had disciplined M.G. by hitting him with a belt,
and that at times they had assisted each other by holding the child down. They also admitted to past incidents of
corporal punishment on the children that had left marks and bruises on them,
including an incident where C.R. had repeatedly hit H.R., who was four months
old at the time, because he would not stop crying. Mother also explained that they had made
efforts to conceal the marks from relatives.
C.R. denied tying M.G. to a bed and explained that it had been
fabricated by the maternal grandmother because she did not like him. Mother also denied the tying incident,
claiming M.G.’s account of the incident was “‘far-fetched.’†Mother and C.R. also admitted to incidents of
domestic violence.
M.G.
also reported that he had been sexually abused by his cousin during the prior
summer while at his paternal grandmother’s residence. Father reported that there were normally many
relatives in the paternal grandmother’s home, but denied knowledge of any harm
to M.G. while in his care.
Father
explained that he had obtained joint custody of M.G., and that he was supposed
to get M.G. for summers, weekends, and holidays. However, he had lost contact with Mother and
M.G. when they moved to another residence.
Father also explained that he had concerns about M.G.’s safety and was
told of an incident where M.G. had bruises on his back caused by C.R. and that
Mother had not allowed M.G. visits with the paternal relatives in an effort to
hide the abuse. Father stated that he
had not seen the bruises but had spoken to Mother about it. Mother confirmed that M.G. had bruises on him
caused by C.R. and stated that she was leaving C.R. to live in another
state. Father later learned that Mother
had reconciled with C.R. When questioned
why he did not seek a court order to change his visitations after learning of
the abuse and Mother reconciling with C.R., Father explained that he had heard
“rumors†that Mother was back together with C.R., but he did not have
confirmation. This was about the same
time when he was again incarcerated and, therefore, unavailable to protect
M.G.
While
incarcerated, Father stated that he had attempted to write letters to M.G., but
he could not locate him. Father was
released from jail in April 2012. He had
not visited M.G. in approximately 10 months, reportedly because he was not
allowed to leave his San Diego
community. He explained that he was
released early from jail on the condition that he would reside in a “men’s work
furlough program,†and he would only leave to go to work. Father acknowledged that M.G. had visited the
paternal grandmother and explained that she could not bring M.G. to him “as his
schedule was too demanding for a visit.â€
Father
also reported that he had a history of gang affiliation and abusing marijuana
and methamphetamine. He denied any
knowledge of why child protective services (CPS) was involved with him as a
minor. According to the CPS database,
Father was listed as the substantiated perpetrator of sexual abuse when he was
about 15 years old against his 10- and 12-year-old sisters. The reports of sexual abuse occurred over
“‘20 times’†and included vaginal, oral, and anal intercourse. Father was arrested and his siblings were
removed by CPS. Father admitted going to
juvenile hall, but initially denied sexually abusing his sisters. The paternal grandmother explained that
Father had remained out of the home for about one year and returned to live
with his siblings; Father however claimed that he had resided with an aunt and
uncle until he turned 18 years old.
Father also had a lengthy criminal history as an adult, including
charges or convictions for attempted murder, assault with a deadly weapon, drug
possession, transporting illegal immigrants, and driving under the influence.
Father
was residing in a one-bedroom apartment in San Diego,
was on both Imperial County
and Federal probation until 2014, and was employed full time as an assistant
cook and worked long hours. He was
married, had a two-year-old child with his current wife, and desired to have
M.G. reside with him, with his wife providing daycare while he worked.
had children removed from her care and failed to reunify with them. She also explained that she was criminally
charged due to bite marks found on her children and was on formal probation
until the end of 2013. She denied
inflicting any harm or injury to her children, but admitted biting her children
because of past abusive relationships.
Father’s wife also admitted to having a lengthy criminal history,
including charges or convictions for child abuse, assault with a deadly weapon,
and multiple thefts. Mother did not want
M.G. placed with Father, noting that when she returned to pick up M.G. from an
extended visit with Father, she could not locate Father. She believed Father was incarcerated and had
left the child with relatives.
On
September 18, 2012, a petition was filed on behalf of the children pursuant to
Welfare and Institutions Code
name="_ftnref3" title="">[3] section 300, subdivisions (a) (serious
physical harm), (b) (failure to protect), and (d) (sexual abuse). In regards to Father, the petition alleged
that Father had a criminal history, including a conviction for assault with a
deadly weapon in 2011, for which he was on formal probation, and a 2007 federal
conviction for transporting illegal immigrants; that Father had knowledge of
M.G. being physically abused and failed to intervene to protect M.G.; and that
Father was not a member of the household and had failed to provide M.G. with
adequate food, clothing, shelter, medical treatment, and/or protection.
At
the September 19, 2012
detention hearing, Father requested a contested
hearing and the matter was continued to September 24. Father, however, failed to appear at the
September 24 contested detention hearing and the children were formally removed
from their parents and placed in a foster home.
The
social worker recommended that the allegations in the petition be found true,
that the children be declared dependents of the court and removed from parental
custody, and that the parents be offered reunification services.
The
contested jurisdictional/dispositional hearing was held on November 16, 2012. Mother and Father were present. Mother waived her rights and submitted to the
allegations in the petition based on the social workers’ reports. Following testimony from the social workers
and argument from counsel, the juvenile court found the allegations in the
petition true and declared the children dependents of the court. The court also removed the children from
parental custody. In regard to Father,
the court found clear and convincing evidence that placement of M.G. in
Father’s care would be detrimental to the safety and physical or emotional
well-being of the child. The parents
were offered reunification services and ordered to participate in their
court-approved case plans. This appeal
followed.
II
DISCUSSION
Father
challenges the jurisdictional findings and dispositional orders, arguing that
there is insufficient evidence to support the juvenile court’s jurisdiction
under subdivision (b) of section 300 and the removal order as to him. As explained post, we conclude that his challenges fail because there is
overwhelming evidence of the allegations against Mother to establish the
court’s jurisdiction, and the record otherwise discloses adequate support for
the dispositional orders regarding Father.
A. Jurisdiction
The
petitioner in a dependency proceeding must prove by a preponderance of evidence
that the child who is the subject of the petition comes under the juvenile
court’s jurisdiction. (
322, 329, superseded by statute on other grounds as stated in
Cal.App.4th 73, 82.) We review
jurisdictional findings under the substantial
evidence standard. (
574; In re A.S. (2011) 202
Cal.App.4th 237, 244.) Under this
standard, we determine whether there is any substantial evidence, contradicted or
uncontradicted, which supports the conclusion of the trier of fact. (In re
Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
All evidentiary conflicts are resolved in favor of the respondent, and
where more than one inference can reasonably be deduced from the facts, we
cannot substitute our own deductions for those of the trier of fact. (In re
John V. (1992) 5 Cal.App.4th 1201, 1212.)
We
begin with Father’s contention that the juvenile court lacked jurisdiction over
M.G. because there was insufficient evidence to support the jurisdictional
findings as to him.
Generally,
to acquire jurisdiction under subdivision (b) of section 300, the juvenile
court was obliged to find that the child “has suffered, or there is a
substantial risk that [he] will suffer, serious physical harm or illness, as a
result†of specified forms of parental neglect, including substance abuse,
physical abuse, and failure to protect the child. Here, the juvenile court made findings
against Father, Mother and C.R., namely, that the children were placed at a
substantial risk of harm by Mother and C.R.’s physical abuse of M.G. and his
half brother, Mother and C.R.’s substance abuse and domestic violence, and
Father’s failure to protect M.G. from C.R. and Mother. Father argues that there was insufficient
evidence to support the findings against him.
For the reasons explained post,
Father’s attack on the juvenile court’s jurisdiction fails in view of
substantial evidence of the allegations against Mother and her boyfriend
C.R. Indeed, Mother and C.R. admitted
the allegations against them.
To
secure jurisdiction over the child under section 300, the juvenile court was
not obliged to make jurisdictional findings against both Father and
Mother. Because the focus of the
statutory scheme governing dependency is the protection of children, a “minor
is a dependent if the actions of either
parent bring [him] within one of the statutory definitions of a
dependent.†(In re Alysha S. (1996) 51 Cal.App.4th 393, 397, italics
added.) The agency “is not required to
prove two petitions, one against the mother and one against the father, in
order for the court to properly sustain a petition [pursuant to § 300] or
adjudicate a dependency.†(
593, 599.) “A petition is brought on
behalf of the child, not to punish the parents.
[Citation.] The interests of both
parent and child are protected by the two-step process of a dependency
proceeding, with its separate adjudication and disposition hearings. Thus, when [the department] makes a prima
facie case under section 300 by proving the jurisdictional facts at the
adjudication hearing, it is not improper for the court to sustain the petition;
not until the disposition hearing does the court determine whether the minor
should be adjudged a dependent.†(
Here,
Father does not challenge the jurisdictional findings based on Mother’s
conduct, and there is more than substantial evidence to support jurisdiction of
M.G. based on Mother’s conduct alone.
Accordingly, because father does not challenge the sufficiency of the
evidence to support the jurisdictional allegations as to Mother, the juvenile
court properly exercised jurisdiction over the child even if Father’s conduct
was not an independent basis for jurisdiction.
(See, e.g., In re Maria R. (2010)
185 Cal.App.4th 48, 60, disapproved on another ground in In re I.J. (2013) 56 Cal.4th 766, 780-781; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554;
1140, 1143.)
Father
acknowledges that jurisdiction over a child is established if the conduct of
under the criteria of section 300. He
essentially argues we should nonetheless reach the issue because the finding
affected the disposition order with respect to Father.
A
similar argument was rejected by the court in In re I.A. (2011) 201 Cal.App.4th 1484. In that case, the jurisdictional allegations
included mother’s drug abuse, domestic violence between the parents, and the
parents’ criminal histories. (
jurisdictional findings based on his conduct, but not the findings based on the
mother’s conduct. The court dismissed the
appeal as moot because the father’s “contentions, even if accepted, would not
justify a reversal of the court’s†jurisdiction. (Id.
at pp. 1487-1488.) The court
explained: “[I]t 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 child. [Citations.]
Once the child is found to be endangered in the manner described by one
of the subdivisions of section 300—e.g., a risk of serious physical harm
(subds. (a) & (b)), serious emotional damage (subd. (c)), sexual or other
abuse (subds. (d) & (e)), or abandonment (subd. (g)), among others—the
child comes within the court’s jurisdiction, even if the child was not in the
physical custody of one or both parents at the time the jurisdictional events
occurred. [Citation.] For jurisdictional purposes, it is irrelevant
which parent created those circumstances.â€
(Id. at pp. 1491-1492.)
As DPSS
established jurisdiction based on C.R.’s and Mother’s physical abuse, substance
abuse, and neglect of M.G. and his half brother, the juvenile court properly
found that M.G. came within the jurisdiction of section 300, subdivision
(b). (In re I.A., supra, 201
Cal.App.4th at pp. 1491-1492.) We
therefore find no threatened prejudice to Father from this jurisdictional
finding, and reject Father’s challenge to the juvenile court’s
jurisdiction. (Id. at p. 1495.)
B. Dispositional
Orders
Father
also contends the order removing M.G. from his custody was not supported by
noncustodial, nonoffending parent who requested custody of M.G., the court
should have placed M.G. with him because he was “presumptively entitled to
custody.†(In re Catherine H. (2002) 102 Cal.App.4th 1284, 1292.)
After ordering
jurisdiction over M.G., the juvenile court made disposition orders, which
included removal of M.G. and his half brother from their parents’ custody and
continued placement together in a foster home.
The court found that section 361.2 applied to Father, and found that
placement of M.G. with Father would be detrimental to the safety, protection,
and physical and emotional well-being of the child.
The juvenile court
“has broad discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order†accordingly. (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Among the permissible dispositional choices
is removing the child from the parent’s physical custody. (§ 361, subd. (c).) Generally, when a child has been removed from
the physical custody of his or her parents, the statutory scheme governing
dependency proceedings obliges the juvenile court to place the child “in a safe
home or setting, free from abuse or neglect.†(In re Adrianna P. (2008) 166 Cal.App.4th 44, 55.) The child’s placement is subject to several
provisions of the statutory scheme, including section 361.2. (In re
Adrianna P., at p. 55.)
Section 361.2
governs placement in a specific set of circumstances, namely, when the child
has been removed from the home of a “custodial parentâ€â€”that is, a parent who
had physical custody of the child—but has a “noncustodial parent,†that is, “a
parent with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section
300.†(In re Adrianna P., supra,
166 Cal.App.4th at p. 55 & fns. 5, 6, italics omitted; see also §
361.2, subd. (a).) Under subdivision (a)
of section 361.2, when the noncustodial parent requests custody, the juvenile
court must place the child with the noncustodial parent unless the placement
would be detrimental to the child’s safety, protection, or physical or
emotional well-being. This finding also
must be made by clear and convincing evidence.
(In re A.A. (2012) 203
Cal.App.4th 597, 605; In re Isayah C.
(2004) 118 Cal.App.4th 684, 694.)
The legislative
preference is for placement with the nonoffending, noncustodial parent. (In re
John M. (2006) 141 Cal.App.4th 1564, 1569; In re Austin P. (2004) 118 Cal.App.4th 1124, 1132.) Section 361.2 gives “temporary physical
custody†to the nonoffending noncustodial parent “if doing so will not be
detrimental to the child, but [] the court may not terminate jurisdiction until
it analyzes whether ongoing supervision of the child is necessary.†(In re
Austin P., at p. 1129.)
“We
review the record in the light most favorable to the court’s order to determine
whether there is substantial evidence from which a reasonable trier of fact
could find clear and convincing evidence that [] the child[] would suffer such
detriment [under section 361.2, subdivision (a)]. [Citations.]â€
(In re Luke M. (2003) 107
Cal.App.4th 1412, 1426; see also In re
Isayah C., supra, 118 Cal.App.4th
at p. 694.) 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.)
The focus is on the best interest of the child, not on the conduct of
the parent: “although a jurisdictional
finding is predicated on parental conduct, a detriment finding for purposes of
deciding placement with a noncustodial, nonoffending parent need not be.†(In re
Luke M. at p. 1425.)
Here, there was
substantial evidence that placing M.G. with Father would be detrimental to
M.G.’s safety, protection, or physical or emotional well-being. (§ 361.2, subd. (a).) M.G. had never lived with Father and Father
had never acted in a capacity of a primary caregiver. Father essentially had no relationship with
M.G. He had not maintained continual
contact with M.G., and indeed lost all contact with M.G. once he was incarcerated
in 2011. Additionally, once he was
released from incarceration in April 2012, Father took no efforts to find or
protect M.G., even though he knew Mother’s boyfriend C.R. was abusing his child
and had heard rumors that Mother had reconciled with C.R. He had not visited M.G. in approximately 10
months after his release from incarceration, reportedly because he was not
allowed to leave his San Diego community.
He however acknowledged that M.G. had visited the paternal grandmother
and explained that she could not bring M.G. to him “as his schedule was too
demanding for a visit.â€
Moreover, M.G. was
not familiar with Father’s home or current family. Father had planned on having his wife be
M.G.’s primary caretaker while he worked long hours as an assistant cook. However, Father’s wife reported that she had
physically abused two of her children and had failed to reunify with them. Mother also expressed concern about placing
M.G. with Father under such circumstances, noting that on a prior occasion when
she had returned to pick up M.G. from an extended visit with Father, she could
not locate Father. Furthermore, M.G. and
his half brother had always been together.
Under the circumstances of this case, there was sufficient evidence to
support a finding of detriment.
We
conclude there was substantial evidence from which a reasonable trier of fact
could find clear and convincing evidence that M.G. would suffer detriment at
the disposition stage if he was placed with Father without having had any
opportunity to establish a relationship with Father and his current family. (In re
Luke M., supra, 107 Cal.App.4th
at p. 1426.)
III
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RICHLI
J.
name="_ftn1" title=""> [1] Neither Mother nor H.R. are parties to this
appeal.
name="_ftn2" title=""> [2] Father also had an eight-year-old son who
resided with the child’s Mother.
