Filed 10/11/18 In re J.S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Brian M. Arax, Judge.

Cristina Sanchez, under appointment by the Court of Appeal, for Destiny A., Defendant and Appellant.

Richard L. Knight, under appointment by the Court of Appeal, for William S., Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

William S. and Destiny A., parents of now three-year-old J.S., appealed from the juvenile court’s January 11, 2018, dispositional order removing J.S. from their custody. After reviewing the juvenile court record, court-appointed counsel informed this court they could find no arguable issues to raise on appellants’ behalf. This court granted appellants leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)

Appellants filed letters claiming Destiny’s family orchestrated the circumstances that resulted in J.S.’s removal. They claim that they pose no danger to J.S. and her removal was unwarranted. William states they are moving to Oklahoma and want to take J.S. with them. They attached form documents used in civil pleadings to their letters[1] as well as a “Request to Change Court Order” (JV-180) used in juvenile dependency proceedings to modify a prior court order. (Welf. & Inst. Code, § 388.)[2]

We conclude appellants failed to set forth a good cause showing that any arguable issue of reversible error arose from the dispositional hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.

PROCEDURAL AND FACTUAL SUMMARY

Two-year-old J.S. was taken into protective custody in October 2017 by the Fresno County Department of Social Services (department) after Destiny got into a physical altercation with her uncle, Fidel E., in J.S.’s presence and bit his arm, breaking the skin. Destiny was arrested.

Fidel told the police Destiny came to the residence he shared with his parents and tried to “dump [J.S.] on them again,” but they refused to take responsibility for her. The family tried to hold an intervention because Destiny was not properly caring for J.S. They were unwilling to watch J.S. because they were trying to teach Destiny about personal responsibility as a parent. Destiny became angry and began to scream and yell. Fidel told Destiny to leave the house because he was concerned her behavior would stress his parents, but she refused. She became furious when they threatened to call the police and told her child protective services (CPS) would also respond. She threatened to kill them and blow up the house if they reported her to CPS. She also said she would do the same to any social worker who tried to take J.S. from her. Fidel said he worked in a hospital and Destiny’s behavior was similar to the violent and psychotic people he dealt with there. He believed she was a danger and attempted to escort her out of the house by pushing her toward the door. She resisted him and was acting like a “crazed animal” so he tried to restrain her by grabbing her from behind and wrapping his arms around her in a bear hug. He hoped to restrain her until the police arrived and could evaluate or arrest her. Destiny fought and he ended up on top of her on the ground. He put his left arm around the front of her neck, making sure not to put any pressure on her throat. During the struggle, Destiny bit his left forearm and scratched his right forearm, causing him to release her. He said it appeared she could breathe because she was screaming obscenities the entire time. J.S. was standing just a few feet away from them, crying. Destiny took her and left.

Police found Destiny and J.S. at the family home. During a search of William and Destiny’s bedroom, police found marijuana and paraphernalia in locations accessible to J.S. The social worker left with J.S. before the police notified William they were placing a protective hold on her because William had a history of violent behavior and had threatened violence if she was removed. The department placed J.S. with Lena, the maternal grandmother.

William acknowledged he and Destiny left J.S. with relatives too often and needed to change. He denied engaging in physical domestic violence with Destiny but admitted arguing with her, which was why they took J.S. to the grandparents’ home. They did not want J.S. to witness their arguments. He said Destiny was not usually aggressive or violent but had become more short-tempered lately. She took J.S. to stay with her grandparents to keep from “ ‘taking it to the next level.’ ” He did not know if Destiny’s behavior was caused by drug use but believed it was possible. Lena said Destiny was diagnosed with bipolar disorder as a minor but was never medicated for the condition.

The day after Destiny’s arrest, a social worker met with her at the county jail where she was being held on felony charges, including battery causing serious bodily injury. Destiny said she was the victim, not the aggressor, in the altercation with Fidel. She explained she went to Lena’s house to ask her to babysit while she renewed her driver’s license. When the family refused, they hurt her feelings and an argument ensued. She bit Fidel once in the arm in self-defense after he placed her in a chokehold and she could not breathe. She admitted using marijuana while caring for J.S.

The department filed a dependency petition under section 300, subdivision (b)(1), alleging the parents’ domestic violence and marijuana use placed J.S. at a substantial risk of suffering serious physical harm. The juvenile court ordered J.S. detained pursuant to the petition and ordered the department to offer the parents services pending its disposition of the case. The court set the jurisdictional hearing for November 2, 2017.

On November 2, 2017, the parents appeared with counsel at the initial jurisdictional hearing. The court continued the hearing so the parents could speak to their attorneys. Neither parent appeared at the continued hearing on November 9 and the court found their absence was unexcused. The court set the matter for a contested jurisdictional/dispositional hearing for December 14, 2017.

On December 14, 2017, the juvenile court conducted the jurisdictional hearing and set the contested dispositional hearing for January 11, 2018. Neither parent appeared and the court deemed their absence unexcused. The court sustained the dependency petition and adjudged J.S. a dependent child as alleged.

The parents appeared with counsel at the contested dispositional hearing on January 11, 2018. The parents each gave brief oral statements without objection. William stated it was unfair the court conducted the jurisdictional hearing in their absence because they had no transportation.

The juvenile court found there was a substantial risk to J.S.’s physical health and emotional well-being and there were no alternative means short of removal to protect her and removed her from parental custody. The court ordered parenting, substance abuse, domestic violence and mental health services for the parents as well as weekly supervised visitation and set the six-month review hearing for July 2018.

DISCUSSION

Appellants contend Destiny’s grandparents tried to force her to give them custody of J.S. so they would have enough money to pay their house payment. When she refused, they attacked her. She asserts that Fidel almost killed her and she acted out of self-defense. She asks, “Why is my child gone?”

In order to remove a child from parental custody, the juvenile court must find by a preponderance of the evidence that the child is described by any of the subdivisions of section 300 and by clear and convincing evidence the child would be substantially endangered if returned home and there are no reasonable means to protect the child other than removal. (§ 361, subd. (c)(1).) To warrant further briefing on this appeal, appellants would have to show good cause that an arguable issue exists on this record with respect to the juvenile court’s jurisdictional finding and dispositional orders. We conclude they failed to make such a showing.

Here, the juvenile court found J.S. was described under section 300, subdivision (b)(1) in part because William and Destiny’s domestic violence rendered them unable to provide her regular care and placed her at a substantial risk of suffering serious physical harm. The evidence supports the court’s finding. William and Destiny regularly argued and Destiny was not able to control her anger, requiring them to take J.S. to the grandparents’ house for her safety. Further, Destiny’s altercation with Fidel in J.S.’s presence evidenced Destiny’s lack of control, the violence of which she was capable and the disregard she had for the harm it caused J.S.

The same evidence supports the juvenile court’s order removing J.S. from her parents’ custody. Both parents have a history of violent behavior and Destiny’s was becoming more volatile and out-of-control. It was just a matter of time before J.S. would suffer serious physical harm while in their care. Further, they were an intact couple and Destiny was unwilling to acknowledge her substance abuse and mental health problems. She also refused to participate in or consent to services to assist J.S., who the department suspected was developmentally delayed. Consequently, removal from parental custody was the only means of protecting J.S.

As to the form documents appellants attached to their letters, this court cannot review them. Rather, appellants must file them in the appropriate superior court or juvenile court in the case of the JV-180 request.

We conclude appellants failed to set forth a good cause showing that an arguable issue of reversible error exists and dismiss the appeal.

DISPOSITION

This appeal is dismissed.