In re Jason S.
Filed 7/8/13 In re Jason S. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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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 JASON S., a Person Coming
Under the Juvenile Court Law.
B242780
(Los Angeles
County
Super. Ct.
No. CK71927)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JASON S.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court
of
County.
Marguerite D. Downing, Judge. Affirmed.
Janette
Freeman Cochran, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
Jason S. (Father) appeals the disposition in a
named Jason. (Welf. & Inst. Code,
395.)
title="">[1] Father is incarcerated while awaiting trial
on a murder charge. Father’s challenge
to dependency jurisdiction fails. The
evidence amply supports findings that Father is a violent person who caused the
death of a minor and poses a substantial risk to Jason’s health and safety.
FACTS
Father was
convicted of inflicting corporal injury on a spouse in 2007. Jason was born in December 2007, and detained
by the Department of Children and Family
Services (DCFS) three months later.
The juvenile court sustained allegations that Jason’s mother Irma J.
(Mother) abuses amphetamines, used drugs and alcohol during her pregnancy, and
the parents engaged in domestic violence.
Father was ordered to complete a 52-week domestic violence program. Both parents exhibited signs of mental
instability. Jason was placed with his
paternal grandparents (PGPs).
In
September 2008, Father was given custody of Jason, on condition that they both
reside with the PGPs. Jason received
excellent care from the PGPs, Father complied with the case plan, and
January 2009. Mother stopped visiting
Jason in April 2008. Her whereabouts
were unknown.
In January
2012, Father was arrested on suspicion of murder. The arrest occurred in the presence of Jason
and his half-brother D., who were taken into protective custody. According to police, Father learned that his
girlfriend Elizabeth I. (Elizabeth)
was romantically involved with 17-year-old F.R., a popular high school
athlete. Father drove to F.’s home and Elizabeth
lured her lover outside. Father argued
with F. about the affair, pulled out a gun and shot F. twice. D. was sitting in the car and “observed the
whole incident.†Father and Elizabeth
fled with D. F. died of his wounds.
At the time
of Father’s arrest, the PGPs were Jason’s primary caregivers. Though the PGPs previously asked Father to
give them full custody, they did not follow through due to the legal
costs. Jason was detained by DCFS, since
neither of his parents were available to care for him, and was placed with the
PGPs.
A petition
was filed on Jason’s behalf. As amended,
it alleges that Father placed Jason’s half-brother D. in a detrimental and
endangering situation by shooting and killing a minor child in his presence. Father’s conduct endangers Jason’s health and
safety and places him at risk of harm.
detaining Jason, who remained in the home of the PGPs. Father and Mother were authorized to have
monitored visitation, though Father was incarcerated. Mother was ordered to have random drug
tests. Father denied the allegations in
the petition.
A
jurisdiction report was received from DCFS on February 10, 2012.
Jason continued to reside with the PGPs, where he has spent his whole
life and receives excellent care. He is
bonded to the PGPs, who want to provide him with a permanent home. When interviewed in jail, Father declined to
discuss the shooting, saying only that he did not put Jason in a dangerous
situation. Father opposed reunification
services for Mother because she has no interest in her son and uses drugs. He would like the PGPs to become legal
guardians or adopt Jason.
Mother indicated that she last used
drugs, specifically marijuana, one month earlier; however, she tested positive
for methamphetamines and alcohol on
January 24, 2012. She is on probation in two cases for petty
theft and having an open alcohol container in a car. She denied domestic violence with
Father. During her interview, Mother’s
speech was slurred and she was difficult to understand. She did not visit Jason because she failed to
complete court-ordered programs in the first DCFS proceeding. She said, “I didn’t think I was a fit parent,
now I’m stable.†She began using drugs
when she was 16 or 17. She was going to
start parenting classes. Mother wished
to have Jason placed with her, although she has never had unmonitored
visitation with Jason and has not seen the boy since he was three or four
months old. She acknowledged that Jason
does not consider her to be his mother.
Elizabeth
was interviewed and stated that she saw Father shoot F.R. “in front of my son
and me,†referring to D. She denied
knowing Father’s intentions and indicated that Father forced her to call F. out
of his house, so he could shoot the boy.
She described Father as “very jealous and violentâ€; he threatened to
take D. away and give him up for adoption.
She “has always been afraid†of Father, which is why she did not call
police after the shooting. She feels
safe in jail. D. was exposed to domestic
violence in the family home.
The
paternal grandmother (PGM) told DCFS that the family was in shock after the
killing. As a youth, Father had
hallucinations and put his head through a window: he was diagnosed with attention deficit disorder
when he was 10 or 12 years old, and was diagnosed as bi-polar when he was
21. He is irritable and short-tempered,
and was prescribed psychotropic medication, but does not use it. The PGM reported that Father and Elizabeth
“have big arguments†that result in walls being punched. She disclosed that Father has a
seven-month-old baby named Andres.
Jason’s mother has used drugs since age 16, and admitting using them
during her pregnancy with Jason.
Mother’s drug usage is unresolved and she barely knows her own child.
The
paternal grandfather (PGF) was shocked by Father’s situation and the
investigation. He wanted Father to take
his medications, but as an adult, Father could refuse it. The PGF was unwilling to leave Jason with
Father. Father and Elizabeth often
argued in Jason’s presence, but the PGPs would have them leave the house to
prevent Jason from being exposed to domestic
violence. The PGF stated that Mother
has a long, unresolved addiction to drugs:
when Mother resided at his home, the PGF “found a crystal
methamphetamine pipe under the baby Jason’s food.â€
Jason’s
maternal grandmother stated that Father was verbally and physically abusive to
Mother, even hitting Mother when she was pregnant. She described him as a “bad person†with an
explosive temper. She believed that
Mother is no longer using drugs, while acknowledging that her daughter has a
history of drug usage.
D.’s
maternal grandmother stated that her daughter Elizabeth and Father came to her
home after the shooting and seemed nervous.
Elizabeth, crying, asked her
to take care of D. forever. After her
arrest, Elizabeth told her mother that Father forced her to lure F. out of
home, then said, “I told you that you were going to pay for it†and shot him
twice. Elizabeth
described Father as aggressive, and her mother saw bruises on Elizabeth’s
arms, eye and legs.
Mother was
drug testing: she had negative results
on February 17, failed to appear on March 5, and tested positive for alcohol on
March 21. Jason visited Father in jail
and was confused because he could not have physical contact with Father. Mother’s visits went well, although Jason
“demonstrated resistance to the most recent visitation and is displaying acting
out behaviors at school, including biting, on the days after each visit.†The
PGPs reported that Father began using marijuana at age 16 to “self-medicateâ€
and avoid using prescribed psychotropic medications.
Jason was playful, energetic and
joyful, and interacts positively with the PGPs.
He has a strong attachment to them and accepts their parenting: they have been his primary caretakers since
he was two days old. Hospital reports
confirmed that Jason was exposed in utero to methamphetamine, and the PGPs
believe that he was exposed to alcohol as well.
Other concerns included the trauma of Father’s arrest in Jason’s
presence; three lengthy police searches of the PGP’s home; the handcuffing of
the PGPs; and the removal of D. from the home.
The
jurisdiction hearing was held on April 17, 2012. Father argued that the evidence shows only
that he was arrested and there are no witness statements showing his connection
with a crime. He asked the court to
dismiss the allegations that he shot and killed F.R. because DCFS failed to
show that Father caused the death. DCFS
countered that Father was arrested for the murder of a 17-year-old victim, and
Elizabeth told DCFS that Father committed the killing in front of her and D. She also told her mother that she was forced
to lure F. out of the house, whereupon Father told him he would pay and shot
him twice.
The court
sustained the petition, finding that Father “allegedly†shot and killed a
17-year-old unrelated male in the presence of D., a crime for which Father was
arrested. Father’s commission of the
“alleged†murder poses a substantial risk of harm to Jason and shows an
inability to adequately supervise or protect Jason; further, Father caused the
death of a child, thereby endangering Jason’s safety. The court dismissed a count alleging that
Father placed Jason’s half-sibling in an endangering situation by shooting F.
in D.’s presence. As to Mother, the
court sustained an allegation that she has a history of substance abuse and currently
abuses amphetamines and alcohol, as shown by a recent drug tests, which
endangers Jason’s physical and emotional health and safety.
DCFS asked
the trial court to reconsider wording it added to the petition that Father
“allegedly†shot and killed F.R. and the “alleged†murder endangers Jason. DCFS argued the wording compromised the
court’s jurisdictional finding, making it “unclear whether the court has found,
by a preponderance of the evidence, that the father actually shot the minor,
[F.].†DCFS asserted that it presented
the court with sufficient evidence upon which to find that Father actually shot
and killed F., placing Jason at risk of harm.
Father contested the motion and asked the court to reconsider its ruling
and “dismiss the petition.â€
At a hearing on June 22, 2012, the
court granted the petition for reconsideration over Father’s objections and
removed the words “allegedly†and “alleged†from the sustained counts. The jurisdictional finding now reads that
Father shot and killed F. and committed murder.
At the same hearing, the court rendered its disposition. DCFS and Jason’s attorney asked the court to
deny reunification services because Father caused the death of a minor. Father argued that he has not been convicted
and the court cannot deny reunification services simply because he is
incarcerated.
The court declared Jason a
dependent of the court and found that there is a substantial danger if he were
returned to parental custody. The court
ordered reunification services for Mother, requiring her to complete a drug rehabilitation
program with random drug testing, and to complete individual counseling to
address case issues. The court also
ordered counseling for Jason, conjoint with Mother if his counselor finds it
appropriate. Mother was given monitored
visitation, with DCFS having discretion to liberalize. Father was denied reunification services
because he caused the death of a child.
Father timely appeals from the disposition.
DISCUSSION
1. Modification Order
An order
made by the dependency court “in the case of any person subject to its
jurisdiction may at any time be changed, modified, or set aside, as the judge
deems meet and proper.†(§ 385.) Section 385 authorizes the court, without new
evidence, to “reconsider the substance of a previous order the court considers
to have been erroneously, inadvertently or improvidently granted.†(Nickolas
F. v. Superior Court (2006) 144 Cal.App.4th 92, 116.) The power to modify a prior order is
permitted by the state Constitution to ensure the orderly administration of
justice, so long as there is notice and an opportunity to be heard. (Id. at
pp. 116-117.) This Court recognizes the
juvenile court’s power to correct an erroneous ruling. (In re
Jamika W. (1997) 54 Cal.App.4th 1446, 1450.)
DCFS
brought a motion for reconsideration, giving Father notice of its intention to
ask the court to change its jurisdictional findings to remove the word
“alleged.†At the hearing, Father’s
attorney said, “If the court is going to reconsider, the court should dismissâ€
the allegations against Father. The
court modified its prior order, over Father’s objections. Father had notice and an opportunity to be
heard, satisfying due process considerations.
(Nickolas F., supra, 144
Cal.App.4th at pp. 117-118.) The
juvenile court’s modification “will not be disturbed on appeal absent a clear
abuse of discretion.†(
Father maintains that the court
erred when it modified its findings because “Nothing had changed. The [criminal] allegations were still
allegations. ‘Allegedly’ and ‘alleged’
still applied.†When making
jurisdictional findings, the juvenile court does not address criminal
culpability: “the standard of care and
the burden of proof in dependency are lower than in a criminal
proceeding.†(Los Angeles County Dept. of Children & Family Services v. Superior
Court (2012) 211 Cal.App.4th 13, 21.)
It is not necessary to secure a criminal conviction before making
jurisdictional findings in a dependency case.
(In re Ethan C. (2012) 54
Cal.4th 610, 630 (Ethan C.).) Section 300 allows the court “to adjudge a
child a dependent if the court finds that the want of ordinary care by the
child’s parent or guardian caused another child’s death.†(Ethan
C., at pp. 617-618.) As a result,
the juvenile court did not abuse its discretion by modifying its jurisdictional
finding to state that Father “caused the death†of F.R., rather than finding
that Father “allegedly†caused the boy’s death.
2. Sufficiency of the Evidence
Father challenges the court’s
findings under section 300. “‘In reviewing a challenge to the sufficiency of
the evidence supporting the jurisdictional findings and the disposition, we
determine if substantial evidence, contradicted or uncontradicted, supports
them. “In making this determination, we
draw all reasonable inferences from the evidence to support the findings and
orders of the dependency court; we review the record in the light most
favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.’†(In re
I.J. (2013) 56 Cal.4th 766, 773; In
re Heather A. (1996) 52 Cal.App.4th 183, 193.)
a. Dependency Jurisdiction Lies Regardless of
Father’s Claims of Error
At the outset, we observe that “a
jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if
the actions of either parent bring
her within one of the statutory definitions of a dependent.†(In re
Alysha S. (1996) 51 Cal.App.4th 393, 397, italics added;
11, 16; In re P.A. (2007) 155
Cal.App.4th 1197, 1212.) Father concedes
that Mother’s substance abuse endangers Jason’s physical and emotional health
and safety under section 300. (AOB 27)
As a result, “the court’s exercise of jurisdiction over the child is
appropriate.†(In re J.K. (2009) 174 Cal.App.4th 1426, 1431.) Jason must be protected from Mother’s
behavior, regardless of Father’s conduct, so dependency jurisdiction is proper.
Lies Under Section 300(f)
name="_ftnref3" title="">[3]
Section 300(f) specifies that the
juvenile court may exercise jurisdiction if “[t]he child’s parent or guardian
caused the death of another child through abuse or neglect.†This subdivision was amended in 1996 to
delete the requirement of a criminal
conviction. (Ethan C., supra, 54 Cal.4th at pp. 629-630.) Section 300(f) “merely refers to the death of
‘another child,’ and does not specify that the deceased child necessarily must
have any family or custodial connection to the ‘parent or guardian’ who caused
the death.†(Id. at p. 636, fn. 18.)
Dependency jurisdiction is appropriate even if a parent’s “lethal
carelessness†does not necessarily amount to criminal behavior. (Id.
at p. 636.) There need only be a “breach
of ordinary care.†(Id. at p. 637.)
“[T]he juvenile court may
adjudicate dependency under section 300(f) without any additional evidence or
finding that the circumstances surrounding the parent’s or guardian’s fatal
negligence indicate a present risk of harm to surviving children in the
parent’s or guardian’s custody.†(
C., a father failed to secure his year-old daughter in a child seat before
a car accident that was not his fault. (
was proper under subdivisions (b) (due to parental domestic violence and
cognitive impairments) and (f) (due to the child’s death in the traffic
accident). (Ethan C., at p. 621.) The
Supreme Court affirmed because “the father’s negligent failure to secure his
young daughter in a child safety seat was a substantial contributing cause of
her death in an ensuing traffic accident.â€
(Id. at p. 618.)
Certainly, if the
negligently-caused death of a child in a traffic accident is a sufficient basis
for establishing dependency jurisdiction under section 300(f) (as in
unarmed minor during an argument indicates a present risk of harm to other
children in the shooter’s custody. “[I]t
is ‘“[t]he enormity of a deathâ€â€™ of a
child arising from parental inadequacy that invokes†dependency
jurisdiction. (Ethan C., supra, 54 Cal.4th at p. 634.)
Substantial evidence supports the
juvenile court’s finding that Father caused the death of another child. In an interview with DCFS, an eyewitness,
Elizabeth, stated that she saw Father shoot F.R. “in front of my son and
me.†She did not call police after the
shooting because she is afraid of Father.
Elizabeth’s mother was interviewed and stated that Elizabeth and Father
came to her home after the shooting and seemed nervous. Elizabeth asked her mother to take care of D.
forever. After Elizabeth was arrested,
she told her mother that Father forced her to lure F. out of his home, then
shot him twice. Under a civil dependency
standard, this evidence is sufficient to uphold a sustained allegation that
Father caused the death of a 17-year-old child within the meaning of section
300(f).
c. Jurisdiction Under Section 300(a) and (b)
As we have found, substantial
evidence supports the juvenile court’s finding that Father caused the death of
a child under section 300(f). Father
also challenges the sufficiency of the evidence underpinning the court’s
findings of jurisdiction pursuant to other subdivisions in section 300. His challenges need not be addressed.
A judgment will be upheld “if the
evidence supports the decision on any one
of several grounds[.]†(
873, 875, italics added; D.M. v. Superior
Court (2009) 173 Cal.App.4th 1117, 1127.)
Otherwise stated, “‘When a dependency petition alleges multiple grounds
for its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the
other alleged statutory grounds for jurisdiction are supported by the
evidence.’†(In re I.J., supra, 56 Cal.4th at p. 773, italics added;
438, 451.)
If there is any basis for asserting
jurisdiction, no reversal of the judgment occurs even if other bases are improper. (Randi R.
v. Superior Court (1998) 64 Cal.App.4th 67, 72.) The purpose of the dependency proceeding is
“to protect the child, rather than prosecute the parent.†(In re
Alysha S., supra, 51 Cal.App.4th at p. 397.) The courts are not concerned with each count
alleged in the dependency petition:
unlike a criminal prosecution, no prison sentence is meted out for each
count. If evidence supports even one
allegation of parental abuse or neglect, the courts must act to protect the
child from harm and assert jurisdiction over the child. Given the gravity of the sustained section
300(f) allegation in this case, the court had to exert jurisdiction to protect
Jason and ensure that Father undergoes all necessary counseling and treatment
programs.
In any
event, section 300(a) and (b) focus on whether there is a substantial risk that
the child will suffer serious physical harm at the hands of his or her
parent. There can be no doubt that
Father is an extremely dangerous person.
He refuses to take prescribed psychotropic medications and instead
engages in “self-medication,†according to his parents. He has a conviction for causing injury to
Jason’s mother, Irma J., and is reported to have hit Mother when she was pregnant
with Jason. He had “big arguments†with
Elizabeth inside the PGPs’ house, that resulted in walls being punched. Father forced Elizabeth to lure her
17-year-old lover from his home, so that he could shoot the boy. Elizabeth described Father as violent and
aggressive, and her mother observed bruises on Elizabeth’s arms, eye and
legs. Father committed the killing in
front of his son D., who was sitting in the car and observed the incident. Father was arrested for murder in the
presence of Jason and his brother.
Father has abundantly demonstrated that he has no self-control,
committed the most serious of crimes in front of his child, and poses a
substantial risk to Jason.
3. Denial of Reunification
Services
“[T]he
general rule is that when a dependent child is removed from the parent’s or
guardian’s physical custody . . . family reunification services, must be
offered.†(Ethan C., supra, 54 Cal.4th at p. 626.) Reunification services need not be provided
in every case, however. (
“Among the findings that will permit a denial of reunification services
is that ‘the parent or guardian . . . has caused the death of another child
through abuse or neglect.’†(
When parental misconduct has
culminated in a death, the circumstances that justify removal of the children
from parental custody also give rise to a presumption against
reunification. (Ethan C., supra, 54 Cal.4th at p. 634.) A father who killed an unrelated child when
both were minors may be denied reunification services during his
adulthood. (Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 484,
489-490.) The juvenile court relied on
Father’s role in killing a child when it denied reunification services. This disposition is an appropriate exercise
of the court’s discretion because there is no evidence that reunification is in
Jason’s best interests.
Although Jason resides with the
PGPs, Father had sole physical custody until the boy was detained when Father
was arrested. Mother now wishes to take
custody of Jason, claiming she has achieved sobriety and is a fit and stable
parent. What will happen to Father and
Mother remains to be seen. One thing is
clear, however: the court had to remove
Jason from parental custody and have DCFS oversee the child until a decision
can be made that best suits his interests.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
CHAVEZ, J. FERNS,
J.*
__________________________________________________________________
* 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] Unlabeled
statutory references refer to the Welfare & Institutions Code.
name="_ftn2" title="">[2] The
amended petition alleges that Mother has a history of substance abuse and
tested positive for alcohol and methamphetamines on January 24, 2012.
