In re Jaylon D.
Filed 7/25/13 In re Jaylon D. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re Jaylon D. et al., Persons Coming Under the Juvenile Court
Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
Jason D.,
Defendant and Appellant.
D063640
(Super. Ct.
No. SJ12843A-B)
APPEAL from
judgments of the Superior Court
of
County, Garry G. Haehnle, Judge.
Affirmed.
Andrea R.
St. Julian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Patrice Plattner-Grainger and Dana C. Shoffner, Deputy County Counsel, for
Plaintiff and Respondent.
Jason D.,
father of Jaylon D. and Victoria D. (the children), appeals the disposition
orders
declaring the children dependents of the court and removing them from his
custody. Jason contends there was
removal orders and the court's jurisdictional findings that the children are
persons described in Welfare and Institutions Code section 300, subdivisions
(a) and (j).
title="">[2] We affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
In December 2012, the San
Diego County Health and Human Services Agency (the Agency) filed petitions
on behalf 12-year-old Jaylon and eight-year-old Victoria under section 300,
subdivision (a), alleging the children had suffered, or there was a substantial
risk they would suffer, serious physical harm inflicted by Jason
nonaccidentally. The petition filed on
behalf of Jaylon alleged that Jason held and twisted Jaylon's right wrist,
causing Jaylon to fall to the ground in pain.
The petition filed on behalf of Victoria
alleged that Jason slapped Victoria
on the face and, in a separate incident, burned her arm with a curling
iron. Both petitions included an
allegation that the children's mother, Blanca D., had failed to adequately
protect the child, and an allegation under section 300, subdivision (j), that
the child was at a substantial risk of abuse or neglect because of Jason's
abuse of the child's sibling. The court
ordered both children detained with Blanca.
At the time of the alleged incidents, Jason and Blanca were
separated after a 12-year marriage and were going through marriage dissolution
proceedings, which included contentious custody issues. The children resided with Blanca and had
visitation with Jason on Tuesdays, Wednesdays, and Thursdays from 4:00 p.m. to 7:00
p.m. and every other weekend.
The
Agency's detention report stated that on October 24, 2012, the Agency received a referral
alleging Jason had physically abused Victoria
while she was riding in the front seat of Jason's car and Jaylon was in the
backseat. Jason reportedly became angry
with Victoria for disobeying and
disrespecting him and hit her on the mouth and side of her leg. Victoria
told the social worker that Jason became upset and yelled at her when he
learned that she had taken Jaylon's hat to school without permission. He slapped her and she began to cry because
it hurt. Jason asked her, "Why are
you crying?"
Victoria
told the social worker Jason usually disciplined her and Jaylon by yelling or
hitting them, and they never knew how he was going to react when he became angry. She said she was scared of Jason at times
because she did not want him to get mad and hurt them. She wished he would "change" his
temper and not be so mean. When asked
about drug or alcohol use at the home, Victoria
said Jason drank a lot of Bud Light and carried a cooler with beer in it when
they went places. She said, "He
always puts beer inside a soda cup, like if it is soda. He sometimes carries it in the car and takes
sips while he is driving." Jaylon
also told the social worker that Jason drank beer and put it in a
"fountain drink cup" while driving in case he got pulled over by the
police.
On November 7, 2012, the Agency received
a second referral alleging that during an argument with Jaylon over his grades,
Jason twisted Jaylon's wrist and pushed him to the ground. Blanca had arrived home with the children
after picking them up from school and saw that Jason was parked in their
parking lot. Jaylon went over to Jason
to talk about his grades and Blanca and Victoria went inside their apartment. Blanca started making dinner when she heard
Jaylon scream. She went outside and saw
Jaylon sitting on the grass in front of their doorway, holding his wrist and
crying. She immediately called the
police to document the incident. Jaylon
told the social worker that Jason was upset because he was getting a
"C" in his math class. Jason
told Jaylon that he would move him to a different school if he did not improve
his grades. Jaylon became upset and
said, "You can't move me from my school unless my mom agrees." Jason then grabbed and twisted Jaylon's wrist
and pushed him to the ground. As he
walked away he said, "Yeah, I do whatever I want with you so you better
get those grades up!"
The
previous March, Jason returned the children from a scheduled three-hour visit
one hour after he picked them up. The
children told Blanca they no longer wanted to go with Jason, and Jaylon
reported that Jason had spit on his head.
In April, Victoria
expressed concern that Jason's temper had been getting worse, and that Jason
had been hitting and spitting on Jaylon.
On November 27, 2012, an Agency social
worker met with the family and saw that Victoria
had a severe burn on her left arm. Victoria
told the social worker Jason had burned her arm with a hot curling iron to
prove to her the iron was still hot. The
incident occurred while Jason and the children were visiting Jason's parents in
Wyoming during their Thanksgiving
vacation. Victoria
said Jason unplugged the iron and she was about to place it on a counter. Jason told her not to because it was still
hot. She responded that the iron cools
down once it is unplugged. Jason quickly
tapped the iron with his finger and asked if she still thought it had cooled
down. When she replied that it was not
hot, Jason placed the iron on her arm and said, "See, it is
hot." Victoria
began to cry because it hurt and Jason said, "Why are you crying? I barely tapped you." When she showed him the burn on her arm the
next day, he apologized and put cream on it.
When the
social worker first contacted Jason by phone to schedule an appointment to meet
him in person, Jason yelled at her and used foul language. However, when the social worker met with him
six days later he apologized for his behavior on the phone. He denied that he was physically abusive
toward the children. He told the social
worker he never intended to burn Victoria
and, in his opinion, she was not hurt.
He explained he did not want her to place the curling iron on a stack of
papers and was trying to prove to her the iron was still hot when he tapped it
and told her it was hot. Victoria
gave him a "sassy, smart aleck look," so he tapped her on the arm
with the iron. He told the social worker
that he did not notice any mark or burn on her arm until the next day and that Victoria
did not complain of any pain.
Regarding
the allegation that he slapped Victoria on the face in his car, Jason said he
only "tapped" her cheek because she acted "sassy" and made
a "screw you" face at him while he was scolding her for taking
Jaylon's hat to school after being told not to.
He admitted that Victoria
began to cry, but said she cried all the time because she was a "drama
queen."
Jason
denied twisting Jaylon's wrist. He said
he was talking to Jaylon about improving his grades and Jaylon said,
"Yeah, whatever." Jaylon's
response upset him so he grabbed Jaylon's hand and "squeezed it"
firmly. Jaylon began to scream and
"went limp" and fell to the ground.
In the
jurisdiction/disposition report, the social worker reported that she had asked
the children to draw or write things that fell within each of the following
three categories: House of Worries,
House of Good Things, and House of Dreams.
Jaylon's list House of Worries included, "Getting late to the
visitations. My dad gets mad if [we're]
late. He could wait a little
longer." Under "House of Good
Things" Jaylon wrote, "Going a little bit less times with my dad. To go lik[e] visits before. Wednesdays.
And every other weekend only."
Jaylon's House of Dreams included, "No stress – Meaning there is no
pressure from my dad about mostly everything for example not as much
visitations[.]" Under "House
of Worries" Victoria
wrote: "My dad will get mad and he
will yell or hit me and my brother[,]" and "I will live with someone
else and I won't see my dad and my mom[.]"
Victoria's House of Dreams included, "My dad will not be that rough
with me and my brother[.]"
Jason told
the social worker he disagreed with the allegations of the petitions. He admitted making "dumb mistakes not
intended to injure" the children, but denied hurting them. He stated his relationship with the children
"was being strained and ruined because of [Blanca,]" and that Blanca
"keeps screwing around with [the children's] well[-]being" and was
"trying to ruin [him]." He
described Blanca as a "hateful person" who "[f]akes it in front
of people." He expressed that he
was frustrated with the social worker and stated: "The allegations are BS. I will do anything, I just want them
back. I know who I am and I am a damn
good dad. I am just a normal human being
that just wants his kids."
Blanca told
the social worker: "Jason needs to
become mature. Recognize he has a
problem. His behavior has consequences. He needs help to control and recognize his behavior
and temper and his problem with alcohol.
If he really loves the children the way he says he does he needs to do
what is asked of him. He has
characteristics of being a good dad, but his behavior doesn't allow him
to[]."
An addendum
to the jurisdiction/disposition report, filed on the day of the
jurisdiction/disposition hearing, addressed Jason's visitation with the
children. After Jason's initial visit at
New Alternatives – Family Visitation Center,
staff member expressed concern that Jason was a bit intimidating and
"borderline inappropriate," and was not receptive to being redirected
during the visit. The New Alternatives
staff was concerned that Jason would "go off on us" if redirected
during future visits. The staff member
who monitored the visit reported that Jason was controlling and passive
aggressive with the children during the visit.
The social
worker reported that when she discussed the visitation supervisors' concerns
with Jason, Jason "appeared to be more concerned with the system's
involvement than the actions that brought the family to the Agency's
attention. [Jason] went off topic and
made statements to the [social worker] about why there is not more information
about how the mother has done wrong and why is the report about what he has
done wrong." The Agency recommended
that Jason "continue to have supervised visitation with the children for
the following reasons: incidents of
inflicted physical harm toward[] the children by the father, the father's
demeanor during the Agency's involvement, the father's behavior during
supervised visitation, children's statements, and the children's three houses
illustrations . . . ."
At the
jurisdiction/disposition hearing, the court admitted the Agency's detention
report, jurisdiction/disposition report, and two addendum
reports into evidence. Jason testified
at the hearing about the three incidents alleged in the Agency's petitions and
gave essentially the same version of each incident that he had previously given
to the social worker. Regarding the
incident in which he allegedly twisted Jaylon's wrist, Jason admitted that
squeezing Jaylon's hand was not the best course of action and noted that he
should have "just walked him to the front door, gave him a hug and kiss
and say I will see you tomorrow."
Regarding the incident in which he allegedly slapped Victoria, he
testified that "tapping" Victoria on the cheek and admonishing her to
show respect and not get sassy was not the best way to handle that
situation. Instead, he should have parked
the car and then talked more to Victoria about the incident because "the
conversation that was being done up to that point was all on the highway. And you can't really have a conversation
driving on the highway."
Jason
testified that the curling iron incident that resulted in his burning Victoria
was "the biggest mistake of my life."
He could have handled that situation better by talking to Victoria
instead of trying "to use an example[.]" He added, "I should have just put the
curling iron down and told her it was hot.
Don't touch it until it cools down and just left it alone and gone on
with our day."
On
cross-examination, Jason testified that he did not think he had a problem with
his temper or handling his anger with people other than his children. He said he was learning "better ways to
teach kids things," and admitted that he needed to learn patience and to
be able to listen to his children.
The court
sustained the petitions and found the allegations under section 300,
subdivisions (a) and (j), true by clear and convincing evidence.
Jason's custody and placed with Blanca.
The court directed the Agency to provide services to both parents and
ordered the parents to comply with those services. The court authorized telephonic visitation
between Jason and the children for at least one hour twice a week, and
authorized Jason to attend the children's extracurricular activities as long as
there was no one-on-one contact between him and the children. The court gave the social worker the
discretion to lift the supervision of Jason's visitation with the children and
allow overnight and weekend visits with notice to children's counsel. The court also gave the social worker
discretion to allow a 60-day trial visit with the concurrence of children's
counsel.
DISCUSSION
I. Jurisdictional
Findings
Jason
contends the court's jurisdictional findings are not supported by substantial
evidence. He argues that because he has
acknowledged that the manner in which he disciplined the children in the three
incidents alleged in the petitions was inappropriate and he is committed to
changing his behavior, there has been no showing the children continue to be at
risk.
"At
the jurisdictional hearing, the court determines whether the minor falls within
any of the categories specified in section 300.
[Citation.] ' "The
petitioner in a dependency proceeding must prove by a preponderance of the
evidence that the child . . . comes under the juvenile
court's jurisdiction." '
[Citation.] On appeal from an
order making jurisdictional findings, we must uphold the court's findings
unless, after reviewing the entire record and resolving all conflicts in favor
of the respondent and drawing all reasonable inferences in support of the
judgment, we determine there is no substantial
evidence to support the findings."
(In re Veronica G. (2007) 157
Cal.App.4th 179, 185.)
Evidence is
" '[s]ubstantial' " if it is " 'reasonable, credible, and of
solid value.' " (In re S.A.
(2010) 182 Cal.App.4th 1128, 1140.) It
is the trial court's role to assess the credibility of witnesses and resolve
the conflicts in the evidence. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52.)
"We do not evaluate the credibility of witnesses, reweigh the
evidence, or resolve evidentiary conflicts.
Rather, we draw all reasonable inferences in support of the findings,
consider the record most favorably to the juvenile court's order, and affirm
the order if supported by substantial evidence even if other evidence supports
a contrary conclusion. [Citation.] The appellant has the burden of showing the
finding or order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal.App.4th
942, 947.)
Section 300
requires proof the child is subject to the defined risk of harm at the time of
the jurisdictional hearing. (
1387, 1396.) A parent's " '[p]ast
conduct may be probative of current conditions' if there is reason to believe
that the conduct will continue." (
461.) " 'The court need not
wait until a child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child.' " (In re
I.J. (2013) 56 Cal.4th 766, 773.)
Jurisdiction is proper based on the neglect and abuse of one parent,
even if the other parent is capable of providing appropriate care. (In re
Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.)
We conclude
substantial evidence supports the court's jurisdictional findings under section
300, subdivision (a), that the children were at substantial risk of suffering
serious physical harm. The evidence
showed that Jason had a history of losing his patience and temper with the
children when he thought they were behaving disrespectfully toward him or not
meeting his expectations. There was
evidence that before the three incidents alleged in the Agency's petitions,
Jason had been hitting and spitting on Jaylon, and Victoria had expressed concern
that Jason's temper was getting worse.
In April 2012, Victoria said she believed Jason was "really
stressed out" and that is why he had been hitting Jaylon. There was also evidence that Jason became
angry and yelled at the children and yelled at Blanca and insulted her in front
of the children. Both children reported
that Jason drank a lot of beer and would sometimes drink it from a soda cup
when he was driving to hide the fact that he was consuming alcohol.
During the
course of the dependency proceedings, Jason displayed inappropriate behavior
during visitation with the children. He
became angry at a visit in December 2012 when the social worker informed him
that the court had approved the children to travel to Mexico with Blanca to
visit her family. He complained about
the court's order in an aggressive tone and the social worker told him to calm
down. The staff at New Alternatives
reported Jason's behavior was "borderline inappropriate" and they
were concerned he would "go off" if redirected during visits. Jason was verbally aggressive and sarcastic
over the phone with the staff member who contacted him to schedule his first
visit at New Alternatives. During that
visit, which occurred two weeks before the jurisdiction/disposition hearing,
Jason reportedly engaged in controlling and passive-aggressive behavior toward
the children. He frequently interrupted
the children when they were speaking and repeatedly asked them questions
without letting them answer.
The three
incidents alleged in the petitions occurred in a relatively short period of
time (between October 9 and November 24, 2012) and it was a relatively short
period of time from the date the Agency filed the petitions (December 5, 2012)
to the jurisdiction/disposition hearing on January 29, 2013. The court was entitled to accept the
children's version of the those incidents and conclude that although Jason had
good intentions, the children were still at risk. Specifically, the court was entitled to
accept Victoria's statements that Jason slapped her on the face and Jaylon's
statements that Jason forced him to the ground by painfully twisting his wrist,
and reject Jason's statements that he merely "tapped" Victoria on the
cheek and squeezed Jaylon's hand and that Jaylon voluntarily went limp and went
to the ground.
In
the jurisdiction/disposition report, the social worker concluded that Jason had
failed to accept full responsibility for his behavior and the injuries he
caused to the children, and that he lacked the ability to recognize and control
his temper, which had led to his unnecessary use of physical discipline. The social worker noted that Jason repeatedly
attributed the Agency's involvement with the family to Blanca's desire to
"ruin" him. The social worker
opined that Jason's behavior showed "a significant lack of concern for the
children's safety and the lack of education and knowledge about proper child
discipline." The court was entitled
to find the social worker's opinion credible, and to give great weight to her
assessment. (In re Casey D., supra, 70
Cal.App.4th at p. 53.)
Section
300, subdivision (a), expressly authorizes the court to base a finding of a
substantial risk of serious future injury "on the manner in which a less
serious injury was inflicted, a history of repeated inflictions of injuries on
the child or the child's siblings, or a combination of these and other actions
by the parent . . . which indicate the child is at risk of
serious physical harm." Based on
the evidence discussed above, the court could reasonably conclude that although
Jason's testimony at the jurisdiction/disposition hearing indicated he was
beginning to take responsibility for his actions and acknowledge he had engaged
in inappropriate conduct toward the children, at the time of the hearing, there
was still a substantial risk he would inflict serious physical harm
nonaccidentally upon the children.
Jason
relies on In re J.N. (2010) 181
Cal.App.4th 1010 (J.N.) in arguing
that the incidents alleged in the Agency's petitions did not reach the level
necessary for the court to take jurisdiction under section 300, subdivisions
(a) and (j). However, the issue in
single episode of parental conduct was sufficient to
bring . . . children within the juvenile court's jurisdiction." (J.N.,
supra, 181 Cal.App.4th at p.
1022.) Here, there was not only evidence
of the three distinct episodes of parental conduct alleged in the petitions,
but also evidence that Jason had a history of other inappropriate conduct
directed at the children, such as spitting and hitting, and an escalating
problem with controlling his anger and inappropriately disciplining the
children. The evidence sufficiently
supports the court's jurisdictional findings under section 300, subdivision
(a).
Regarding
the allegations of the petitions under section 300, subdivision (j), we note
that " '[w]hen 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.)
Although it
is unnecessary to address the court's findings under section 300, subdivision
(j), we conclude that the evidence supporting the court's findings under
section 300, subdivision (a), as to both Jaylon and Victoria, also supports the
court's findings under subdivision (j).
Section 300, subdivision (j), provides that a child is within the
jurisdiction of the juvenile court if "[t]he child's sibling has been
abused or neglected, as defined in subdivision (a) [serious physical harm
inflicted nonaccidentally] . . . , and there is a
substantial risk that the child will be abused or neglected, as defined in
those subdivisions." The evidence
presented at the jurisdiction/disposition hearing sufficiently supports the
court's findings under section 300, subdivision (j), because it shows a pattern
of anger-driven excessive discipline directed toward both children that puts them equally at risk of serious physical
harm inflicted by Jason nonaccidentally.
I. Dispositional
Findings
To remove
the children from Jason's parental custody, the Agency was required to prove by
clear and convincing evidence that
"[t]here is or would be a substantial danger to [their] physical health,
safety, protection, or physical or emotional well-being [if they] were returned
home" and removal was the only reasonable means of protecting their
physical health (§ 361, subd. (c)(1)).
"The parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate.
The focus . . . is on averting harm to the
child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.) The court is entitled to consider the
parents' past conduct and current situation and gauge whether they have
progressed sufficiently to eliminate any risk.
(In re S.O., supra, 103
Cal.App.4th at p. 461; cf. In re Jonathan
R. (1989) 211 Cal.App.3d 1214, 1221.)
On
appeal, Jason has the burden of showing there is no substantial evidence
justifying removal. (
establish a given fact, where the law requires proof of the fact to be clear
and convincing, is primarily a question for the trial court to
determine . . . ."
[Citations.]' [Citation.] Thus, on appeal from a judgment required to
be based upon clear and convincing evidence, 'the clear and convincing test
disappears . . . [and] the usual rule of conflicting
evidence is applied, giving full effect to the respondent's evidence, however
slight, and disregarding the appellant's evidence, however strong.' " (Sheila
S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881, quoted in
580-581.) "We do not reweigh the
evidence, evaluate the credibility of witnesses, or resolve evidentiary
conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
As noted,
the court found the allegations of the petitions true by clear and convincing
evidence, even though the standard of proof for jurisdictional findings is
preponderance of the evidence. Based on
the evidence of Jason's past incidents of inappropriately disciplining the
children, the aggressive behavior and attitude he displayed during
disposition hearing, and the social worker's assessment that he had not
accepted full responsibility for the injuries he had caused to the children and
was unable to recognize and control his temper, the court could reasonably find
removal was appropriate to avert future harm to the children. Although the record shows that Jason has
fully participated in services and visitation and is committed to doing
whatever it takes to regain his shared custody of the children, there is
sufficient evidence to support the court's determination that as of the time of
the jurisdiction/disposition hearing, Jason had not sufficiently progressed to
eliminate any risk of harm to the children and the necessity of removal.
DISPOSITION
The
judgments are affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] In a dependency case, the disposition order is the first
appealable order and constitutes the judgment in the case. (In re
S.B. (2009) 46 Cal.4th 529, 532; In
re Melvin A. (2000) 82 Cal.App.4th 1243, 1250.)
name="_ftn2" title="">[2] All further statutory references are to the Welfare and
Institutions Code.
