In re J.C.

Filed 12/22/09 In re J.C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. Marguerite D. Downing, Judge. Affirmed.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel and Timothy M. OCrowley, Deputy County Counsel, for Plaintiff and Respondent.

Father of J.C. (father) appeals from jurisdictional and dispositional orders of the juvenile court. Father contends that substantial evidence does not support the juvenile courts decision to sustain the allegations set forth in subdivision (b)(2) of the Welfare and Institutions Code section 300 petition filed on behalf of J.C.,^[1]and that the juvenile court abused its discretion in making dispositional orders requiring father to participate in counseling and parent education. We affirm the orders of the juvenile court.

STATEMENT OF THE CASE AND FACTS

Father is the presumed father of J.C., born in July 1995. C.T. (mother) is J.C.s mother.^[2]

In April 2008, the Los Angeles County Department of Children and Family Services (DCFS) received a referral regarding J.C. The reporting party observed marks on J.C.s neck and shoulder. Mother stated that J.C. had wanted to go and stay with his grandparents. Stepfather tried to push him out the door, and when J.C. resisted, stepfather threw him to the ground. J.C. stated that stepfather attempted to choke J.C. and punched him with a closed fist all over his body. J.C. then got up and attempted to attack mother, hitting her on the face and the side of her left ear. Stepfather admitted that he hit J.C., causing scratches and bruises to the minors body. J.C. admitted that he hit mother on the face.

Mother stated that J.C. had behavioral problems and that she was planning on seeking mental health services. She also stated that J.C. had witnessed very violent confrontations between mother and father, who had been incarcerated due to domestic violence. Mother and father had been separated for several years and were involved in an on-going family law matter. Both parents admitted to a history of domestic violence. For this reason, mother avoided dealing with her son when he was at his fathers house. Father avoided direct contact with mother by dealing directly with J.C.s school regarding J.Cs behavior.

The family entered into a voluntary family maintenance plan requiring mother to attend domestic violence counseling and J.C. to attend individual counseling. DCFS agreed to provide family preservation services.

In June 2008, mother enrolled in a domestic violence program at the Womens Shelter in Long Beach. In July 2008, mother informed the DCFS social worker that the domestic violence program was being taught by fathers current girlfriend. The social worker advised mother that this may be a conflict of interest and that mother should enroll in a different class. Mother was provided referrals. However, mother never re‑enrolled in a domestic violence program. Mother also failed to ensure that J.C. participated in counseling.

J.C. continued to have behavior problems at home and at school. Mother was unable to resolve them. J.C. regularly ran away from mothers home to fathers home. Mother stated that fathers home is in a gang-infested neighborhood and that father has a history of drug abuse.

Father called DCFS in September 2008 requesting custody of J.C. because mother wasnt doing her job. At the time, J.C. was at the home of his mother but was not attending school.

Section 300 petition

On November 4, 2008, DCFS filed a petition on behalf of the children pursuant to section 300. The petition alleged that jurisdiction over J.C. was necessary because, among other things, J.C. was at risk of serious physical harm due to domestic violence (count a-1); and that the domestic violence between mother and father endangered J.C.s physical and emotional health and safety and placed him at risk of physical and emotional harm (count b-2).

A detention report filed the same date explained that J.C. and his half-siblings had been placed in protective custody due to the familys failure to comply with the voluntary family maintenance plan. The report stated that J.C. typically got in trouble at school, but if one parent was called or notified of such behavior, J.C. would leave that parents home and go to the home of the other parent. J.C. had been continually running away from one parents home to the other parents home instead of addressing the behavior that caused the conflict. J.C. would stay at one parents home until the next conflict arose.

The report stated that father was neglectful in how he addressed J.C.s behavior at home and at school. It further stated that mothers unresolved domestic violence issues, including her long history of domestic violence with father, caused a safety issue for her children. The DCFS report attached a copy of fathers criminal history, which included arrests for inflicting corporal injury on a spouse, vandalism, battery, robbery and attempted murder, and convictions for burglary and robbery.

DCFS was not able to locate a foster home that would take all three children. Therefore, J.C. was placed in a foster home apart from his two half-siblings. Father was not considered to be a suitable placement for J.C. because father condoned J.C.s repeated acts of running away from home, and because he admittedly yelled at J.C. for getting in trouble at school.

Detention hearing

Mother and father appeared on November 4, 2008, for the initial hearing on the section 300 petition. At the hearing, fathers attorney and J.C.s attorney requested that DCFS place J.C. in fathers custody. Father indicated that he had not resided with mother since J.C. was three years old, and denied any domestic violence in his current relationship. The court denied the request, based on the courts concern that father had not been more proactive in the case from an earlier time. In addition, the court felt that it was problematic that father chose not to deal with mother. In sum, the court stated, father knew what was going on and was certainly aware of his son running away.

J.C. remained detained in foster care. Father and mother were allowed unmonitored visitation with J.C.

Pre-release investigation report

On November 10, 2008, DCFS filed a pre-release investigation report. The report stated that stepfather had moved out of mothers home, therefore it was safe for the children to be returned to her.

DCFS reported that father had anger management issues that needed to be addressed. In addition, fathers girlfriend refused to submit to a Livescan.^[3] DCFS also noted that there were no smoke detectors in fathers home, which was a child safety issue.

Based on this report, the court released the children to their mother until the next court hearing. The court noted that the main problem bringing J.C. before the court appeared to be the relationship between [J.C.] and his father and his mother.

Jurisdiction/disposition proceedings

A jurisdiction/disposition report was filed by DCFS on December 9, 2008. DCFS reported that the children still resided with mother.

The social worker had interviewed J.C. about the incident which occurred in April 2008. J.C. had informed his mother that he wanted to go to his paternal grandparents house and asked mother to give him a ride there. Stepfather became upset with him, picked him up and slammed him to the floor. Mother yelled at J.C., who became upset and hit mother. After J.C. hit mother, stepfather came up behind him and hit his back. Then stepfather began to choke J.C. Mother kicked J.C. on the leg and scratched him on the face. J.C. reported that stepfather had never hit him before this incident. J.C. felt remorse for hitting his mother, and indicated he would not do it again.

J.C. stated that he did not remember any incident of domestic violence between his mother and father. However, his mother told him that his father used to hit her.

DCFS interviewed mother. She stated that father would slap her, push her, and pull her hair when they argued. When J.C. was six months old, father hit mother while the child was in her arms. Father began to argue with her, grabbed a crowbar, and hit her on the head. She was taken to the hospital and received five stitches. Police arrested father. Mother and father separated for a few months following this incident; however, when they resumed their relationship, the domestic violence also resumed. The last time mother remembered being hit by father was when J.C. was about four and a half years old. After one beating that left bruises all over mothers body, legs, and face, mother reported the incident and father went to jail for more than a year.

DCFS also interviewed father, who admitted that there was domestic violence in his relationship with mother and that he was arrested for domestic violence. However, he did not remember specific incidents.

J.C. informed DCFS that mother hits him when he gets in trouble. She hits him with her hands, a belt, and once with a jump rope. The last time he remembered really getting hit was when he was 10 years old.

J.C. told DCFS that G.G., father of one of J.C.s half-siblings, also hit mother. Mother acknowledged that G.G. had struck her in the face in front of J.C. Mother terminated their relationship after that.

DCFS recommended that J.C. and his siblings be declared dependents of the juvenile court and that J.C. be placed in the home of mother. DCFS further recommended that mother receive family maintenance services, and that father receive family reunification services. DCFS suggested that fathers visits with J.C. be monitored, and that he participate in a parent education program and a domestic violence program for perpetrators.

The jurisdiction/disposition hearing was scheduled for December 15, 2008. Mother and father appeared, represented by court appointed counsel. The court continued the matter for a mediation hearing, which was set for January 22, 2009.

Mediation agreement

A partial agreement was reached in mediation. The parties agreed that the children would remain in the home of mother, who would receive family maintenance services. G.G. and stepfather were to receive family reunification services. Stepfather would be permitted to return to live in the family home when his therapist recommended that he do so.

No agreement was reached as to father. The matter was continued to March 5, 2009, for a continued contested adjudication hearing.

Interim review report (Mar. 5, 2009)

DCFS filed an interim review report on March 5, 2009. J.C. and his siblings continued to reside with mother. Mother attended a domestic violence program, and stepfather attended anger management. J.C. was enrolled in individual counseling.

DCFS continued to recommend that J.C. and his siblings be declared dependents of the court, that family maintenance services be provided to mother, and that family reunification services be provided to father.

Jurisdiction/disposition hearing

On March 5, 2009, the court held a jurisdictional hearing. Father did not appear, but was represented by counsel. Mother appeared and was represented by counsel. The juvenile court received DCFSs reports into evidence without objection.

Counsel for DCFS argued that the reports detailed a serious history of domestic violence between mother and father in which father was the aggressor, and that such violence had occurred in the presence of the child. DCFS argued that the submitted reports evidenced a basis for the court to sustain counts a-1 and b-2 as to father.

Fathers counsel argued that the court should dismiss counts a-1 and b-2. Counsel pointed out that the alleged domestic violence between mother and father occurred over eight years ago, and that J.C. had no recollection of the incidents. Since the last incident, father and mother separated and had no intention of reuniting. Accordingly, counsel maintained that there was no nexus between these remote domestic disputes and any harm to J.C. Counsel for J.C. joined in all of fathers arguments reiterating J.C.s adamant statements that he did not recall any domestic violence between mother and father. Counsel for mother also joined in asking that counts a-1 and b-2 be dismissed for lack of evidence.

The court dismissed count a-1, noting that there was no evidence of physical harm to J.C. as a result of the domestic violence history between mother and father. However, the court amended and sustained count b-2 as follows:

The child, [J.C.s] parents . . . have a history of domestic violence including the father physically assaulting the mother in the presence of the child. Such violent conduct on the part of father against the mother endangers the childs emotional health and places the child at risk of emotional harm, damage, and danger.^[4]

The court found by a preponderance of the evidence that the section 300 petition was true as amended. In response to fathers arguments, the court stated:

As to the issues with respect to . . . father, the court would dismiss a-1 because theres no evidence of serious physical harm as a result of the domestic violence history; however, the court would sustain b-2 with some amendments.

One of the problems that have been referenced in the report with respect to [J.C.] is the fact that [J.C.] has a temper and erratic behavior and an anger management problem. And I am not certain that anger management problem is not a result of physical violence that he saw in his home either that he remembers or subliminally.

So the court does find a nexus between the parents domestic violence history and endangering the childs physical, more so his emotional behavior.

Later, the court reiterated I do see a connection between violence in the home at an early age and the fact that anger management is one of the minors issues at the tender age of 13.

All three children were released to mother under the supervision of DCFS. Mother was ordered to participate in domestic violence counseling for victims, parent education, and conjoint counseling with J.C. The court ordered that DCFS provide father with family reunification services and ordered that he complete parent education and conjoint counseling with J.C. when his therapist recommended it.^[5] Father was granted unmonitored visitation.

On March 12, 2009, father timely filed a notice of appeal challenging the courts jurisdictional and dispositional orders.

DISCUSSION

I. Jurisdictional findings

A. Jurisdiction over J.C. was proper

The juvenile court assumed jurisdiction over J.C. based on its finding that he was a child described under section 300, subdivisions (a) and (b). The allegations contained in count a-2 pertained to mothers actions in inappropriately disciplining J.C. The allegations contained in count b-1 pertained to stepfathers actions in inappropriately disciplining J.C. And the allegations in count b-5 pertained to the behavior of G.G. in physically assaulting mother. Count b-2, which father challenges, contained allegations that the domestic violence by father against mother constituted a basis for jurisdiction.

Father makes no argument that the allegations found in counts a-2, b-1 and b-5, based on the conduct of mother, stepfather, and G.G., should not have been found true.

Dependency jurisdiction is properly established where the evidence proves the applicability of any single subdivision of section 300. (In re Shelley J. (1998) 68 Cal.App.4th 322, 330; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.) In addition, a juvenile court may properly assume jurisdiction even where the jurisdictional allegations are found true as to only one parent. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent].) Because father does not challenge the courts jurisdictional findings under counts a-2, b-1 and b-5, jurisdiction would be proper even if fathers arguments were meritorious. (In re Jonathan B., supra, at p. 875.)

Father concedes that a section 300 petition need only contain allegations against one parent to support the exercise of the juvenile courts jurisdiction. Father further concedes that a jurisdictional finding that is good against one parent is good against both. However, father argues that we should review the courts decision to sustain count b-2 because of the potential future impact of this finding. Father argues that the finding labels [f]ather an offending parent, affects the courts dispositional orders, and could affect father if dependency proceedings were ever initiated or contemplated with regard to [f]athers younger children.

In support of his position, father cites In re John S. (2001) 88 Cal.App.4th 1140. In John S., a father appealed from the juvenile courts determination that his status as a registered sex offender constituted a prima facie showing that the child came within section 300, subdivisions (b) and (d). While the allegations against the mother would have provided a sufficient basis for jurisdiction, the court chose to consider the fathers arguments because if appellants challenge is successful, there could be an impact on both placement and reunification orders. (In re John S., at p. 1143.) Father also cites In reJoel H. (1993) 19 Cal.App.4th 1185. In Joel H., the court considered a moot appeal by the minors great-aunt and great-uncle because of the strong possibility that the minor would once again become the subject of dependency proceedings, and because of the courts desire to determine whether the home was suitable in the event that the minor had to be removed from his mothers custody. (Id. at p. 1193.)^[6]

In contrast to the situations presented in the cases cited by father, there is no indication that fathers arguments here would affect either placement or the courts reunification orders. Among the reasons that fathers home was not considered as a possible placement for J.C. were: (1) fathers neglect in permitting J.C. to repeatedly run away from home; (2) fathers anger management issues; (3) fathers girlfriends refusal to submit to Livescan; and (4) the absence of smoke detectors in fathers home. Thus, even if the domestic violence findings involving father had not been sustained, fathers home would not have been considered for placement.

Nor would a finding in favor of father affect the dispositional orders. Dispositional orders may be directed to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary. ( 362, subd. (c).) Regardless of whether jurisdiction is based on findings against a certain parent, the juvenile court has the authority to order that parent into counseling and parent education. Thus, even if the domestic violence allegation involving father had been dismissed, the court was entitled to order father to complete programs to help ensure the safety of J.C. As the court explained, the court felt that it was problematic that father chose not to deal with mother; that father knew what was going on and was certainly aware of his son running away. The juvenile courts orders that father complete a parenting class and conjoint counseling were appropriate regardless of the truth of the challenged jurisdictional finding.

In sum, we reject fathers argument that we should consider the challenged jurisdictional finding.^[7] Because the other bases for jurisdiction are not challenged, fathers argument is moot.

B. Substantial evidence supports the juvenile courts decision to sustain count b-2

Even if we were to consider fathers argument on its merits, we would reject it. Jurisdiction is proper under section 300, subdivision (b) if the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . . The juvenile court sustained allegations that the history of domestic violence between father and mother endangers the childs emotional health and places the child at risk of emotional harm, damage, and danger. The juvenile courts jurisdictional findings are reviewed under the substantial evidence standard. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.)

Father argues that section 300, subdivision (b) requires a showing that, at the time of the jurisdiction hearing, the child is at substantial risk of serious physical harm in the future. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.) Father argues that such a showing was not made in this matter, because father and mother had not been involved in a relationship in over nine years. Father argues that the incidents of domestic violence between father and mother were incredibly remote in time and unlikely to have had any physical or emotional effect on J.C. Further, father argues, J.C. indicated that he had no recollection of domestic violence occurring between mother and father. In sum, fathers position is that [n]othing in the record supports a nexus between [m]others and [f]athers past domestic violence from nine years ago and J.C.s current behavior problems.

The juvenile court found otherwise. Specifically, the court saw a connection between the violence in the home at an early age and the fact that anger management is one of the minors issues at the tender age of 13. In addition, the previous domestic violence between the parents led to their avoidance of each other. The court clearly felt that it was problematic that the parents chose not to deal with one another.

Substantial evidence supports the juvenile courts determination that a nexus existed between the parents past domestic violence and J.C.s current behavior problems. Father does not dispute that J.C. was exposed to such violence as an infant. Such exposure is harmful to a child in and of itself. (See In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [listing reasons that spousal abuse is detrimental to children of the marriage, even if they are not physically harmed by it or do not witness it].) Further, while J.C. claimed that he did not remember any incident of domestic violence between his mother and father, he did state that his mother had told him that his father used to hit her. Thus, he was aware that such violence had occurred between his parents. The juvenile court reasonably concluded that his parents violent relationship was a cause of J.C.s current anger management problems.

In addition, the evidence showed that because of the past incidents of domestic violence, the parents avoided contact with one another and therefore were unable to adequately supervise the child, who would simply run from one parents home to the other parents home whenever a conflict arose. The juvenile courts findings that these problems led to inadequate supervision of J.C., and placed him at substantial risk of harm, were amply supported by the record.

II. Dispositional orders

A. Applicable law and standard of review

Section 362, subdivision (a) states that the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child. Section 362, subdivision (c) provides that the court may direct any parent to participate in a counseling or education program, including . . . a parent education and parenting program. Such orders must be designed to eliminate those conditions that led to the courts findings that the child is a person described by Section 300. (Ibid.)

The juvenile court has broad discretion to determine what would best serve and protect the childs interest and to fashion a dispositional order in accordance with such discretion. (In re Neil D. (2007) 155 Cal.App.4th 219, 225.) The courts order will not be reversed absent a clear abuse of discretion. (Ibid.) This court may only interfere if we find that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. [Citations.] (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

B. No abuse of discretion occurred

In the current matter, it appears that father was ordered to complete parent education and was ordered into conjoint counseling with J.C. at an appropriate time.^[8] Father challenges these orders, arguing that they are not directed at the abuse which brought J.C. to the attention of the juvenile court.^[9]

We find that the juvenile courts dispositional orders were reasonable. As set forth above, the court found that the domestic violence between mother and father during the first five years of J.C.s life continued to affect J.C., as evidenced by his difficulty with anger management. In addition, father had been neglectful about J.C.s behavior, allowing him to run away from mothers residence and reside with him without informing mother or law enforcement. J.C.s problematic behavior at school was not successfully addressed by either parent because J.C. would run away from one parents home to the other parents home when any conflict arose. Because of the parents domestic violence history, each parent avoided dealing with the childs behavior when he was at the other parents residence.

Under these circumstances, the juvenile court did not abuse its discretion by ordering father to complete parent education and conjoint counseling. These orders were reasonable given the difficulties that both parents were having with the care and supervision of J.C. No abuse of discretion occurred.

DISPOSITION

The jurisdictional and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

DOI TODD

__________________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Welfare & Institutions Code.

^[2] Mothers two other children (J.C.s half-siblings) were also the subjects of the section 300 petition, however, they are not subjects of this appeal. Their fathers, G.G. and E.C., will be discussed as necessary. E.C. will be referred to as stepfather.

^[3] Father resided with his girlfriend and his two younger children, ages 5 and 8 months.

^[4] Counts a-2 (mothers inappropriate discipline of J.C.), b-1 (stepfathers inappropriate physical discipline of J.C.), and b-5 (domestic violence by G.G. against mother) were also sustained. Other petition allegations involving J.C.s siblings were also sustained.

^[5] The written court ordered case plan as to father initially contained orders that father attend domestic violence counseling and individual counseling. However, as DCFS points out, those orders appear to have been stricken, leaving only the orders that he complete parent education and conjoint counseling with J.C. The reporters transcript confirms that father was only ordered to complete parent education and conjoint counseling.

^[6] Father also cites In re Joshua C. (1994) 24 Cal.App.4th 1544. However, this case is inapplicable. In Joshua C., allegations that the father had sexually molested his daughter, thus placing his son at risk of harm, were sustained. The juvenile court then awarded sole custody to the mother, restricted the fathers visitation, and terminated jurisdiction. Despite the termination of the dependency proceedings, the Court of Appeal determined that the fathers appeal was not moot because it would undermine the courts initial jurisdictional finding. Here, in contrast, because allegations were sustained against mother, the courts initial jurisdictional finding would not be undermined by a determination that substantial evidence did not support the findings involving father.

^[7] Fathers concerns that dependency proceedings might someday be initiated on behalf of his two other children, with whom he currently resides, are speculative and remote. This argument does not warrant a variance from established law providing that a juvenile courts finding of jurisdiction may be affirmed on any valid ground.

^[8] As explained in the statement of the case and facts section of this opinion, father demonstrates some confusion as to the precise orders of the court. The court ordered disposition case plan, signed and dated March 5, 2009, appeared to indicate that the court had ordered father to complete domestic violence counseling, parent education, individual counseling, and conjoint counseling. However, upon closer observation, wavy lines striking the check marks in the boxes for domestic violence counseling and individual counseling correct that order to conform with the reporters transcript from the dispositional hearing, wherein father was ordered to complete only parent education and conjoint counseling with J.C.

^[9] DCFS argues that father forfeited this argument by failing to object in the juvenile court. Father argues that any such objection would have been futile. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1001.) In addition, father requests that we exercise our discretion to address the merits of this argument. (In re Stuart S. (2002) 104 Cal.App.4th 203, 206.) The juvenile court had already rejected fathers argument that the jurisdictional findings involving father were not supported by the evidence. In view of this ruling, a challenge to the dispositional orders would have been futile. We therefore conclude that the issue is not forfeited on appeal.