In re Jesus G.
Filed 3/22/13
In re Jesus G. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 THREE
In
re JESUS G. et al., Persons Coming Under the Juvenile Court Law.
B243216
(Los Angeles County
Super. Ct. No. CK82120)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JESUS G. et al.,
Appellants.
APPEAL
from an order of the Superior Court of
County,
Debra Losnick, Referee. Reversed.
Cristina
Gabrielidis, under appointment by the Court of Appeal, for Appellants.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and Sarah
Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
_____________________
Appellants
Jesus G., Jr. (Jesus) and Enrique G. (Enrique) contend that there was no
substantial evidence supporting the juvenile court’s jurisdictional findings
that they were children who fell within the description of Welfare and
Institutions Code section 300, subdivision (b).
FACTUAL AND PROCEDURAL BACKGROUND
G. Family
Jesus
and Enrique were born in May 1997 and March 2001, respectively. They are the sons of Jesus G., Sr. (father)
and Marisol G. (mother), who married in approximately 1994. Mother and father also have a daughter,
Maria, who was born in July 1995.
2. Father’s
Previous Sexual and Physical Abuse of Maria
On August 9, 2010, in an earlier case, the juvenile court sustained the
dependency petition of respondent Los
Angeles County Department of Children and Family Services (the Department)
with respect to Maria, Jesus and Enrique.
The petition alleged that in 2005, when Maria was nine years old, father
sexually abused her. Father allegedly
fondled Maria’s vagina after making her sit on his lap and removing her
pants. He also allegedly removed the
belt of his pants and exposed his penis.
The petition further alleged that father physically abused Maria by grabbing,
choking and pushing her. For purposes of
this appeal, Jesus and Enrique do not dispute that the allegations in the
previous petition were true.
On September 12,
2011, the juvenile court
terminated its jurisdiction over Jesus and Enrique. In so doing, the court issued a “family law
order†granting mother sole custody over the two boys.
visitation. Mother, however, was
precluded from serving as the monitor.
Nothing in the record indicates that the juvenile court terminated its
jurisdiction over Maria.
3. Father
Violates the Family Law Order
On February 21, 2012, the Department received a referral from an anonymous
source claiming that mother had allowed father to visit her home in violation
of the family law order. A Department
social worker made two unannounced visits to mother’s home but did not find
father there. Mother, Jesus and Enrique
denied father was living there or had been there. The social worker, however, found evidence of
father’s presence, including adult male clothing in mother’s bedroom. Further, Maria claimed that father had been
living in the home since December 2011.
On February 29, 2012, Maria secretly recorded a conversation she had with
mother and her two brothers. The
recording indicated that father had been in the home in violation of the family
law order, and that mother, Jesus and Enrique had lied to the Department social
worker regarding the matter. Maria
presented this recording to the Department on March 9, 2012.
4. The
Juvenile Dependency Petition
On March 14, 2012, the Department filed an original section 300
juvenile dependency petition alleging
that the juvenile court had jurisdiction over Jesus and Enrique pursuant to
section 300, subdivision (b).
name="_ftnref3" title="">[3] The petition alleged that by allowing father
to visit Jesus and Enrique in violation of the family law order, mother failed
to protect the children, thereby endangering their “physical health and safetyâ€
and placing them “at risk of physical harm, damage, [and] danger.â€
On
the same day the Department filed the petition, the juvenile court found that
there was a prima facie case for detaining Jesus and Enrique. Both boys were placed in foster care.
visitation.
5. Jesus
and Enrique Are Returned to Mother’s Custody
Jesus
and Enrique were very unhappy about being placed in foster care. Both boys wanted to live with mother and, if
possible, father too. On May 24, 2012, the juvenile court ordered the boys to be returned
to mother’s custody. A Department
report dated June 19, 2012, stated that Jesus and Enrique “are emotionally
stable and are thriving under the care and supervision of their mother.â€
6. July
20, 2012, Hearing and
Order
The
juvenile court held a jurisdictional and dispositional hearing on July 20, 2012. At the
hearing, counsel for Jesus and Enrique argued that a “technical†violation of
the family law order was not sufficient for the juvenile court to assert
jurisdiction over the boys. The juvenile
court disagreed. In its order dated July
20, 2012, the court sustained the section 300, subdivision (b) allegation in
the petition, declared Jesus and Enrique dependent children of the court, and
ordered the Department to provide family maintenance services to mother and
family reunification services to father.
The court also permitted father to have monitored visits with Jesus and
Enrique. Finally, the order provided
that mother may monitor father’s contacts with Jesus and Enrique only outside
of the family home.
Jesus and Enrique filed a timely notice of appeal of the July 20, 2012, order.
name="_ftnref5" title="">[5]
7.
the Appeal Was Taken
We grant the Department’s request
for judicial notice of the November 7, 2012, order of the juvenile court. Under the order, father was permitted to have
unmonitored visits with Jesus and Enrique in public places.
CONTENTIONS
Jesus
and Enrique argue that there was no substantial evidence to support the
juvenile court’s findings that they were children who fell
within the description of section 300, subdivision (b). They also initially argued that there was
insufficient evidence to support the juvenile court’s restriction that all of
father’s visits be monitored. In light
of the November 7, 2012, order,
however, Jesus and Enrique agree that the visitation issue is moot.
DISCUSSION
We
review the juvenile court’s jurisdictional findings under the substantial
evidence test. (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) “The term ‘substantial evidence’ means such
relevant evidence as a reasonable mind would accept as adequate to support a
conclusion; it is evidence which is reasonable in nature, credible, and of
solid value.†(In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) In determining whether there is substantial
evidence, “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
Heather A. (1996) 52 Cal.App.4th 183, 193.)
Under
section 300, subdivision (b), the juvenile court can take jurisdiction over a
child 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, or . . . by the willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical
treatment, or by the ability of the parent or guardian to provide regular care
for the child due to the parent’s or guardian’s mental illness, developmental
disability, or substance abuse.â€
There
are three elements to section 300, subdivision (b) jurisdiction: “(1) neglectful conduct by the parent of
one of the specified forms; (2) causation; and (3) ‘serious physical harm
or illness’ to the child, or a ‘substantial risk’ of such harm or illness.†(In re
Ricardo L. (2003) 109 Cal.App.4th 552, 567; accord In re Savannah
1396.) The juvenile court must determine
whether each of these elements are satisfied at the time of the jurisdictional
hearing, though past conduct can be probative of current conditions. (In re
Janet T. (2001) 93 Cal.App.4th 377, 388.)
In
this case, there is no evidence that mother failed to provide Jesus and Enrique
with adequate food, clothing, shelter, or medical treatment, or with regular
care. There is also no evidence that
Jesus and Enrique have ever suffered serious physical harm or illness as a
result of any act or omission of mother or father, or that the boys were
physically or sexually abused by anyone at anytime. Rather, the alleged “neglectful conduct†of
mother toward Jesus and Enrique was to violate the family law order by allowing
father to visit or live with them without a court-approved monitor. For purposes of this appeal, we must accept
as true Maria’s statements that father lived with mother, Jesus, Enrique and
Maria from December 2011 to mid-March of 2012, in violation of the family law
order.
We
are faced with the following issue: When
the juvenile court conducted the jurisdictional hearing on July 20, 2012, was there
a substantial risk that Jesus and Enrique would suffer serious physical harm or
illness in light of mother’s violation of the family law order from December
2011 to mid-March 2012? We conclude
there was insufficient evidence of such risk.
The
Department argues that evidence of father’s past physical and sexual abuse of
Maria constituted substantial evidence that there was a substantial risk that
Jesus and Enrique would also be physically or sexually abused. Apparently in the previous case the juvenile
court asserted jurisdiction over Jesus and Enrique based on mother’s failure to
protect Maria from father’s abuse.
terminated jurisdiction over the boys.
Thus the Department’s new petition could not be, and was not, based on
mother’s previous failure to protect Maria from physical or sexual abuse. Instead, it was based on mother’s violation
of the family law order. Mother’s
violation of the order was not, however, by itself sufficient evidence that
Jesus and Enrique were at substantial risk of harm. (See In
re Ricardo L., supra, 109
Cal.App.4th at pp. 568-569.)
The
Department contends that Jesus and Enrique are collaterally estopped from
challenging the jurvenile court’s finding that father’s abuse of Maria puts
them at substantial risk of harm. We
disagree.
An
essential element of collateral estoppel
is that the issue decided in the previous suit is “identical†to the issue
sought to be relitigated. (
39 Cal.App.4th 984, 993.) Although
we do not have the record in the previous proceeding before us, it appears the
issue was whether at the time of
jurisdictional hearing in 2010, father’s abuse of Maria put Jesus and
Enrique at risk of harm. The issue here
is whether in July 2012 mother’s
violation of the family law order placed the boys in danger. These issues are not identical. The juvenile court therefore was not
collaterally estopped from finding that it had no jurisdiction over Jesus and
Enrique pursuant to section 300, subdivision (b).
DISPOSITION
The
order dated July 20, 2012, is reversed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN,
P. J.
ALDRICH,
J.
All future statutory references
are to the Welfare and Institutions Code.
A copy of the order is not in
the record. The record also does not
indicate the court’s statutory authority for the order. Presumably the order was issued under section
362.4. (See In re Ryan K. (2012) 207 Cal.App.4th 591, 594, fn. 5 [“Custody and
visitation orders issued under section 362.4 are sometimes referred to as
‘family law’ orders or ‘exit’ ordersâ€].)
