In re J.W.
Filed 6/19/13 In re J.W. CA2/8
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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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re J.W., et al., Persons
Coming Under the Juvenile Court Law.
B245568
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.W. et al.,
Defendants and Appellants.
(Los Angeles
County
Super. Ct.
No. CK89963)
APPEAL
from an order of the Superior Court
of
County.
Valerie Skeba, Judge.
Affirmed.
Jack A. Love,
under appointment by the Court of Appeal, for Plaintiff and Appellant, R.W.
Julie E. Braden,
under appointment by the Court of Appeal, for Plaintiff and Appellant, M.W.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and Kim
Nemoy, Deputy County Counsel, for Defendant and Respondent.
__________________________
R.W.
(father) and M.W. (mother) appeal from the order adjudicating their sons, J.W.
and C.W., dependent children pursuant to Welfare and Institutions Code
section 300, subdivisions (a), (b) and (j).
findings were not supported by substantial
evidence. We affirm.
FACTUAL AND
PROCDURAL BACKGROUND
Viewed in
accordance with the usual rules of appeal from a dependency jurisdiction order
(In re Marquis H. (2013)
212 Cal.App.4th 718, 726-727 (Marquis
H.)), in December 2011, 14-year-old J.W. and 4-year-old C.W. lived with
mother and father in Palmdale. On
Sunday, December 4, mother left town on a business trip. The next evening, father and J.W. argued over
the fact that J.W. had dyed his hair black.
J.W. sustained a bloody nose and swollen lip after father hit J.W. in
the face multiple times; father also shoved a bar of soap into J.W.’s mouth
which made J.W.’s mouth and lips burn; J.W. wore braces and either the blows to
his face or the bar of soap caused lacerations to the inside of J.W.’s cheek;
when J.W. tried to run outside for help, father grabbed him by the hair and
pulled him back into the house. J.W.
eventually escaped to a neighbor’s home.
That neighbor brought J.W. to Julie Kilpatrick’s home because the
neighbor believed Kilpatrick, an employee of the Department of Public Social
Services, would know what to do.
Kilpatrick’s niece, Katheryn, was also present and took pictures of
J.W.’s injuries. J.W. was hysterical
when he arrived and begged Kilpatrick not to send him home because he was
afraid of what father would do to him.
Kilpatrick agreed to allow J.W. to stay until his mother returned. Over the course of the next day, J.W.
recounted to Kilpatrick and Katheryn father’s ongoing physical abuse of J.W.
and domestic violence against mother. By
Wednesday morning, J.W. was calmer but still afraid to go home and no longer
convinced that mother could protect him.
Kilpatrick called the Department of Children and Family Services (DCFS)
hotline to ask what to do. DCFS told
Kilpatrick to keep J.W. in protective custody and someone would get back to
her. DCFS began an investigation.
DCFS by that evening, she called the sheriff’s department to ask what to
do. A sheriff’s deputy arrived at
Kilpatrick’s home about half an hour later.
Without taking Kilpatrick’s statement or looking at the pictures of
J.W.’s injuries, the officer told J.W. that he had to go home – either
willingly or in handcuffs. At Katheryn’s
urging, J.W. agreed to go with the officer but as he was being taken him away,
he called out to Kilpatrick, “Please don’t let them take me home. Please help me.â€
J.W. was transported to the
sheriff’s station where social worker Tara Anderson was asked to watch him
until mother arrived. J.W. was crying as
he described to Anderson the altercation with father on Monday evening. J.W. told Anderson that he was afraid of father. He said, “My dad gets so mad he wants to hit someone, so he
punches the walls. He punched a hole in
the cupboard in the kitchen and put a picture over it to hide the hole.†J.W. told Anderson that mother and father argue
frequently. In a recent incident
triggered by the mortgage not being paid because, J.W. said, father used the
money to buy marijuana and drug paraphernalia, father yelled and screamed and
pushed and shoved mother; mother told J.W. to call the police but J.W. was too
afraid of father’s threats to make the call; father told mother to get out of
the house and threw her clothes in the front yard. J.W. also told Anderson that father
was growing marijuana in the house, smoked marijuana in the presence of both
children, left drug paraphernalia lying around the house and spent all of the
family money on marijuana.
When mother
arrived at the sheriff’s station that evening, she said that J.W. was being
reprimanded for leaving home and dying his hair black; as she was leaving for
her trip, father took away J.W.’s computer and cell phone; during an argument
father “smacked J.W. on the mouth.â€
Mother denied any domestic violence but when J.W. urged her to tell the
truth, mother said, “The cops haven’t been to our house in over a year. The yelling and fighting seem normal to
me. The last incident was about two
weeks ago when I told my son to call the police. . . . .†Mother became so upset during the interview
that she hyperventilated and threw-up into a trash can. Eventually, mother admitted arguing with
father over money; every few weeks mother leaves the home because of arguments
with father; on these occasions she leaves both children with father, or takes
C.W. and leaves J.W. Mother said that
father has a license to grow marijuana and was growing it at home; she did not
know how many plants he had. Mother
reported that father drinks “about six beers once a week and smokes
marijuana.†In a telephone interview
with the social worker that night, father denied all of the allegations; he admitted
slapping J.W. but claimed J.W. went into the bathroom and caused his own nose
to bleed. Father threatened to sue the
social worker for “filling [J.W.’s] head with false accusations.†After father refused to leave the family home
for more than one night, mother agreed to move into a motel with the children
and seek a restraining order against father the next day. The social worker helped mother and the
children check into a motel at about 2:00 a.m.
At about
noon the next day, social worker Martirosyan reported to Anderson that mother
had checked out of the motel and returned home with the children. Anderson called mother, who recanted her
statements of the night before. Mother
said J.W. was no longer afraid of father and that she was not going to obtain a
restraining order against father.
When social worker Anderson
contacted the sheriff’s department to arrange for a deputy to accompany her to
the home to interview J.W., she was told that a deputy had already interviewed
the family and determined there was no evidence of physical abuse or domestic
violence. Therefore, the sheriff’s
department would not assist DCFS in substantiating the charges. Although the sheriff’s department advised
against detaining the children, DCFS believed detention was warranted by J.W.’s
and mother’s statements to Anderson, as well as sworn affidavits executed by
witnesses Kilpatrick and Katheryn. DCFS
obtained a removal warrant for J.W. and C.W. on December 10. The deputy who accompanied the social worker
to execute the warrant that day said she and her partner would stand by, but
would not assist in any way. Ultimately,
the warrant could not be executed because no one answered the door that day, or
the next two days. When Anderson gave
mother and father notice of a December 19 hearing on a Detain at Large
Petition, a Protective Custody Warrant and a Search Warrant to remove the
children, they agreed to make the children available. The children were detained that night and placed
in a foster home. Over DCFS objection,
the dependency court released the children to mother and gave father monitored
visits.
According to a January 2012 Initial
Case Plan, DCFS was then “inclined to believe that the situation which occurred
on [December 5, 2011] was excessive; however, [comparison of photographs taken
of J.W. that day and his yearbook photo] unveils interesting details which the
Department finds imperative to consider.â€
DCFS concluded that father may have slapped J.W. that day, but not hard
enough to leave a mark and that J.W. may have been under the influence of some
substance. Mother and father signed a
section 301 Voluntary Case Plan pursuant to which father agreed to
complete an anger management program and to submit to drug and alcohol testing.
consistently drug test. On June 26, he
told the social worker that he was not going to drug test. At a team meeting that day, mother and father
agreed to continue with the section 301 plan. But father was a no-show at the next drug
test.
On July 12,
2012, DCFS filed a petition alleging the children were persons described by
section 300, subdivisions (a), (b) and (j). Paragraphs a-1, b-1 and j-1of the petition alleged
father physically abused J.W. on multiple occasions; paragraphs a-2 and b-2
alleged mother and father had a history of domestic violence; paragraph b-3
alleged that father had a history of alcohol abuse, including a conviction for
driving under the influence; paragraph b-4 alleged that mother and father were
growing marijuana plants in the family home and that drug paraphernalia was
accessible to the children. Finding DCFS
had established a prima facie case that the children came within the statute, the
dependency court set the matter for a jurisdiction hearing, pending which the
children were released to the parents.
Interviewed
prior to the jurisdictional hearing, mother and father denied all of the
allegations. Father accused Kilpatrick
(the neighbor) of conspiring with social worker Anderson to make false
accusations against father. J.W.
recanted his prior accusations of physical abuse and domestic violence. Five-year old C.W. told the social worker
that he observed his parents hitting each other in the face.
By the time of the continued
jurisdictional hearings on October 2 and 16, J.W. was 16 years old. Supervising social worker Virginia Clanton
testified because the social worker who wrote the report was on maternity leave;
the only personal knowledge Clanton had was from reading the reports. Based on those reports, Clanton testified
that DCFS was concerned that the children had witnessed multiple incidents of
domestic violence, J.W. was afraid of father, and father had a substance abuse problem. Clanton believed J.W. would be at risk of
abuse if DCFS did not continue to monitor the family because of the parents’
refusal to cooperate with the Voluntary Case Plan.
Father testified that he never hit
J.W. or engaged in any domestic violence with mother. About six weeks before the hearing, father
and mother began counseling sessions with a pastor; those sessions had helped
father be a better husband. Things with J.W.
were going well and there had been no major problems since December 2011. Father previously used edible marijuana to
treat his anxiety and gastrointestinal problems but had switched to
prescription medications. Father denied
ever growing marijuana in the house.
Mother testified that father never
physically harmed her or J.W. After she
lost her job in September 2009, she and father argued about money but those
arguments never rose to physical altercations.
Mother speculated that C.W. was confusing a cartoon with real life when
he told the social worker that he had seen mother and father hit each
other. Mother did not believe father had
any anger management issues. J.W. never
expressed to mother any fear of father.
Mother never told the social worker that father had marijuana plants in
his home office. Mother testified that
one Saturday a month, father drinks four or five beers. Father’s alcohol use does not play any role
in their arguments.
The dependency court found mother’s
and father’s testimony “to be completely unbelievable and not credible.†In the court’s view, father had “not
benefited very much, if anything, from counseling.†It found no good cause for father to have
missed drug tests in May, June and July of 2012 and that father “has a very
significant substance abuse history with alcohol and marijuana, and I believe
that contributes significantly to his anger issues.†The court credited C.W.’s statement that
mother and father hit each other. It
also found persuasive Kilpatrick’s affidavit recounting what occurred when J.W.
arrived at her home after the altercation with father on December 5, 2011. The court concluded that, although the abuse
occurred almost a year ago, “father’s untreated substance abuse, his lack of
insight and progress in counseling, mother’s denial of everything, of anything
being wrong, I think creates a situation where this will likely continue not
just to [J.W.] but perhaps to [C.W.]. . . . . [¶]
. . . I think the parents’ way of addressing this situation is
to minimize and deny. And for these
reasons, I think this behavior that was fairly significant when it came in last
year will continue into the present.â€
Declaring the children dependents pursuant to section 300,
subdivisions (a), (b) and (j), the dependency court sustained the following
allegations:
Paragraphs a-1, b-1, j-1
“On [December 5, 2011], [father] physically
abused [J.W.] by striking [J.W.’s] face with the father’s hands, inflicting a
bleeding laceration to the child’s nose and swelling to the child’s lip and
face. The father placed a bar of soap in
[J.W.’]s mouth, causing pain and abrasions to the child’s mouth and lips. The father grabbed [J.W.’s] hair. On prior occasions, the father struck
[J.W.]. Such physical abuse was
excessive and caused [J.W.] unreasonable pain and suffering. [J.W.] is afraid of the father and does not
wish to reside with the father due to the father’s physical abuse of the
child. [Mother] failed to protect the
[J.W.] in that [mother] knew of the father’s physical abuse of [J.W.] and
allowed the father to reside in the children’s home and have unlimited access
to [J.W.]. Remedial services have failed
to resolve the family problems in that father failed to regularly participate
in Child Abuse Prevention Counseling. [Mother]
failed to participate in Family Preservation Services In-Home Counseling. Such physical abuse of the child by the
father, the mother’s failure to protect the child and the parents’ failure to
comply with [the section 301] contract ordered by the Juvenile Court, endangers
[J.W.’s] physical health and safety and places [J.W.], and [C.W.], at risk of
physical harm, damage, danger, physical abuse and failure to protect.â€
Paragraphs a-2, b-2
“[Mother and father] have a history of
engaging in violent altercations. In
November 2011 and on prior occasions, the father pushed and grabbed the
mother. On prior occasions, the father
struck the mother with the father’s hands.
The father struck the wall of the child’s home with the father’s fists,
causing holes in the walls of the children’s home. The mother failed to protect the children in
that the mother allowed the father to reside in the children’s home and have
unlimited access to the child. Remedial
services have failed to resolve the family problems in that father failed to
participate in Domestic Violence Counseling to address Anger Management. The mother failed to participate in Family
Preservation Services In-Home Counseling.
Such violent conduct by the father against the mother, the mother’s failure
to protect the children and the parents’ failure to comply with [the section
301] contract ordered by the Juvenile Court, endangers the children’s physical
health and safety and places the children at risk of physical harm, damage,
danger, physical abuse and failure to protect.â€
Paragraph b-3
“[Father] has a history of substance abuse
including alcohol, and is a current abuser of marijuana, which renders the
father unable to provide regular care and supervision of the children. On numerous occasions, the father possessed,
used and was under the influence of marijuana while the children were in
father’s care and supervision. The
father has a criminal history of a conviction of Driving Under the Influence of
Alcohol. [Mother] knew of the father’s
substance abuse and failed to protect the children in that mother allowed the
father to reside in the children’s home and have unlimited access to the
children. Remedial services have failed
to resolve the family problems in that father failed to participate in a
substance abuse rehabilitation program and random drug testing. The mother failed to participate in Family
Preservation Services In-Home Counseling.
Such substance abuse by the father, the mother’s failure to protect the
children and the parents’ failure to comply with [the section 301] contract
ordered by the Juvenile Court, endangers the children’s physical health and
safety and places the children at risk of physical harm, damage, danger,
physical abuse and failure to protect.â€
Mother and father timely appealed.
DISCUSSION
Standard
of Review
“ ‘We
review the entire record to determine whether substantial evidence supports the
court’s finding. We resolve all
conflicts, and draw all reasonable inferences in support of the findings. “We do not reweigh the evidence, evaluate the
credibility of witnesses or resolve evidentiary conflicts. The appellant has the burden to demonstrate
there is no evidence of a sufficiently substantial nature to support the
findings or orders.†’ [¶] ‘ “Substantial evidence does not mean
any evidence; it must be ‘ “ ‘substantial’ proof of the essentials
which the law requires.†’ ‘To be
sufficient to sustain a juvenile dependency petition[,] the evidence must be
“ ‘reasonable, credible, and of solid value’ †such that the court
reasonably could find the child to be a dependent of the court by clear and
convincing evidence.’ A mere ‘scintilla’
of evidence is not enough.†’ †(
212 Cal.App.4th at pp. 726-727, citations omitted.)
There
Was Substantial Evidence of “Serious Physical Harmâ€
Both
parents challenge the sufficiency of the evidence to support the jurisdictional
finding under section 300, subdivisions (a) and (b). The gist of their arguments is that the
evidence that father engaged in a physical altercation with J.W. on December 5
was not believable and, even if believed, the conduct did not constitute the
requisite “serious physical harm,†nor was there evidence it was likely to
reoccur. We disagree.
Subdivision (a) applies when the
“child has suffered, or there is a substantial risk that the child will suffer,
serious physical harm inflicted nonaccidentally upon the child by the child’s
parent or guardian. For the purposes of
this subdivision, a court may find there is a substantial risk of serious
future injury based on the manner in which a less serious injury was
inflicted . . . . â€
A child need not be seriously injured before the court may take
dependency jurisdiction under section 300, subdivision (a). (In re
N.M. (2011) 197 Cal.App.4th 159, 165.)
In N.M., evidence that the father hit the child with a broom causing marks
on her ribs and hands on one occasion, hit her with a pipe causing marks on her
leg on a second occasion, kicked her and hit her on the hand causing bleeding
on a third occasion, and slapped her on the face with an open hand on a fourth
occasion, was sufficient to establish serious physical harm within the meaning
of that section.
Subdivision (b) applies when 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 willful or
negligent failure of the child’s parent or guardian to adequately supervise or
protect the child from the conduct of the custodian with whom the child has
been left . . . . The child
shall continue to be a dependent child pursuant to this subdivision only so
long as is necessary to protect the child from risk of suffering serious
physical harm or illness.†To establish
jurisdiction under section 300, subdivision (b), the department must prove (1) neglectful
conduct by the parent in one of the specified forms; (2) causation; and
(3) serious physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1259.) Like subdivision (a), subdivision (b) of
section 300 is satisfied by a showing of serious physical abuse. (In re
J.K. (2009) 174 Cal.App.4th 1426, 1434 (J.K.).)
Kilpatrick’s and Katheryn’s
accounts of J.W.’s appearance, statements and behavior during the time he spent
at Kilpatrick’s home from December 5 through 7, and social worker Anderson’s
account of what J.W. and mother told her while at the sheriff’s station on
December 7, constitute substantial evidence that father engaged in the conduct
alleged in paragraphs a-1, b-1 and j-1 of the petition, and that mother knew of
father’s conduct but failed to protect J.W. from it. This is so notwithstanding the fact that
mother and J.W. later recanted. That
father’s conduct caused a bleeding laceration to J.W.’s nose, swelling to his
lips and face, and abrasions to his
mouth and lips is sufficient to establish “serious physical harm†under
both subdivisions (a) and (b). That, as
mother argues, the abuse and injuries suffered by the child in
were more severe than that suffered by J.W. does not establish the absence of
serious harm here.
title="">[5]
Whether a single prior incident of serious physical
harm is sufficient to support jurisdiction without a separate showing of a risk
of future harm is subject to some debate.
In J.K., supra, 174 Cal.App.4th
at pages 1434, 1436, the court held that a single prior incident of
serious physical harm is sufficient to support initial jurisdiction under
subdivisions (a) and (b) without a separate showing of a substantial risk of
future harm. (See also
165 Cal.App.4th 1626, 1644 [allegation of prior serious harm inflicted by
mother was sufficient, alone, to support subdivision (a) jurisdiction].) The court in In re J.N. (2010) 181 Cal.App.4th 1010, disagreed with
incident is not sufficient to support subdivision (b) jurisdiction. We need not resolve the debate because the
court found and the evidence was sufficient to establish a substantial risk of
future serious physical harm. A finding
that children are at substantial risk of being abused in the future can be
based on evidence that the parents minimize and/or fail to acknowledge the harm
they have already caused their children.
(In re Carlos T. (2009)
174 Cal.App.4th 795, 806.) Here,
the mother and father have at best minimized, and at worst altogether denied,
father’s physical abuse of J.W. For this
reason, the dependency court reasonably found J.W. was at substantial risk of
future abuse.
Subdivision
(j) applies when the “child’s sibling has been abused or neglected, as defined
in subdivision (a) [or] (b) . . . .†Our conclusion that the evidence supports
jurisdiction over J.W. under
subdivisions (a) and (b) is sufficient to establish jurisdiction over
C.W. under subdivision (j).
As a consequence of our conclusion
that the evidence supports jurisdiction over J.W. and C.W. under subdivisions
(a), (b) and (j) based on physical abuse of J.W., we need not reach the
question of whether the evidence supports the remaining allegations of domestic
violence and substance abuse because we may affirm a jurisdictional ruling if
the evidence supports any of the counts concerning the child. (In re
Alexis E. (2009) 171 Cal.App.4th 438, 451; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875–877;
14 Cal.App.4th 1037, 1045.) We
nevertheless note that, as with the allegations of physical abuse, J.W.’s
statements to Kilpatrick and Anderson, mother’s statements to Anderson, C.W.’s
statements to the social workers and other evidence constitute sufficient
evidence of ongoing domestic violence and substance abuse by father, from which
mother failed to protect the children, to support dependency jurisdiction under
subdivisions (a), (b) and (j) of section 300.
The
jurisdictional order is affirmed.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
GRIMES,
J.
future undesignated statutory references are to the Welfare and Institutions
Code.
response to Kilpatrick’s call, social worker Hayk Martirosyan went to the home at
about 3:00 p.m. on December 7.
Father denied the allegations and would not allow Martirosyan into the
house. While Martirosyan waited outside,
father went into the house. Father came
back outside and informed Martirosyan that a deputy would pick up J.W. and
transport him to the police station where mother would meet J.W. and bring him
home. Martirosyan said she would return
the next day to interview the family.
