In re Christopher P.



















Filed 1/8/13 In re
Christopher P. CA2/1







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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




>

In re CHRISTOPHER P. et al., Persons Coming Under the Juvenile Court Law.	B240216 (Los Angeles County Super. Ct. No. CK90219)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GUADALUPE G., Defendant and Appellant.

APPEAL from orders of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Marguerite D.
Downing, Judge. Affirmed.

Nicole Williams,
under appointment by the Court of Appeal, for Defendant and Appellant.

John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jessica S. Mitchell, Associate County Counsel, for Plaintiff and Respondent.

__________________________

Guadalupe G. (Mother)
appeals from the December 28, 2011 and January 27, 2012
jurisdictional and dispositional orders of the juvenile court adjudging minors
Christopher P. and Richard P. dependents of the court pursuant to Welfare and
Institutions Code sections 300, subdivisions (a) (serious bodily injury), (b)
(failure to protect), and (j) (abuse of sibling).href="#_ftn1" name="_ftnref1" title="">[1] Mother challenges the sufficiency of the
evidence to support the court’s jurisdictional findings and argues that the
dispositional orders should be reversed or modified. We conclude the jurisdictional findings were
supported by the evidence and the court did not abuse its discretion in making
the dispositional orders. We affirm the
orders of the court.

>BACKGROUND

On October 6,
2011, the Department of
Children and Family Services (DCFS) filed a petition on behalf of Christina
J., born in 1995, Christopher, born in 2005, and Richard, born in 2007. On November 9, 2011, that petition was
dismissed and DCFS filed a first amended petition pursuant to section 300,
subdivisions (a) and (b), on behalf of Christina and pursuant to section 300,
subdivisions (a), (b), and (j) on behalf of Christopher and Richard (the
petition). As of January 27, 2012, Christina’s whereabouts
were unknown. Her dispositional hearing
was continued and is not the subject of this appeal.

As sustained with respect to Christopher and Richard,
the petition alleged under section 300, subdivision (a) that on September 30, 2011, Mother physically abused
Christina by striking her face and throwing a cup at her and that such physical
abuse was excessive and caused Christina unreasonable pain and suffering. Such physical abuse by Mother endangers
Christina and creates a detrimental home environment, placing her and
Christopher and Richard at risk of harm.
As sustained with respect to Christopher and Richard, paragraph b-2 of
the petition alleged under section 300, subdivision (b) that Mother is unable
to provide appropriate parental care and supervision of Christina due to
Christina’s chronic runaway behavior. As
sustained with respect to Christopher and Richard, the petition alleged under
section 300, subdivision (j) that on September
30, 2011, Mother physically abused Christina by striking her face and
throwing a cup at her and that such physical abuse was excessive and caused
Christina unreasonable pain and suffering.
As dismissed with respect to Christopher and Richard, paragraph b-1
alleged under section 300, subdivision (b) that on September 30, 2011, Mother physically abused
Christina by striking her face and throwing a cup at her. As dismissed with respect to Christopher and
Richard, paragraph b-3 alleged under section 300, subdivision (b) that Mother
has a history of mental and emotional problems, including a diagnosis of
anxiety; and that Mother failed to take her prescribed medication and is
extremely hyper-vigilant and anxious, which impairs her ability to care for
Christopher and Richard.

With respect to Christina, section 300, subdivision
(a) of the petition alleged that on September 30, 2011, Mother physically
abused Christina by striking her face and throwing a cup at her and that such
physical abuse was excessive and caused Christina unreasonable pain and
suffering. Such physical abuse by Mother
endangers Christina and creates a detrimental home environment, placing her and
Christopher and Richard at risk of harm.
With respect to Christina, paragraph b-2 of the petition alleged under
section 300, subdivision (b) that Mother is unable to provide appropriate
parental care and supervision of Christina due to Christina’s chronic runaway
behavior. As stated, Christina’s
adjudication hearing was continued.

The events leading up to the filing of the petition
are as follows. On August 16, 2011, DCFS received a referral
that Mother sold methamphetamine out of the home and used drugs with Christina;
Mother left drug paraphernalia on the floor where Christopher and Richard play;
and Mother and Christopher and Richard live in a one-room garage with no running
water. Mother told DCFS she had used
cocaine only once, two to three months previously, and denied selling drugs or
smoking marijuana or methamphetamine.
Mother lived with Christina, Christopher, Richard, and Mother’s
boyfriend, Carlos R.

Father expressed concern to DCFS about Mother’s and
the children’s living conditions, Christopher’s and Richard’s lack of clean
clothing, and Mother’s lack of supervision of Christopher and Richard. Sometimes when Father picked up Christopher
and Richard they were playing unsupervised in the backyard which was covered
with “‘junk.’” When Father bought
Christopher and Richard new clothes, they would return to his house wearing
dirty, old clothes, so he started having them leave their new clothes at his
house. Father said Christopher and
Richard visited him on weekends and stayed with him a few days a week during
summer and holidays. Father believed
Mother’s current boyfriend was in a gang and used drugs. Father did not believe Christopher and
Richard were safe with Mother. Father
managed a pizza restaurant and was stable.
He wanted Christopher and Richard to live with him. Father told DCSF that he did not give
Christopher and Richard money because he was afraid Christina would take it
from Christopher and Richard and use it for drugs. He wanted DCFS to supervise Christopher and
Richard to ensure their safety.
Christina’s father, E.J., lived in Mexico and was interviewed over the
telephone. He reported concerns about
Mother’s parenting of Christina because Christina’s behavior has been
“escalating” and Mother told him Christina was using drugs. On August 25, 2011, DCFS spoke to Christina,
who reported she had dropped out of school.
At some point, Christina was put on house arrest.

On
September 28, 2011, DCFS received a referral that Mother had hit Richard
with an extension cord; she was allowing Christina to have a sexual
relationship with a 35-year-old male who was sleeping with her in the living
room; and she allowed Christina to smoke marijuana in front of Christopher and
Richard. DCFS stated Mother had reported
escalating behaviors on the part of the Christina and “[M]other did physically
discipline [Christina], she has never used any physical discipline toward
[Christopher and Richard].” DCFS stated
Christopher and Richard did not disclose physical abuse; there was no
indication of any abuse toward Christopher and Richard; and DCFS would consult
with a medical team to determine if a forensic physical abuse examination for
Christopher and Richard were warranted.

On October 3, 2011, Mother called DCFS to report she
had slapped Christina in the face two or three times when Christina had cursed
and yelled at her after Mother tried to make her stop smoking a cigarette. Christina then “‘ jumped on’” Mother, pushed
her, and continued to yell at her.
Mother threw a plastic cup at Christina.
Mother reported Christina refused to attend the California Youth Drug
Treatment Program and Christina’s behavior had “escalated” after she had been
put on house arrest. Mother asked DCFS
to take Christina for treatment. She
reported she needed help and Christina had been running away and not going to
school for the past three years. Mother
reported she was pregnant and Christina’s behavior was adversely affecting her
health. DCFS arrived at Mother’s home to
take Christina into placement. Christina
told DCFS that Mother had slapped her after Christina had cursed at her for
taking away her cigarette. Christina was
observed to have multiple tattoos on her hands, wrists, ankles, shoulders and
face. Christina refused to go with DCFS
but instead ran away from home.

On October 12, 2011, Christina was found with David
R., who said he was going to take her to Mexico. Christina was placed at a juvenile detention
center. On December 17, 2011, Christina
ran away with a man, who maternal aunt believed was Christina’s 40-year-old
gang-affiliated boyfriend.

On October 26, 2011, Mother appeared “hyper-vigilant,
anxious and nervous.” Mother seemed on
the verge of a nervous breakdown. She
said she had trouble sleeping, was not taking her anxiety medication, and as a
result of oversleeping had not taken Christopher to school. During DCFS’s visit, first Mother’s landlord,
and then a woman, came to the house to request documentation regarding a
vehicle owned by the landlord. The woman
and Mother raised their voices to each other as the woman threatened Mother and
told her DCFS would take her children away because there was no running water
in the home. Mother said she had stopped
paying rent when the landlord disconnected the water to her home, so she had to
get water from the next door neighbor’s water hose. DCFS asked Mother to stay with a relative
because her home was not safe for Christopher and Richard. At a subsequent team decision meeting, Mother
reported the police had found a bag of marijuana in her car that she believed
belonged to Christina. Subsequently,
Mother reported that her boyfriend had been deported, she was being harassed by
her landlord, and she had had a miscarriage.

Commencing on October 27, 2011, Christopher and
Richard stayed with Father. DCFS
reported on December 5, 2011, that Father and his wife were meeting
Christopher’s and Richard’s needs.
Christopher was enrolled in school and Richard was on the waiting list
for a head start program. A last minute
information filed on November 9, 2011, indicated Mother was arrested on
November 11, 2011, and was being charged with a felony.

On
December 28, 2011, the juvenile court issued a protective custody warrant for
Christina. The court continued the
adjudication with respect to Christina and excused her counsel, who left the
hearing. The court then proceeded with
respect to Christopher and Richard.
After hearing argument from DCFS, Mother’s, and Christopher’s and Richard’s
counsel, the court stated its tentative “was to dismiss all of the counts but
the b-2, but since we’re not proceeding necessarily, I would just find the j‑1
as well.” It then stated, “Well, the b-2
is only as to Christina, so that’s going to be in abeyance. So it would be sustained j-1.” The court
dismissed the allegations of paragraphs “b-1” and “b-3,” alleged under section
300, subdivision (b), and held “in abeyance b-2.” The court concluded, “The court is going to
sustain j-1, based upon that, the court finds that Christopher and Richard are
persons described by Welfare and Institutions Code 300.”

On
January 27, 2012, because Christina was still missing, the juvenile court
continued Christina’s adjudication and disposition hearing to March 1, 2012. Mother was in INS custody. After hearing argument as to the disposition
of Christopher and Richard, the court stated, “Richard and Christopher are
hereby declared dependents of the court under Welfare and Institutions Code 300
(b). [¶]
The court finds by clear and convincing evidence pursuant to [section]
361 that there is a substantial danger if the children were to return home to
their physical health, safety, protection, physical and emotional well being,
and that . . . there is no reasonable means by which they may be
protected without removing them from . . . their mother’s physical custody.” The court ordered Christopher and Richard
placed with Father, sole legal and physical custody to Father, and ordered
monitored visitation for Mother on the last Saturday of each month.

The
order entered into the minutes reflects that the juvenile court ordered
monitored visitation for Mother on the last Saturday of each month. The visitation order ordered Mother “to have
monitored visits at least one time per month.”
The January 27, 2012 order entered into the minutes indicates
Christopher and Richard were declared dependents of the juvenile court under
section 300, subdivisions (a), (b), and (j). The petition contained in the
record shows that paragraphs b-1 and b-3 as alleged with respect to Christopher
and Richard under section 300, subdivision (b) were crossed out. The petition contained in the record shows
that allegations with respect to Christopher and Richard under section 300,
subdivisions (a) and (j), and paragraph b-2, as alleged under section 300,
subdivision (b) were not crossed out.

Mother
appealed.

DISCUSSION

A. Substantial evidence supported the finding of
jurisdiction under section 300, subdivision (j)

>1. The
record shows with respect to Christopher and Richard the juvenile court
sustained the section 300, subdivision (a) allegation

Mother
contends that the juvenile court’s order sustaining the section 300,
subdivision (j) allegation was erroneous because none of the allegations
pertaining to Christina had been sustained, other than paragraph b-2, which
concerned Christina being a runaway and did not provide the necessary predicate
support for the section 300, subdivision (j) finding. We disagree and conclude that the juvenile
court sustained the allegations of section 300, subdivision (a).

Section
300, subdivision (j) provides a basis for
juvenile court jurisdiction if “[t]he child’s sibling
has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or
(i), and there is a substantial risk that the child will be abused or
neglected, as defined in those subdivisions.
The court shall consider the circumstances surrounding the abuse or
neglect of the sibling, the age and gender of each child, the nature of the
abuse or neglect of the sibling, the mental condition of the parent or
guardian, and any other factors the court considers probative in determining
whether there is a substantial risk to the child.”

Mother
argues that to sustain the section 300, subdivision (j) allegation the juvenile
court had to sustain the section 300, subdivision (a) or (b) allegation with
respect to Christina. But, she argues,
the juvenile court dismissed those allegations and sustained the allegation of paragraph b-2 alleged under
section 300, subdivision (b) (Christina being a runaway), which cannot support
a finding of jurisdiction under section 300, subdivision (j). We conclude the
record does not bear out Mother’s contentions.
The transcript shows that the court continued the adjudication of the
allegations of section 300, subdivisions (a) and (b) with respect to Christina,
and excused her attorney, who left. After hearing
argument from DCFS, Mother’s counsel, and Christopher’s and Richard’s counsel,
the court stated its tentative “was to dismiss all of the counts but the b‑2,
but since we’re not proceeding necessarily, I would just find the j-1 as
well.” It then stated, “Well, the b-2 is
only as to Christina, so that’s going to be in abeyance. So it would be sustained j-1.” The court
dismissed the allegations of paragraph “b-1” and “b-3,” alleged under section
300, subdivision (b), and held “in abeyance b-2.” The court concluded, “The court is going to
sustain j-1, based upon that, the court finds that Christopher and Richard are
persons described by Welfare and Institutions Code 300.”

According
to the reporter’s transcript, the juvenile court did not dismiss the section
300, subdivision (a) allegation at the December 28, 2011 hearing. Rather, the minute order contained in the
record indicates that Christopher and Richard were declared dependents of the
court under section 300, subdivisions (a), (b), and (j). Additionally, the
petition contained in the record shows that on the one hand, the allegations
with respect to Christopher and Richard under section 300, subdivisions (a) and
(j), and paragraph b-2, as alleged under section 300, subdivision (b) were
sustained and on the other hand, the allegations under paragraphs b-1 and b-3
as alleged under section 300, subdivision (b) were dismissed because the latter
were crossed out and the former were not.
(People v. Smith (1983) 33
Cal.3d 596, 599 [conflict in reporter’s transcript and clerk’s transcript not
irreconcilable where objective reading of record supported defendant’s claim
ruling intended to dispose of both murder and manslaughter offenses]; >Roraback v.
Roraback (1940) 38
Cal.App.2d 592, 596 [“if the language of the order be in any degree uncertain,
then reference may be had to the circumstances surrounding, and the court’s
intention in the making of the same”]; In
re Merrick V. (2004) 122 Cal.App.4th 235, 249 [while conflicts between
reporter’s and clerk’s transcripts are generally presumed to be clerical in
nature and are resolved in favor of reporter’s transcript, particular
circumstances may dictate otherwise].)

We conclude that as to Christopher
and Richard, the juvenile court sustained the section 300, subdivision (a)
allegation, which provided the predicate support for the section 300,
subdivision (j) finding.

>2. There was
substantial evidence to support the section 300, subdivision (j) allegation

Mother
argues that even if a separate predicate was not required or the necessary
predicate had been established, there was no href="http://www.fearnotlaw.com/">substantial evidence that there was a
substantial risk that Christopher and Richard would be abused or neglected as
alleged in section 300, subdivision (j) because DCFS reported that Mother had
never used physical discipline toward Christopher and Richard. We disagree.

As
stated, the juvenile court can adjudge a minor a dependent of the court under
section 300, subdivision (j) if the sibling has been
abused as defined in subdivision (a), (b), (d), (e), or (i), and there is a
substantial risk that the child will be abused or neglected, as defined in
those subdivisions. Section 300,
subdivision (j) does not require that there be a substantial risk that the
child be abused in the same way as the sibling, but just that there is “a
substantial risk that the child will be abused or neglected, as defined in
those subdivisions.” (§ 300, subd. (j);
see In re Maria R. (2010) 185
Cal.App.4th 48, 62 [section 300, subdivision (j) adjudication permissible of
child under section 300, subdivisions (a), (b), (d), (e), or (i) whose sibling has
been sexually abused under subdivision (d)].)

Further, section 300, subdivision (j) provides, “The
court shall consider the circumstances surrounding the abuse or neglect of the
sibling, the age and gender of each child, the nature of the abuse or neglect
of the sibling, the mental condition of the parent or guardian, and any other
factors the court considers probative in determining whether there is a
substantial risk to the child.”

The
juvenile court’s jurisdictional finding that the minor is a person described in
section 300 must be supported by a preponderance of the evidence. (§ 355; Cal. Rules of Court, rule
5.684(f).) “‘“When the sufficiency of the evidence to
support a finding or order is challenged on appeal, the reviewing court must
determine if there is any substantial evidence, that is, evidence which is
reasonable, credible, and of solid value to support the conclusion of the trier
of fact. [Citation.] In making this determination, all conflicts
[in the evidence and in reasonable inferences from the evidence] are to be
resolved in favor of the prevailing party, and issues ofname="SDU_533"> fact
and credibility are questions for the trier of fact. [Citation.]”’
[Citation.] While substantial
evidence may consist of inferences, such inferences must rest on the evidence;
inferences that are the result of speculation or conjecture cannot support a
finding. [Citation.]” (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)

The
juvenile court sustained section 300, subdivision (j) with respect to Christopher
and Richard and declared them dependents under section 300,
subdivision(b). Section 300,
subdivision (b) provides a basis for juvenile court jurisdiction if “[t]he
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 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 . . . .”

“A
jurisdictional finding under section 300, subdivision (b) requires: ‘“(1) neglectful conduct by the parent
in 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.” [Citation.]’ [Citations.]
The third element ‘effectively requires a showing that at the time of
the jurisdictional hearing the child is at substantial risk of serious physical
harm in the future (e.g., evidence showing a substantial risk that past
physical harm will reoccur).’
[Citation.]” (>In re James R. (2009) 176 Cal.App.4th
129, 135.)

It is not disputed that Mother slapped Christina in
the face and threw a cup at her. Thus,
while there is no evidence that Mother physically abused Christopher and
Richard, there was evidence that, by physically abusing Christina, Mother
created a detrimental home environment that placed Christopher and Richard at
risk of harm. At the time of the
incidents, Christopher and Richard were of tender years, six and four,
respectively. The escalating incidents between Mother and Christina, the
physical violence visited on Christina by Mother, the drug use by Christina,
Christopher’s and Richard’s lack of clean clothing, and Mother’s lack of
supervision provide sufficient support for the juvenile court’s determination
to adjudge Christopher and Richard dependents under section 300, subdivision
(j).

Accordingly, we conclude that there was substantial
evidence to support the section 300, subdivision (j) allegation.

B. The juvenile court did not abuse its
discretion in ordering monitored visitation for Mother

Mother contends
that the juvenile court’s oral pronouncement, the order entered into the
minutes, and the written visitation order regarding visitation cannot be
reconciled and should be deemed void; and the order of one visit per month is
an abuse of discretion because it is vague and impermissibly delegates
non-ministerial visitation details to Father.
We disagree.

Both the juvenile
court’s oral pronouncement and the order entered into the minutes regarding
visitation ordered monitored visits for Mother on the last Saturday of each
month. The visitation order attached to
the final judgment filed on January 27, 2012, states that “Mother is to have
monitored visits at least one time per month.”
Because the visitation order is more favorable to Mother than the
juvenile court’s oral pronouncement and the order entered into the minutes,
Mother cannot show how she has been harmed, and we decline to void the order.

We also disagree with Mother that the order of at
least one visit per month is an abuse of discretion because it is vague and
impermissibly delegates non-ministerial visitation details to Father. The juvenile court has broad discretion to determine
what would best serve and protect the child’s interest and to fashion a
dispositional order in accordance with this discretion. (In re
Neil D. (2007) 155 Cal.App.4th 219, 225.)
When a minor is adjudged a dependent
child of the court under section 300, section 362, subdivision (a) gives the juvenile court authority to “make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the child, including
medical treatment, subject to further order of the court.”

The
court is not limited to the content of the sustained petition when it considers
what disposition would be best for the child, but may rely on family history
and behavior. (In re Rodger H. (1991) 228 Cal.App.3d 1174, 1183.) Section 358, subdivision (b) provides
that: “Before determining the
appropriate disposition, the court shall receive in evidence the social study
of the child made by the social worker, any study or evaluation made by a child
advocate appointed by the court, and other relevant and material evidence as
may be offered . . . .”

“The juvenile court has broad
discretion to decide what means will best serve the child’s interest and to
fashion a dispositional order accordingly.
(In re Jose M. (1988) 206 Cal.App.3d 1098, 1103–1104.) Its determination will not be reversed absent
a clear abuse of that discretion. (In
re Eric B. (1987) 189 Cal.App.3d 996, 1005.)” (In re
Corey A. (1991) 227 Cal.App.3d 339, 346.) “‘The
appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’” (In re
Stephanie M. (1994) 7 Cal.4th 295, 318–319.)

The order requiring Mother to have monitored visits on
“at least one time per month” was not an abuse of discretion. Christopher and Richard had been visiting
Father every weekend and a few days a week during holidays and the summer. Christopher and Richard were described as lacking clean
clothing and being unsupervised while they played in the backyard, which was
covered with “‘junk.’” Father believed
Mother’s current boyfriend was in a gang and used drugs, and Father did not
believe Christopher and Richard were safe with Mother. Mother had admitted
slapping Christina and throwing a cup at her.
Christina ran away from home and placement and was reported to have
escalated her behavior toward Mother. At
the time of disposition, Mother was charged with a felony and was in the
custody of the INS. Meanwhile, Father
and Father’s wife were meeting Christopher’s and Richard’s needs. Nor does the order give Father
unfettered discretion to determine time, place, and length of the visit.

We
conclude the juvenile court did not abuse its discretion in fashioning the
disposition orders.

DISPOSITION

The juvenile court’s
jurisdiction and disposition orders are affirmed.

NOT TO BE PUBLISHED.



MALLANO,
P. J.

We concur:



ROTHSCHILD, J.



CHANEY, J.