In re M.S.
Filed 1/17/13 In re M.S.
CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
In re M. S., et al., Persons Coming Under the Juvenile Court Law.
B240502
(Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and
Respondent.
v.
MI. S.,
Defendant and
Appellant.
Super. Ct. No. CK91485)
APPEAL from orders of the Superior Court of
County. Terry T.
Truong, Juvenile Court Referee.
Affirmed.
Andre F. F. Toscano, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel
for Plaintiff and Respondent.
Appellant Mi. S. (father)
appeals from the juvenile court’s jurisdictional and dispositional orders
establishing dependency jurisdiction
over his children M. (born December 1998) and Z. (born August 2000) pursuant to
Welfare and Institutions Code section 300, subdivision (b)
and removing them from his custody.
Father contends that because he sent the children to live with their
mother in Georgia before the section 300 petition was filed, there was no
current risk of harm to either child within the meaning of section 300,
subdivision (b) and no valid basis for the juvenile court’s jurisdictional
findings.
There is substantial evidence in the record that the
children were at substantial risk of harm.
We therefore affirm the juvenile court’s orders.
Detention
and section 300 petition
On November 15,
2011, the Department of
Children and Family Services (the Department) received a referral alleging
that father had physically abused M. and emotionally abused Z. and half-sibling
Naomi. The referral further alleged that
father beat Naomi’s mother.
After several unsuccessful attempts to contact the family
at their residence address, the social worker went to the children’s school on December 1, 2011, and interviewed M., who
disclosed a history of physical abuse by father. M. told the social worker that when he gets
into “big trouble,†including getting into trouble at school, father hits or
slaps him in the face or kicks him all over his body. He said the most recent incident occurred
four weeks ago when father kicked him in the buttocks and back. M. said the abuse began when he and Z. moved
from Atlanta to Los Angeles to live with
father. The children had previously
lived with their mother and stepfather in Atlanta. M. reported being physically abused by the
stepfather, who was subsequently arrested for the abuse.
M. further reported that father physically abused Z. as
well. He described an incident that had
occurred in September 2011 when father became upset with Z. and pulled her by
the collar from a top bunk bed and threw her to the floor. M. also disclosed a history of domestic
violence between father and Fonda W. (stepmother), the mother of half-sibling
Naomi. He reported having seen father
physically abuse stepmother at least five times, including slapping and kicking
her. The last altercation between father
and stepmother occurred during the week of November
28, 2011, when father threw food at her. Stepmother and Naomi subsequently moved out
of the home.
The social worker interviewed half-sibling Naomi in a
separate, private interview at the school.
Naomi confirmed that she and stepmother had left father’s home after
father became upset and threw food at stepmother. Naomi said she had witnessed between 10 and
12 instances of domestic violence between father and stepmother. She described one incident during which
father had restrained stepmother by the arms while hitting her. Naomi denied being abused by father but said
father frequently beats M. She believed
M. had been hit at least 10 times during the past year. Naomi stated that father also hit Z. and that
he had pulled Z. from a top bunk bed, thrown her to the floor and kicked her.
The social worker also spoke with stepmother, who
confirmed that she had left father after a recent argument. Stepmother acknowledged incidents of domestic
violence with father, including one incident when father had forcefully held
her down and two separate incidents in which they hit one another. She said the children were not present during
these altercations. Stepmother further
stated that she had seen father physically discipline M. in the past by hitting
him.
Father spoke with the social worker on December 9, 2011, and denied the allegations
of physical abuse. According to father,
the children were abused and neglected while in the care of their mother,
Brenda W. (mother), who had a history with Atlanta Children Services. Mother had asked father to care for the
children for a period of time. Father
acknowledged that he and stepmother had engaged in physical altercations in the
past, but denied that any altercations occurred in the presence of the
children.
On December 30,
2011, the social worker informed father that the Department
wished to offer him and his family a voluntary case plan to address concerns
about father’s disciplinary methods and anger management issues. After father declined the voluntary case
offer, the social worker obtained a warrant to remove the children from his custody. When father was served with the removal
warrant on January 13, 2012, he informed the
social worker that he had sent the children back to Georgia to live with
their mother.
The social worker spoke to mother by telephone on January 17, 2012. Mother confirmed that father had returned the
children to her, stating that he could no longer care for them. When asked about her history with child
protection services in Atlanta, mother stated
that a physical abuse allegation had been sustained against the children’s
stepfather, Leon H. The family had
received services, including individual therapy, anger management, and
parenting classes, and the case was subsequently closed. Leon H. continues to reside in the home. The
social worker also spoke with M. and Z.
Both children stated that they were happy to be returned to mother’s
care.
The Department filed a section 300 petition on behalf of
M. and Z. on January 19, 2012, alleging that
father’s physical abuse of the children and his history of violent altercations
with stepmother placed the children at risk of physical harm. Because the children were residing with their
mother in Georgia at the time the
petition was filed, the Department initially recommended in its February 2012
jurisdiction/disposition report that the section 300 petition be dismissed. The Department subsequently changed its
recommendation and asked the juvenile court to sustain the petition against
father, then terminate the case with a family law order granting mother full
custody of the children and monitored visits for father.
Father was present at the February 27, 2012 adjudication hearing. He denied hitting or kicking M. and accused
the child of fabricating the allegations.
He did admit to “backhand[ing]†M. because of M.’s extreme behavioral
problems. Father also denied pulling Z.
from a bunk bed. He said he had
attempted to discipline Z. and she had jumped off the bunk bed in order to
avoid him.
Father admitted to a history of domestic violence with
stepmother but said that they were reconciling and that he was amenable to
participating in couples counseling.
Father said he had enrolled in parenting classes and was willing to
participate in any services the court deemed necessary.
The juvenile court found the allegations that father had
physically abused M. and had engaged in domestic violence with stepmother in
the children’s presence to be true, noting that father’s testimony to the
contrary was not credible. The court
declared M., Z., and Naomi to be dependents under section 300, subdivision
(b). The court then terminated its
jurisdiction over M. and Z. and entered a family law order granting mother full
legal and physical custody of those children, permitting father monitored
visits until he completed domestic violence counseling, individual counseling
and parenting classes.
name="_ftnref2" title="">[2] Father then filed the instant appeal.
I. Standard of review
We
the juvenile’s court’s jurisdictional and dispositional findings
the substantial evidence standard. (
822, 829 (David M.);
Cal.App.4th 1067, 1078.) Under this
standard, we review the record to determine whether there is any reasonable,
credible, and solid evidence to support the juvenile court’s conclusions,
resolve all conflicts in the evidence, and make all reasonable inferences from
the evidence in support of the court’s orders.
(In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)
order
Section
300, subdivision (b) accords the juvenile court jurisdiction over a child 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 . . . . 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.†(§ 300, subd. (b).)
Father
contends the juvenile court’s jurisdictional findings must be reversed because
there was no current substantial risk of harm to the children within the
meaning of section 300, subdivision (b).
He maintains that a jurisdictional finding under section 300,
subdivision (b) requires a showing that at the time of the jurisdictional
hearing, the child is at substantial risk of serious physical harm in the
future. No such showing could have been
made, father claims, because he had voluntarily relinquished physical custody
over the children by returning them to their mother in Georgia.
The
Department argues that proof of current risk of harm is not required to support
the juvenile court’s exercise of jurisdiction under section 300, subdivision
(b). It maintains that the plain
language of the statute, worded in the disjunctive, allows jurisdiction to be
premised either on injury already suffered or the future risk of such injury.
Courts
are divided on the issue of whether evidence of current risk of abuse or harm
at the time of the jurisdictional hearing is required to support a
jurisdictional finding under section 300, subdivision (b), or whether evidence
of prior serious harm or abuse is sufficient.
(Compare In re Adam D. (2010)
183 Cal.App.4th 1250, 1261 [proof of current risk of harm is not required to
support the initial exercise of dependency jurisdiction under section 300,
subdivision (b)] and In re J.K. (2009)
174 Cal.App.4th 1426, 1435-1436 [use of disjunctive “or†in statutory language
“demonstrates that a showing of prior abuse and harm is sufficient, standing
alone, to establish dependency jurisdiction†under section 300, subdivision
(b)] with In re J.N. (2010) 181
Cal.App.4th 1010, 1023-1025 (J.N.)
[disagreeing with In re J.K. to the
extent it concludes section 300, subdivision (b) authorizes dependency
jurisdiction based upon a single incident resulting in physical harm absent
current risk] and In re Carlos T. (2009)
174 Cal.App.4th 795, 803 [“dependency jurisdiction is not warranted under
[section 300] subdivision (b) if, at the time of the jurisdiction hearing,
there no longer is a substantial risk that the child will suffer harmâ€].)
We
need not weigh in on this issue of statutory interpretation because here there
was substantial evidence the children were at continuing risk of harm. Past harmful conduct is relevant when
determining the current risk of future physical harm to a child (see
831), as is the egregiousness of the prior conduct. (J.N.,
supra, 181 Cal.App.4th at p.
1025.) Here there was evidence that
father physically abused M., not just once, but on multiple occasions by
kicking and hitting him. There was also
evidence that father engaged in multiple incidents of domestic violence with
stepmother in the presence of the children.
Another
relevant factor in evaluating whether a child is at risk because of a parent’s
past conduct is “evidence of the parent’s current understanding of and attitude
toward the past conduct that endangered a child, or participation in
educational programs, or other steps taken, by the parent to address the
problematic conduct in the interim . . . .â€
(J.N., supra, 181 Cal.App.4th
at pp. 1025-1026.) Father’s testimony at
the adjudication hearing reflected little understanding of how his past conduct
had endangered the children. Although
father admitted to “backhand[ing]†M., he claimed that M. had lied when he told
the social worker that father had hit and kicked him.
The
children would have been at continued risk of harm had the juvenile court not
issued the orders that father challenges in this case. Father had physical custody of M. and Z. for
more than a year and a half, despite a family
law order in the State of Georgia according mother sole legal and physical
custody of the children. He physically
abused M. on multiple occasions during this period. Although the children were living with their
mother in Georgia at the time of the combined jurisdictional and dispositional
hearing, nothing would have prevented their return to father’s custody or
unsupervised visits with father during school vacations and holidays. The orders issued by the juvenile court ensured
that any future visits between father and the children would be supervised
until father completed a domestic violence program, parenting classes, and
individual counseling.
Substantial
evidence supports the juvenile court’s jurisdictional and dispositional
findings.
The
orders establishing jurisdiction over M. and Z. and removing them from father’s
custody are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
___________________________,
J.
CHAVEZ
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
DOI TODD
name="_ftn1" title="">
further statutory references are to the Welfare and Institutions Code, unless
stated otherwise.
name="_ftn2" title="">
juvenile court also ordered Naomi removed from father’s custody and placed with
stepmother. Naomi is not a subject of
this appeal.
