Filed 8/15/22 In re L.J. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Reversed.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.

Teresa K.B. Beecham and Catherine E. Rupp, Deputy County Counsel for Plaintiff and Respondent.

The Riverside County Department of Public Social Services (DPSS) intervened when A.W., age two years, was transferred to his father K.W. (not involved in this appeal) for shared custody, with cigarette burns on his arm, which were apparently caused when the child ran into mother’s friend who was holding a cigarette. A.W.’s older half-siblings are L.J. and A.J., mother’s children from a previous relationship with father, K.J., who is not a member of mother’s household and with whom child custody arrangements were not a problem. A petition alleging that father’s children were at risk because of a two-year-old misdemeanor charge of domestic violence and child endangerment, involving a different woman, of which father was not aware because he had never been served with the arrest warrant. At the jurisdiction hearing, father’s counsel argued there was no nexus between a two-year-old misdemeanor and the current situation.

At the jurisdictional hearing, for which father was not present, the court added language to the allegation pertaining to father indicating he had untreated anger issues for which he had not sought treatment and the children were afraid of him, over counsel’s due process objection.[1] The court then made a true finding on the allegation, declared father’s two children dependents, but did not order removal. Father appeals.

On appeal, father challenges the sufficiency of evidence to support the true finding in the absence of a nexus between father’s past conduct with a different party and the current petition. We reverse.

Background

Mother H.F., not a party to this appeal, has three children: two children by father (K.J.), L.J., age 7 at the time of the incident giving rise to the filing of the instant petition, and A.J., age 5. She also has a third child, A.W., age 2, from a relationship with K.W.

On September 20, 2021, DPSS responded to a referral initiated by father K.W. regarding what appeared to be two cigarette burns[2] found on the arms of A.W. when the child was transferred to him for his custody time. Mother was interviewed and explained she and the children were at a friend’s house, and the friend was outside smoking a cigarette when A.W. ran up to give a hug, hitting the cigarette which broke and fell on him. K.W. complained that the child always came to his home from mother with cuts and bruises and that mother made excuses about A.W. getting hurt playing with his brother. Two days later, K.W. took A.W. to urgent care to examine the burns, where it was learned there was a third burn on A.W.’s leg. A.W. was examined by a nurse practitioner who indicated that two of the three burns were “brush burns,” consistent with the child pulling away causing accidental burning, but that one burn appeared to be intentional because it involved direct contact.

A petition was filed concerning all three children. As it pertained to L.J. and A.J., one allegation was made pursuant to Welfare and Institutions Code[3] section 300, subdivision (b)(1), alleging that father K.J. had an active criminal warrant, issued in 2019, for misdemeanor domestic violence against a third party (not mother) along with a misdemeanor count of child endangerment relating thereto, placing L.J. and A.J. at risk. Under section 300, subdivision (j), the petition alleged that both L.J. and A.J. were at risk due to the abuse or neglect of A.W.

In the social worker’s out-of-custody report prepared for the initial hearing, the social worker set out additional information. The social worker reported that there were frequent arguments between K.W. and mother so the paternal grandmother picked up and transferred A.W. between the parents in connection with their shared custody arrangement. K.W. expressed concern to the paternal grandmother about mother’s drinking, who, in turn was very critical of mother, stating that mother had been drunk on consecutive Sundays and that A.W. had been returned to K.W. dirty, shoeless and unfed.

Information learned from A.W.’s childcare told a different story. K.W. and his mother would regularly come to the day care center to do well-checks on A.W., and the paternal grandmother made derogatory comments about mother. A.W. had many behavior problems, including, biting, kicking, hitting, pushing, pulling children down to the ground by their shirt collars, throwing toys at children and spitting at them. He also showed this same behavior towards the teachers, using foul language at them, including “mother fucker, bitch, shut the fuck up, fuck and shit.” The daycare center also noted A.W. was very clumsy and hurt himself regularly at the school. The daycare center also reported a domestic violence incident between mother and K.W. outside the school, during which K.W. accused mother of drinking alcohol and tried to prevent her from picking up A.W. from the school; after advising K.W. to leave and spending a few minutes with mother, the administrator with the daycare center determined that mother had not, in fact been drinking, and allowed her to take the child home. That same month, there was a confrontation with the paternal grandmother at the school in which the latter called the administrator derogatory names. The paternal grandmother is no longer allowed on the grounds of the daycare center.

Regarding K.J., when interviewed he reported no problems with mother regarding custody-sharing, he was uninformed about the incident involving A.W., and he had no concerns about mother. He denied any criminal history and was surprised to learn that DPSS had found active misdemeanor charges against him.

In addition, DPSS found a prior child welfare notation regarding a 2016 incident, where A.J. was treated for a head injury that was accidental in origin, resulting from the child falling while playing with a toy. When a bump appeared on his head, father and mother took him to urgent care where it was discovered he suffered a non-displaced, non-depressed skull fracture involving no evidence of abuse. The incident was described as unfounded for abuse or neglect. The social worker indicated that while there were no direct allegations made against father, the outstanding charges indicated he might benefit from services.

The initial out-of-custody hearing took place on November 9, 2021, at which counsel was appointed for father, who was not present due to his work schedule. Father’s counsel entered his denials in his absence. Counsel also made a motion to dismiss the allegations against father based on In re Alysha S. (1996) 51 Cal.App.4th 393. No ruling was made on the motion (but it is deemed denied where dismissal was not ordered); the court found father was a presumed father of L.J. and A.J., ordered that the children remain in their parents’ custody and a hearing was scheduled to determine jurisdiction.

The jurisdiction report was submitted on December 16, 2021, recommending true findings on all allegations, and that the children remain in the custody of mother and father. The social worker concluded the investigation substantiated the general neglect allegation for mother but found the abuse allegation against mother respecting A.W. to be inconclusive. The report included additional information about the active misdemeanor warrant for father. The misdemeanor charges arose from a domestic violence incident involving another woman who reported father had struck her in the face while they both argued. Both father and the woman were intoxicated at the time of the incident. At some point, the woman carried her four-year old son to bed with her and wrapped herself in a blanket. Father grabbed the blanket she was wrapped in and yanked it, pulling the woman onto the floor, but not the child, and then struck her on the left temple. The woman then kicked and punched father in the presence of her child. Although charges were filed, the warrant was never served and father never received a notice to appear, so he thought the charges were dropped. He was unaware of the active case[4] and was surprised to learn of a child endangerment charge because his ex-girlfriend’s child was not involved.

The jurisdiction report also referred to information from interviews of other family participants. L.J. described her father as sweet, and indicated he does not use physical discipline, although he sometimes raised his voice, which scared her. A.J. described father as a nice guy who showed them things and kept them clean. Mother had no knowledge of the domestic violence incident, but assumed it involved an ex-girlfriend of father’s; however, she denied any domestic violence during her relationship with father and indicated he is a good father who has never exposed the children to violence. The maternal grandmother had no concerns about K.J.’s parenting of L.J. and A.J.; the children visited him overnight one or two times per week.

The jurisdiction report also included statements by K.W., the father of A.W., who made negative statements about mother, her new husband, and father K.J., while minimizing his own conduct. Respecting father, K.W. stated father sent inappropriate messages to mother, and he criticized father’s delay in taking A.J. for treatment in 2016, hypothesizing father wished to avoid being discovered to be under the influence of marijuana. But otherwise, K.W. felt father was a “stand up guy.” Mother’s new husband (who was married to mother for three weeks as of the date of the initial hearing) also had concerns about father’s anger issues and referring to an inappropriate text message father sent to mother advising her against getting pregnant.

The jurisdiction hearing took place on December 21, 2021, at which hearing mother’s counsel and father’s counsel requested to set a contested hearing. Father, still working two jobs, did not appear at the hearing. The court informed counsel that because father did not appear, he had no right to set the contest.

Minors’ counsel, who had previously expressed the expectation that L.J. and A.J.’s allegations would be dismissed at the initial hearing, addressed the Family Law issues and criminal charges involving K.W. As to father, minors’ counsel now stated the children are afraid of him because he is always angry and yells at them. Father’s counsel made a motion to dismiss the b-5 allegation because it failed to state a basis for jurisdiction where the two-year-old charges did not involve mother or the children. Counsel also requested dismissal of the sibling abuse allegation pursuant to section 300, subdivision (j).

The court accepted the social worker’s reports into evidence and made true findings that L.J. and A.J. were dependent children, but in making the true finding, the court added, without prior notice, language to the b-5 allegation, that “Father has not addressed his anger issues or sought treatment. The children continue to express fear of his anger.” The court ordered that physical custody remain with the parents and ordered them to comply with Family Maintenance Services.

Father timely appealed.

Discussion

The dependency petition in this case involved a single allegation against father, designated as allegation b-5. That allegation stated, “The father, K[.] J[.], has active criminal charges and an active warrant for PC M273. 5 (A) Inflict Corporal Injury/ Spouse and PC M273A( B) Abuse/ Endanger Child/ willfully harm child. Such actions place the children, [L.J.] and [A.J.], at risk of suffering serious physical harm.” At the initial hearing, father made a motion to dismiss the allegation, referring the court to the holding of In re Alysha S., supra, 51 Cal.App.4th 393. The social worker acknowledged there were no direct allegations against father but added the allegation because the fact there were active charges suggested he might benefit from services.

At the jurisdiction hearing, after father’s second motion to dismiss the allegation against father, the court unilaterally modified the language prior to finding it true. As modified, allegation b-5 states, “The father, K[.] J[.], has active criminal charges and an active warrant for PC M273. 5(A) Inflict Corporal Injury/ Spouse and PC M273A (B) Abuse/ Endanger Child/willfully harm child. Such actions place the children, [L.J.] and [A.J.], at risk of suffering serious physical harm. Father has not addressed his anger issues or sought treatment. Children continue to express fear about father’s anger.” (Modified language is in italics.)

Father argues the court erred in sustaining the jurisdictional allegation against father for insufficient evidence. DPSS disagrees, arguing there is sufficient evidence father failed to protect L.J. and A.J., because he “displayed an unresolved pattern of anger, that he failed to protect the children from his ‘anger issues’, and as a result the children were at substantial risk of serious physical harm.” We find it necessary to point out that the language used by DPSS to describe the basis for jurisdiction found true by the court does not mirror the actual allegation made or found true. Instead, we agree the allegation should have been stricken because it does not support a finding of jurisdiction under section 300.

A petition, like a civil complaint, must contain “A concise statement of facts, separately stated, to support the conclusion that the minor upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted.” (§ 332, subd. (f); In re Alysha S., supra, 51 Cal.App.4th at p. 396.) We recognize that a jurisdictional finding good against one parent is good against both, such that a minor is a dependent if the actions of either parent bring the minor within one of the statutory definitions of a dependent child. (In re Briana V. (2015) 236 Cal.App.4th 297, 308, citing In re Alysha S., supra, 51 Cal.App.4th at p. 397.)

However, we may address the merits of the jurisdictional findings against one parent where “‘the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) “could have other consequences for [the appellant], beyond jurisdiction” [citation].’” (In re Briana V., supra, 236 Cal.App.4th at p. 309, citing In re Drake M. (2012) 211 Cal.App.4th 754, 762–763.)

In In re Jesus M. (2015) 235 Cal.App.4th 104, the father had committed acts of domestic abuse years ago, but thereafter restricted his misconduct to harassing Mother and denigrating her to the children, in violation of restraining orders. The reviewing court concluded the evidence was sufficient to support a finding of emotional abuse, pursuant to section 300, subdivision (c), but that the trial court could not properly assert jurisdiction over J[.] and G[.] under subdivision (b) of section 300 based on two incidents occurring three years earlier, which had not been repeated. (In re Jesus M., supra, at p. 112.)

In the present case, the petition was predicated on alleged abuse of a child who was not father’s child. The circumstances of the injury to A.W. did not pose a risk of harm to L.J. or A.J. In fact, minors’ counsel assumed that the allegation against father would be dismissed at the initial hearing because the case related only to A.W. Reversal of the b-5 allegation and finding will not affect jurisdiction of the court over A.W., but it will affect father’s status as a non-offending father in the event of later proceedings affecting mother’s custody.

“‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the child to the defined risk of harm.’ [Citation.]” (In re Emily L. (2021) 73 Cal.App.5th 1, 15.) “Thus, previous acts of abuse or neglect, standing alone, do not establish a substantial risk of future harm; there must be some reason beyond mere speculation to believe they will reoccur. [Citations.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565; see also, In re Alysha S., supra.)

If findings based on “stale” acts of domestic violence and neglect which had occurred 10 months earlier do not support a jurisdictional finding (see In re Ma.V. (2021) 64 Cal.App.5th 11, 22), a two-year old incident which did not involve violence in the home of the children whose welfare was before the juvenile court, must be considered on the moldy side. The two-year old allegation of domestic violence which did not involve the mother or the children in the current case, does not establish that father poses a risk of harm to L.J. or A.J. sufficient to support jurisdiction.

Nor does the addition of language referring to father’s failure to seek treatment for “anger issues” cure the lack of jurisdiction basis. There is no credible information before the court of any actual or recent incidents in which father’s “anger issues” were manifest, from which it could be said the children were currently at risk, in light of the fact both children denied any physical discipline or abuse. The statement of L.J. to the social worker that her father “sometimes raises his voice which scares her”, which was the only evidence before the court[5], does not demonstrate a current risk of present or future harm. From biblical times, parents have raised their voices at children without creating a risk of serious physical or emotional harm. Even the Juvenile Court Law acknowledges there is nothing wrong with age appropriate discipline (§ 300, subd. (a)), so evidence that a parent “sometimes raises his voice” which scares a child does not support juvenile court jurisdiction.

The allegation of outstanding misdemeanor charges of domestic violence and child endangerment—based on a single two-year old incident—might provide a sufficient basis for concern about the children’s safety if there were some reason to believe father frequently engaged in domestic violence, or had engaged in domestic violence with the children’s mother, or that mother, L.J., or A.J. have actually been exposed to harm from the alleged “anger issues.” There is no such evidence, and the social worker candidly admitted the allegation against father was made solely because he might “benefit from services.”

Mother denied any ongoing child custody issues with this father, or problems with visitation involving this father, or specific evidence that this father’s “anger issues” pose a risk of harm. Under these circumstances, an allegation of a single incident of domestic violence, occurring more than two years before the hearing, which did not involve mother, L.J., or A.J., and apparently was not even pursued in the criminal courts, does not support an inference there was a current risk of harm to the children in the present or the future. Pursuing an allegation against a parent as an impetus for counseling is improper. (In re James B. (1986) 184 Cal.App.3d 524, 530.)

We therefore reverse the true finding of jurisdiction under section 300, subdivision (b)(1), based on allegation b-5.

Disposition

The true finding of jurisdiction under section 300, subdivision (b)(1), based on allegation b-5 is reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

FIELDS

J.

[1] Father has not presented an argument challenging the trial court’s unilateral modification of the language of the b-5 allegation, although it was obviously intended to show a current risk in light of the two-year-old allegation of domestic violence. The amended language altered father’s status in the case from a non-offending parent to that of an offending parent, despite the lack of evidence of any recent acts of abuse or neglect. The basic rule from civil law is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice. (In re Andrew L. (2011) 192 Cal.App.4th 683, 689, citing In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042; see also South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1124.) Here, father had informed the social worker he did not plan to attend the hearing because the attorney (whom he mistook as being the minors’ attorney) told him he did not need to miss work in order to appear at the hearing because the petition involved mother and K.W.’s child. To the extent the new allegations implicated father’s “anger issues” that posed a risk to the children, it required notice and an opportunity to defend, and father was misled. The court should be mindful of making significant unilateral modifications to a petition in the absence of a parent. The refusal to allow father’s counsel to set the matter contested—for the improper reason that he was not present—and to then modify the petition to father’s detriment without prior notice or an opportunity to defend the new allegations, presents a due process problem. However, for the reasons that follow, we have not solicited supplemental briefing on this issue.

[2] Later, a third burn mark was noted.

[3] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[4] At this time, the charges are likely to be dismissed for want of prosecution. Relating to misdemeanor arrest warrants, “prejudice would be presumed and dismissal required without any further showing since the delay was unjustified and exceeded the one-year statute of limitations on misdemeanors [citation].” (Stabio v. Superior Court (1994) 21 Cal.App.4th 1488, 1498.)

[5] “It is axiomatic that the unsworn statements of counsel are not evidence.” (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11, citing In re Heather H. (1988) 200 Cal.App.3d 91, 95 [“unsworn testimony does not constitute ‘evidence’ within the meaning of the Evidence Code”]; People v. Lee (1985) 164 Cal.App.3d 830, 841 [same]; People v. Superior Court (Crook) (1978) 83 Cal.App.3d 335, 341[statements by counsel are not evidence]; see also Rules Prof. Conduct, rule 5-200(e) [attorneys must not “assert personal knowledge of the facts at issue, except when testifying as a witness”].)