California Court of Appeal Mar 25, 2013 No. D062670Unpublished
Filed 3/25/13 In re J.G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.G. et al., Persons Coming Under the Juvenile Court Law. D062670 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ13627E-F) Plaintiff and Respondent,
v.
AMBER G. et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Affirmed.
Amber G. and Juan G. (together, the parents) appeal judgments declaring their son, J.G.,
and Amber's son Isaiah (together, the minors), dependents of the juvenile court and removing
them from parental custody. The parents challenge the sufficiency of the evidence to support
the court's jurisdictional findings and dispositional orders. Juan also contends the court erred
by requiring his visits with J.G. to be supervised. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND1
In 2007, Amber's four older children became dependents of the court based on findings
Amber and the children's father, Rodolfo L., exposed them to domestic violence. After
receiving 12 months of reunification services, Amber failed to reunify with these children. The
court issued custody orders awarding Rodolfo sole legal and physical custody and requiring
Amber's visits to be supervised. Amber did not, however, maintain contact with the children.
In 2009, Amber gave birth to Isaiah,2 who tested positive for methamphetamine. The
San Diego County Health and Human Services Agency (Agency) filed a petition in the
juvenile court, alleging Isaiah was at substantial risk of harm because Amber had an extensive
history of substance abuse and admitted using methamphetamine during her pregnancy.
Amber's criminal history dated to 1995, and included assault, battery, theft and drug-related
crimes. The court sustained the allegations of the petition, declared Isaiah a dependent,
removed him from parental custody and placed him in foster care.
Amber was incarcerated during part of the reunification period, but once released from
custody, she successfully participated in drug treatment and completed a parenting class. She
began living with Juan and was pregnant with her sixth child. Amber was visiting Isaiah, and
attending therapy and Narcotics Anonymous meetings. She maintained her sobriety for one
1 Counsel for the parents have mischaracterized the record by stating facts favorable to their clients while omitting unfavorable facts. We remind them of their duty, as officers of the court, to accurately portray the facts in accordance with rules of appellate procedure. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 688-689 [record must be viewed favorably to the juvenile court's determination].)
2 Isaiah's father, Benjamin S., is not a party to this appeal. 2
year and the social worker recommended the court place Isaiah with her. For the next six
months, Amber received family maintenance services, was in compliance with the conditions
of her parole and remained sober. She gave birth to J.G. in August 2011. Three months later,
the court terminated dependency jurisdiction as to Isaiah.
In July 2012, Agency filed a petition in the juvenile court as to Isaiah under Welfare and
Institutions Code section 300, subdivision (b)3 alleging he had suffered, or was at substantial
risk of suffering, serious physical harm as a result of the parents' failure or inability to
adequately supervise or protect him. Specifically, the petition alleged Isaiah sustained injuries
to his head and bruises to various parts of his body when Amber left him inadequately
supervised and he climbed on a dresser that fell on him. This dresser had fallen on J.G. and
injured him three months earlier, and Amber failed to secure the dresser to ensure the minors'
safety. Agency also filed a petition as to J.G. under section 300, subdivision (j) alleging he
was at substantial risk of harm as a result of Isaiah's abuse or neglect.
According to a detention report, Agency had received a referral that Isaiah had bruises
on his body and had "busted open his head" when a dresser fell on him. The investigating
social worker noticed Isaiah had a bandage and swelling above his eye. He also had three
circular facial bruises, a cluster of bruises on his hip and multiple bruises on his legs. An
evaluation and X-rays at the hospital showed no current fractures, but there was evidence of an
old, healed fracture of Isaiah's wrist. The doctors were concerned about medical neglect, given
Amber's delay in seeking medical attention for Isaiah and his multiple bruises in various stages
of healing.
3 Statutory references are to the Welfare and Institutions Code. 3
The social worker learned that the same dresser that had fallen on Isaiah had previously
fallen on J.G. when Isaiah climbed on it. J.G. sustained no injuries, and Amber promised the
in-home services worker she would secure the dresser. She failed to do so, however, resulting
in Isaiah's injuries. Amber did not seek medical attention for the cut to Isaiah's head or his
many bruises. She said she was napping when the dresser fell and did not take Isaiah to the
doctor because by the time she woke up, he seemed fine. Amber was unable to explain the
multiple bruises on Isaiah's body other than to say he climbed on everything and was always
falling.
The court made prima facie findings on the petitions and detained the minors in out-of-
home care. It ordered liberal, supervised visits for the parents.
According to a report prepared for the jurisdiction and disposition hearing, a five-year
restraining order had recently been issued against Amber, protecting Rodolfo and their four
children. Juan had a lengthy criminal history, including multiple arrests for drug-related
crimes and for carrying a loaded firearm. He was currently on probation and was a registered
narcotics offender.
The social worker expressed great concern about the welfare of two-year-old Isaiah and
11-month-old J.G. because they were nonverbal and unable to protect themselves. Isaiah's
extensive injuries were suspicious for nonaccidental trauma. Amber had a history of parental
neglect and drug use, and she failed to reunify with her four oldest children. Two months
before the jurisdiction and disposition hearing, Amber tested positive for methamphetamine.
According to an addendum report, the social worker received a telephone message from
Amber late one night, saying she was concerned that Juan might be using drugs again because
4
he had gone out with a friend who was a methamphetamine dealer. Amber was afraid because
Juan's family reported that he became violent when he used drugs. She said Juan had been
more aggressive with her recently and they had been fighting often. Amber asked the social
worker to have Juan drug tested.4
The social worker asked the parents to drug test because she wanted them to begin
unsupervised visits with the minors if the tests were negative. The social worker informed the
parents that a failure to test would be considered a positive test. The parents did not show up
for their drug tests.
By August 2012, the parents had improved the condition of their home by installing
safety locks on drawers and cabinets, and moving chemicals and bleach to the garage. They
had strapped a desk to the wall, covered the electrical outlets, tied the curtains back and
secured the bedroom dresser to the wall.
Amber was visiting the minors two or three times a week, and Juan was visiting them
once a week. Most of the time, the parents arrived late. The visits went well. The minors'
caregiver invited Amber to her home for additional visits but Amber declined the invitation. In
September 2012, the caregiver asked to have the minors removed from her home because she
believed the parents were being disrespectful by declining the opportunity for extended visits
and failing to drug test, which meant they could not begin unsupervised visits.
The social worker reported that although the parents had taken some action by child-
proofing their home and going to parenting classes, they continued to deny having done
anything wrong. Their failure to drug test suggested they continued to use drugs, and thus, the
4 Amber later told the social worker that Juan came home that night and everything was fine. 5
social worker recommended against unsupervised visits with the minors. Amber eventually
submitted clean drug tests on two occasions.
At a contested jurisdiction and disposition hearing, the court received in evidence
Agency's reports. Although the social worker was present, none of the parties called her to
testify. After considering the evidence and arguments of counsel, the court sustained the
allegations of the petitions, declared the minors dependents, removed them from parental
custody and placed them in out-of-home care. The court gave the social worker discretion,
with the concurrence of minors' counsel, to begin unsupervised visits and a 60-day trial visit.
DISCUSSION
I
The parents contend there was no substantial evidence to support the court's
jurisdictional findings.5 They assert that at the time of the jurisdiction hearing, the minors
were not at substantial risk of harm because the parents had completely rectified their mistake
by securing the dresser that had fallen on the minors and taking other steps to ensure the
minors' safety in the home. Thus, the parents argue, there was no reason to believe the
neglectful acts would continue in the future.
A
In reviewing the sufficiency of the evidence on appeal, we consider the entire record to
determine whether substantial evidence supports the juvenile court's findings. Evidence is
" '[s]ubstantial' " if it is " ' "reasonable, credible, and of solid value." ' " (In re S.A. (2010) 182
Cal.App.4th 1128, 1140.) We do not pass on the credibility of witnesses, attempt to resolve
5 Amber makes this argument as to both minors. Because Juan is not the father of Isaiah, his argument applies only to J.G. 6
conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in
support of the findings, view the record favorably to the juvenile court's order and affirm the
order even if other evidence supports a contrary finding. (In re Casey D. (1999) 70
Cal.App.4th 38, 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has
the burden of showing there is no evidence of a sufficiently substantial nature to support the
findings or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child
has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness
as a result of the parent's failure to adequately supervise or protect the child or provide
adequate medical treatment. In enacting section 300, the Legislature intended to protect
children who are currently being abused or neglected, "and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of that harm." (§ 300.2, italics
added.) The court need not wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child. (In re Heather A. (1996) 52
Cal.App.4th 183, 194-196.) The focus of section 300 is on averting harm to the child. (In re
Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Under section 300, subdivision (j) a child may be adjudged a dependent of the juvenile
court if the "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 [facts] the court considers
7
probative in determining whether there is a substantial risk to the child." A jurisdictional
finding under section 300, subdivision (j) requires both past abuse of a child's sibling and a
current risk the child will be abused in the future. (In re Carlos T. (2009) 174 Cal.App.4th
795, 803; In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.)
Although "the question under section 300 is whether circumstances at the time of the
hearing subject the minor to the defined risk of harm" (In re Rocco M. (1991) 1 Cal.App.4th
814, 824), the court may nevertheless consider past events when determining whether a child
presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th
1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th
735, 749, fn. 6; In re Troy D. (1989) 215 Cal.App.3d 889, 899-900.) A parent's past conduct is
a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169-1170.)
"Facts supporting allegations that a child is one described by section 300 are cumulative." (In
re Hadley B. (2007) 148 Cal.App.4th 1041, 1050.) Thus, the court "must consider all the
circumstances affecting the child, wherever they occur." (Id. at pp. 1048, 1049.)
B
Here, the evidence showed Isaiah sustained a head injury and multiple bruises when he
climbed on a dresser that fell on him while Amber was napping. The same dresser that injured
Isaiah had fallen on J.G. several months earlier and the parents failed to take protective
measures by securing it to the wall, even though they were aware that Isaiah "climbs on
everything." As the juvenile court noted, the parents had ample notice of the need to supervise
Isaiah, and yet they substantially delayed doing what was necessary to keep the minors safe.
8
Although the parents had remedied the dangerous conditions of the family home by the
time of the jurisdiction hearing, there was other evidence that the minors were in need of the
juvenile court's protection. Amber had a history of parental neglect and drug use, and she
failed to reunify with her four oldest children. The parents did not drug test when required to
do so, and Amber recently tested positive for methamphetamine. Despite participating in
parenting classes, the parents lacked insight about why the minors were removed from their
care. Further, the doctors who examined Isaiah at the hospital were concerned about medical
neglect because of Amber's delay in seeking medical attention for a laceration to Isaiah's head.
The doctors also noted Isaiah had a healed wrist fracture and multiple bruises in various stages
of healing that were inconsistent with accidental injuries. Substantial evidence supports the
court's finding Isaiah was at substantial risk of suffering serious physical harm or illness as a
result of Amber's failure to adequately supervise or protect him. (§ 300, subd. (b).)
Substantial evidence also supports a finding J.G. was at substantial risk of serious physical
harm or illness within the meaning of section 300, subdivision (j).
II
The parents challenge the sufficiency of the evidence to support the court's dispositional
orders. They assert the minors would not be at risk if left in the parents' custody and there
were less drastic alternatives to removal. Juan further asserts the court erred by ordering his
visits with J.G. to be supervised.
A
Before the court may order a child physically removed from his or her parent's custody,
it must find, by clear and convincing evidence, the child would be at substantial risk of harm if
9
returned home and there are no reasonable means by which the child can be protected without
removal. (§ 361, subd. (c)(1).) The jurisdictional findings are prima facie evidence the minor
cannot safely remain in the home. (Ibid.) The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the statute is
on averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re
Jamie M., supra, 134 Cal.App.3d at p. 536, citing In re B.G. (1974) 11 Cal.3d 679, 699.)
B
Here, the court's dispositional orders were based on findings, supported by substantial
evidence, the minors were at substantial risk of harm as a result of the parents' failure or
inability to adequately supervise or protect Isaiah. The social worker identified several risk
factors necessitating the minors' out-of-home placement, including Amber's history of
substance abuse, prior child welfare history and recent positive test for methamphetamine;
Amber; the parents' failure to drug test in order to have unsupervised visits with the minors;
Isaiah's healed or healing injuries that were suspicious for nonaccidental trauma; the minors'
vulnerability because of their young ages; and the parents' lack of insight about how to
properly supervise an active child.
The parents argue there were less drastic alternatives, such as placing the minors with
them and ordering intensive in-home services. However, the record contains sufficient
evidence that the minors could not be protected without removing them from the parents'
custody. Although Amber has enrolled in drug treatment, she needs additional time to show
she can maintain her sobriety, given her struggle with substance abuse. Moreover, the parents
10
still did not understand that Isaiah had special needs that required extra vigilance and
supervision. From this, the court could reasonably find that returning the minors to the parents'
custody, even with Agency supervision and services in place, was not a feasible alternative to
removal. (See In re Jeannette S. (1979) 94 Cal.App.3d 52, 60 [removal order proper if based
on proof of parental inability to provide proper care for minor and proof of potential detriment
to minor if he or she remains with parent].) Substantial evidence supports the court's
dispositional orders.
C
The juvenile court defines a parent's visitation rights by balancing the parent's interests
in visitation with the child's best interests. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757;
§§ 362.1, subd. (a)(1)(A), 366.21.) Restrictions on parental visitation are proper if they are
consistent with the child's best interests under the particular circumstances of the case. (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1009.)
The court has broad discretion in making visitation orders, which we review for abuse
of discretion. (In re Lee G. (1991) 1 Cal.App.4th 17, 26-27; In re Julie M. (1999) 69
Cal.App.4th 41, 48-51.) In this regard, the juvenile court's order will not be disturbed on
appeal unless the court has exceeded the limits of legal discretion by making an arbitrary,
capricious or patently absurd determination. When two or more inferences reasonably can be
deduced from the facts, we have no authority to reweigh the evidence or substitute our
judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In
re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.)
11
Here, Juan visited J.G. only once a week and was often late for visits. He declined the
caregiver's offer for additional visits. The social worker gave Juan the opportunity to have
unsupervised visits with J.G. if he had negative drugs tests and explained that a failure to test
would be considered a positive test. Nevertheless, Juan did not drug test, which was especially
concerning in light of his substance abuse history and his status as a narcotics offender. From
this, the court could reasonably find visitation should remain supervised until Juan progressed
with the requirements of his case plan, including participating in a parenting class and
consistently visiting J.G., arriving on time and interacting with him. Having considered J.G.'s
best interests, the court acted well within its broad discretion by requiring supervised visits
between Juan and J.G. (See In re Chantal S. (1996) 13 Cal.4th 196, 203; In re Christopher H.,
supra, 50 Cal.App.4th at p. 1009.)
DISPOSITION
The judgments are affirmed.6
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
MCINTYRE, J.
6 Agency's request for judicial notice of postjudgment evidence is denied. In light of this ruling, Juan's motion to strike Agency's references and arguments as to postjudgment evidence is moot. 12
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the juvenile court's jurisdictional findings and dispositional orders, concluding that substantial evidence supported the determination that the minors were at substantial risk of harm and required removal from parental custody. The court further held that the juvenile court did not abuse its discretion in ordering supervised visitation for the father.
Issues
Whether substantial evidence supports the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b) and (j).
Whether substantial evidence supports the dispositional orders removing the minors from parental custody.
Whether the juvenile court abused its discretion by requiring the father's visits with his son to be supervised.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Substantial evidence supports the court's finding Isaiah was at substantial risk of suffering serious physical harm or illness as a result of Amber's failure to adequately supervise or protect him.”
“Substantial evidence supports the court's dispositional orders.”
“Having considered J.G.'s best interests, the court acted well within its broad discretion by requiring supervised visits between Juan and J.G.”