Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J-517891A-C, George W. Clarke, Judge.
HALLER, J.
Two-year-old Aaron C., the youngest child of Justin C. and Valerie C., was mauled to death by the family dog in July 2010. At the time of the attack, Valerie lay unconscious on the couch following a night of drinking. Aaron's siblings—Lauren C., Emily C., and J.C.—witnessed portions of the attack and attempted to wake their mother.
The court sustained the Welfare and Institutions Code section 300 petitions filed on behalf of Lauren, Emily and J.C., finding true allegations that the children were persons described by subdivisions (b) and (f) which read in part:
Undesignated statutory references are to the Welfare and Institutions Code.
"Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶]... [¶] (b) 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 failure or inability of his or her parent or guardian to adequately supervise or protect the child.... [¶]... [¶] (f) The child's parent or guardian caused the death of another child through abuse or neglect."
Justin, who was deployed at sea when Aaron died, appeals the jurisdictional orders, arguing the court erred in presuming that mere civil abuse or neglect was sufficient to sustain the allegations under section 300, subdivision (f) (hereafter referred to as subdivision (f)). He maintains subdivision (f) applies only if a parent caused the death of a child through criminal negligence or abuse and there remains a present risk of danger to the other children as a result of that criminal negligence. Justin does not challenge the finding of jurisdiction under section 300, subdivision (b).
We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The record confirms the court's observation at the initial detention hearing that "[t]his is just an unspeakable situation for everyone." Because Justin challenges the sufficiency of the evidence to support the true finding under subdivision (f), in addition to questioning the negligence standard to be applied, we set forth the facts in detail.
On the evening before the fatal incident, Valerie was at home with the four children and a young German shepherd mix named Zeus. She cooked frozen pizza for the children's dinner, and gave Aaron a peanut butter and jelly sandwich which he smeared all over himself. Valerie did not give Aaron a bath because "he was being very pissy [and she] just put him to bed." Seven-year-old Lauren and five-year-old Emily went to bed in their bedroom, and three-year-old J.C. slept in a spare room. Valerie locked Aaron in J.C.'s room to prevent him from getting into things in the middle of the night.
Valerie invited a friend over and began drinking bourbon and cola around 9:30 p.m. She continued to drink after her friend left around midnight. Valerie recalled drinking four or five glasses of bourbon and cola during the evening and fell asleep on the couch around 2:00 a.m. She did not follow her usual practice of locking Zeus in his crate because she "was just tired and didn't feel like it."
Lauren reported that her mother was asleep on the couch when she and Emily came downstairs the next morning. Lauren tried to ask Valerie for breakfast but was unable to wake her. By that time, J.C. had come downstairs. Lauren said that J.C. usually let Aaron out of his room, but the toddler was too little to come downstairs by himself. Lauren and Emily retrieved a box of cereal from the family car and the three children ate breakfast while watching cartoons in the living room. Valerie continued to sleep on the couch.
Emily ran upstairs and came back to tell Lauren that Zeus was biting Aaron on the head and there was blood on the floor. Lauren found Aaron "sleeping" on the floor in Valerie's room with the dog biting his head. Lauren told Valerie "but she didn't do anything because she didn't wake up." Lauren took Emily and J.C. outside to H.S.'s house because she was worried the dog would hurt them too. H.S. went to check things out, but Valerie did not come to the door and the dog prevented her from going inside. Other neighbors entered the house, found Aaron, and called 911. One neighbor performed cardiopulmonary resuscitation on Aaron until paramedics arrived. Doctors pronounced Aaron dead shortly after he arrived at the hospital.
Social worker Angela Redmond spoke with Valerie at the family home on the day of Aaron's death. Valerie appeared disheveled and smelled of liquor. The home was in disarray. Redmond observed a large dog crate at the door, stained carpets, a pile of cigarettes in one part of the living room, dirt and debris in the stairwell, and a sharp piece of glass on one of the stairs. There were dog feces and urine in the young girls' bedroom upstairs. Redmond observed that the girls' window screen was torn.
Valerie admitted she drank "a little too much" and was hung over from the night before. She described her drinking habits and stated this was the first time she drank too much without realizing it. Valerie had a vague recollection of Lauren attempting to wake her earlier that morning and admitted she was "out of it." Valerie also told Redmond that she had been diagnosed with obsessive compulsive disorder in 2008 and took a generic form of Zoloft. When Redmond asked about the dog, Valerie stated that Zeus was sometimes "hyper" and played rough, but insisted he was not aggressive. She usually kept Zeus outside or in his crate when the children were around, because "he sometimes knock[ed] down the little ones."
During a subsequent interview at the foster care facility, seven-year-old Lauren described her home life to the social worker. Lauren said she was the one who usually prepared breakfast for her siblings because her mother was "always sleeping." She wanted both her parents to stop drinking.
The police interviewed Valerie's neighbors. K.M. reported that Valerie rang his doorbell at 5:30 a.m. the morning of Aaron's death and asked him for a cigarette. K.M. said he could not tell the level of her intoxication, but told other neighbors that she was "very intoxicated." K.M. also stated that a woman he thought to be Valerie's sister-in-law told him that "the dog had bit the boy on the hand previously. It wasn't a serious bite, but they had apparently told her to get rid of the dog...." Another neighbor, N.B., "overheard in the group discussion with some of the neighbors that Valerie was not feeding the animals."
H.S., a neighbor, reported that Emily and J.C. had become ill a few weeks earlier after drinking half a bottle of hydrogen peroxide. Valerie called Poison Control. H.S. said that Valerie did not appear to be upset by the incident. H.S. also reported seeing the children hanging out of a second floor bedroom window. Although she told Valerie what she observed, H.S. said Valerie took no action to correct the problem.
Social worker Nicol Tarvin spoke with Justin three days after the incident. Justin acknowledged he thought Valerie was an alcoholic. He admitted drinking with his wife, denied having an alcohol problem himself, but expressed his willingness to explore the alcohol-related issues in therapy. He said he and Valerie agreed that she would not drink when he was on deployment. Justin told Tarvin that the home was not typically dirty. He had been onboard ship for seven weeks and talked with Valerie and the children every day. Justin never suspected anything was wrong. In a telephone conversation later the same day, Justin told Tarvin that the dog had never shown aggression against the children. However, he did not trust the dog because it was "skittish, shy and tentative" towards him. Justin also indicated that the dog got "really hyper" with the children.
Based on this information, the San Diego County Health and Human Services Agency (the Agency) filed petitions on behalf of Lauren, Emily and J.C. (together, the children), alleging that the children came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (b) and (f). At the August 4, 2010, detention hearing, Justin requested that the children be detained with him. The court asked Justin how he could leave the children with Valerie without concern that her alcohol use might endanger them. Justin cited their agreement and stated, "She does not drink without me there." When pushed on the point, Justin acknowledged he "had to take her word for it." The court detained the three children in foster care, but gave the Agency discretion to place them with an approved relative or Justin, following approval of his home and concurrence of the children's counsel.
The Agency explored the option of returning the children to Justin in accordance with the family's request. Justin moved to a four-bedroom home in military housing and proposed that his grandmother move to San Diego and stay with him and the children in his new home. Tarvin was impressed by Justin's efforts. She also noted that Valerie and Justin had been very cooperative and that the extended family had proven to be a "huge support" to Valerie, Justin and the children.
Valerie explained more about the dog in a subsequent interview included in the Agency's jurisdiction report. She and Justin obtained 12-month-old Zeus in March or April 2010 from a woman named Michelle who posted the dog on craigslist. Michelle thought the dog might have been thrown from a vehicle by a former owner, but told Valerie he was good with children. Michelle noted that the dog liked women more than men and needed time to warm up to men. Valerie confirmed this, stating that Zeus refused to let Justin pet him. Justin told Valerie when he left on his last deployment that he wanted to get rid of the dog when he returned if it continued to avoid him.
Valerie told Tarvin that Zeus got excited when she picked up Aaron and the dog tried to play with Aaron by licking his face and feet. Aaron fussed if Zeus tried to lick him in the face. Valerie usually crated Zeus at night because he barked if left outside. Crating prevented the dog from urinating and defecating inside the house. Although Valerie did not crate Zeus the night before the incident, she confirmed that she had fed him.
Valerie's blood alcohol level was.15 percent when tested the afternoon of the fatal incident. During the series of interviews with Tarvin, Valerie described a history of drinking from age 16. She had passed out in front of Justin on more than one occasion. Up to the time of Aaron's death, Valerie thought she could control her use of alcohol. Valerie also stated she felt overwhelmed when Justin was deployed and had told him she felt depressed. Contradicting Justin, Valerie said they had no agreement that she would not drink while he was away.
Tarvin confronted Justin about his own drinking. She found him "very proactive" and cooperative with the Agency's efforts. Justin agreed to attend Alcoholics Anonymous meetings and substance abuse classes through the military. He also agreed not to drink or have alcohol in his home.
Tarvin described Valerie as remorseful and cooperative. Valerie planned to enter inpatient substance abuse treatment upon her return from Aaron's funeral in Colorado.
At the initial jurisdictional hearing on August 24, 2010, the Agency recommended that the court sustain the petitions. It also sought a continuance of the disposition hearing to allow Tarvin to complete an assessment whether Valerie was barred from receiving reunification services under section 361.5, subdivision (b)(4). Lastly, the Agency recommended that the children be detained with Justin on condition he not consume alcohol or have any alcohol in the house. Valerie requested trial on jurisdiction. In addition, Valerie's counsel informed the court that Valerie had experienced "a little breakdown" after enrolling in inpatient treatment, "got scared" and left the facility, but was returning the day of the hearing. The court ordered the children detained with Justin on the conditions set by the Agency, including that the children's paternal great-grandmother live in the home.
At the contested hearing held on September 30, 2010, the court received into evidence the Agency reports dated August 4, 2010, August 24, 2010, and the report prepared for the future hearing date of October 7, 2010. The latter dispositional report updated the information contained in earlier reports. The Agency noted that Valerie had "demonstrated periods of negligence and poor judgment when caring for the children on more than one occasion" in the past. It stated that it was Valerie's "negligence" that contributed to Aaron's death and the emotional trauma experience by Lauren, Emily and J.C. Later in the report, the Agency concluded that Valerie's "irresponsible and neglectful behavior" resulted in Aaron's death. However, the Agency also believed it was in the children's best interest to offer Valerie reunification services. Among other things, the Agency noted that "[s]ince day one [Valerie] has repeatedly stated that what happened to Aaron is her fault. She has never given excuses for her behavior or attempted to blame others or even the family's dog for what has happened. [Valerie] has also been very remorseful."
Valerie and Justin argued at the hearing that the Agency failed to sustain its evidentiary burden and asked the court not to make a true finding on the petition. However, no one discussed the standard of negligence to be applied to the subdivision (f) allegation. The court found the allegations of the petition true by clear and convincing evidence and removed the three children from Valerie's custody. The court further ruled it was appropriate for the Agency to place the children with Justin under the stated conditions. It ordered the Agency to provide Valerie with family reunification services and Justin with family maintenance services.
DISCUSSION
I. Preliminary Issues
The Agency argues Justin's appeal is not properly before us because he failed to raise the question whether subdivision (f) requires proof of criminal or civil negligence at the jurisdictional hearing. It also maintains the issue is "moot" because Justin does not challenge the finding of jurisdiction under section 300, subdivision (b). We reject the Agency's arguments and consider the merits of Justin's appeal.
Justin's response to the Agency's forfeiture argument is that the two cases addressing subdivision (f) were not final at the time of the September 30, 2010 hearing, and he should not be faulted for failing to bring them to the court's attention. We agree. In re A.M. (2010) 187 Cal.App.4th 1380 (A.M.), was filed on August 11, 2010, but not ordered published until August 31. That case merely reaffirmed that the preponderance of the evidence standard applied to findings under subdivision (f). (A.M., supra, at pp. 1387-1388.) The only mention of criminal and civil standards of negligence was in the context of causation: "Under both criminal and civil standards, a causal connection occurs when the acts of an individual are a substantial factor contributing to a death or injury." (Id. at p. 1388.) However, Justin suggests that the court in A.M. impliedly used the civil standard of negligence. In re Ethan C. (2010) 188 Cal.App.4th 992 (Ethan C.) directly addressed the question of civil versus criminal negligence raised in this appeal, but was not filed until September 24, 2010, six days before the jurisdictional hearing. The Supreme Court granted review in Ethan C. (In re Ethan C., review granted Dec. 21, 2010, S187587.) In these circumstances, we find no merit in the Agency's argument that Justin forfeited the issue of the applicable negligence standard.
What the Agency offers as a "mootness" argument is more properly characterized as a question of Justin's standing to challenge the true finding under subdivision (f) that Valerie caused Aaron's death through abuse or neglect. Justin was not named in that portion of the petitions and does not appeal from the separate findings involving him under section 300, subdivision (b). Although Justin may file a notice of appeal as a party to these juvenile proceedings, he lacks standing unless he is aggrieved by the orders from which appeal is taken. (In re D.S. (2007) 156 Cal.App.4th 671, 674.) For Justin to have standing to appeal, the juvenile court orders must have caused him "some injury, actual or threatened" (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751) or injuriously affected a "legally cognizable interest" (In re Paul W. (2007) 151 Cal.App.4th 37, 55). We need not delay these proceedings to address the question whether Justin's interests are sufficiently interwoven with Valerie's to confer standing (see In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193) because the outcome is the same whether we affirm on the merits or dismiss Justin's appeal.
II. The Negligence Standard Applicable to Subdivision (f)
There is no indication which standard of negligence the court applied to reach the true finding of jurisdiction under subdivision (f). Justin assumes it used the civil standard and contends the court should have applied the higher criminal negligence standard. He concedes that Valerie's negligence caused Aaron's death given her "unfortunate consumption of too much alcohol and the fact that she had passed out at the time that the family dog Zeus attacked young Aaron" but maintains the evidence is insufficient to sustain a true finding that Valerie was criminally negligent.
Justin and the Agency both argue that the language of other subdivisions of section 300 and the legislative history support their respective positions. Justin repeats the argument set forth in Jorgelina E. v. Superior Court (Aug. 30, 2006, D048461), an unpublished case from this court, which held that "the Legislature intended section 300, subdivision (f) to continue to be governed by principles of criminal law, but with a lesser standard of proof, " that is, a preponderance of the evidence. (Jorgelina E., supra, at pp. 10, 11.)
The Agency maintains the criminal negligence standard should not apply to subdivision (f) because it would undermine the Legislature's goal of providing maximum protection for children through juvenile proceedings that are essentially civil in nature. The Agency initially suggests that the language of subdivision (f) is clear and unambiguous and there is no reason for us to interpret the meaning of "neglect." However, the Agency also argues that the legislative history supports its position that the civil standard of negligence should apply. Like the court in Ethan C., supra, 188 Cal.App.4th at p. 1000, the Agency emphasizes that the 1996 amendments to subdivision (f) were intended to lower the standard of proof to the preponderance standard applicable in civil cases, and eliminate the requirement of a criminal conviction which had previously prevented the juvenile court from making jurisdictional findings under subdivision (f). The Supreme Court will ultimately resolve this issue.
Meanwhile, we need not attempt to resolve the conflict because we conclude the record supports a finding that Valerie was negligent under either standard. Because Justin concedes Valerie was negligent under the civil standard, we turn to the standard for criminal negligence. Penal Code section 7, subdivision 2 states that "[t]he words 'neglect, ' 'negligence, ' 'negligent, ' and 'negligently' import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns." Case law describes criminal negligence as " ' "aggravated, culpable, gross, or reckless... conduct [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life." ' " (People v. Valdez (2002) 27 Cal.4th 778, 783 (Valdez), quoting People v. Penny (1955) 44 Cal. 2d 861, 879.) Under the objective standard set forth in Penal Code section 7, subdivision (2), if a reasonable person in the defendant's position would have been aware of the risk involved, the accused is presumed to have had that awareness. (Valdez, supra, 27 Cal.4th at p. 783.)
Justin downplays Valerie's culpability in this tragic series of events, stating that "[t]he negligence in this case—leaving a toddler unattended in the presence of a large dog—was a one-time event that will likely never be repeated." He cites In re J. N. (2010) 181 Cal.App.4th 1010, a case in which the court reversed a jurisdictional finding under section 300, subdivision (b), based on a single episode where the father crashed the family car while intoxicated and the parents had failed to secure their children in their car seats. Justin maintains that Valerie's "one-time lapse of good judgment cannot support dependency jurisdiction even if a child is harmed or killed as a result thereof." Justin's argument ignores Valerie's description of the events, including, the failure to crate the dog or wash the peanut butter off Aaron, her history of alcohol abuse, including periods when she was semi-conscious, her attitude toward other recent episodes of inattention and neglect as reported by neighbors, and her acknowledgement that Zeus posed some level of danger to the children by virtue of his size, if not his response to Justin. These facts and other evidence set forth in our factual summary amply support a finding that Valerie's conduct demonstrates a knowing and reckless disregard for the safety of her young children over an extended period during Justin's deployment at sea and constitutes criminal negligence.
III. Current Risk of Harm
Justin also contends the true findings under subdivision (f) must be reversed because the Agency failed to show that there remains a present risk of danger to Aaron's siblings as a result of Valerie's negligence. Citing the dissent in Ethan C., he argues that "[b]efore dependency jurisdiction may be asserted over any child, there must either be present harm from which the child suffers or a substantial risk of future harm to the child based on presently existing conditions." The Agency responds that nothing in the express language of subdivision (f) requires such a finding and there is no conflict between subdivision (f) and section 300.2. This question is also before the Supreme Court in Ethan C.
We need not address the issue because the court's true finding under section 300, subdivision (b), applied to Valerie and sustained allegations that the children had suffered, or there was a substantial risk that the children would suffer, serious physical harm or illness if the juvenile court did not assume jurisdiction.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.