Opinion
B228378 B230695 x-ref. B213547
11-30-2011
In re J.H., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MICHELLE B., Defendant and Appellant.
Mitchell Keiter, under appointment by the Court of Appeal, for Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK75099)
APPEAL from orders of the Superior Court of Los Angeles County. Jacqueline H. Lewis, Commissioner. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Respondent.
The issues in these consolidated appeals are whether the juvenile court erred in continuing the placement of the children outside the mother's home, in limiting the mother to monitored visits and in terminating jurisdiction over one of the children. We find no errors and affirm the court's orders.
BACKGROUND
The children involved in this case are 10-year-old J.H. and his half-brothers R.R., age 5, and C.D., age 11 months. Michelle B. is the children's mother (Mother). The children came to the attention of the Department of Children and Family Services (DCFS) in October 2008, after J.H. went to his school nurse to obtain an ice pack for his swollen arm. J.H. told the nurse that Mother's boyfriend had given him a "'whoopin'" the night before. The nurse observed bruises and swelling on J.H.'s arm and called the DCFS.
Following an investigation, the DCFS filed a petition requesting that the three brothers be declared dependent children of the court under Welfare and Institutions Code section 300, subdivisions (a), (b), (g) and (j). At the detention hearing the court considered the petition, the report summarized above and the arguments of counsel and found a prima facie case for detaining the minors. The court placed C.D. with his father and J.H. and R.R. with extended family members. Mother was allowed monitored visits with all three children.
All statutory references are to the Welfare and Institutions Code.
The court subsequently adjudicated the three boys dependents of the court under section 300, subdivisions (a), (b), (g) and (j). The court terminated jurisdiction over R.R. and C.D., placed them with their fathers and awarded the fathers sole physical and legal custody of the children with weekly, monitored visitation for Mother. It retained jurisdiction over J.H. and continued his placement with a family member. The court found by clear and convincing evidence that despite the DCFS "making reasonable efforts to enable the child's safe return home," "[s]ubstantial danger exists to the physical health of [the minor] . . . and there is no reasonable means to protect [the minor] without removal from parent's or guardian's physical custody." The court ordered family reunification services and appropriate conjoint counseling for Mother and J.H. It also ordered that Mother complete a DCFS approved program of "parenting education, preferably a 52-week class, if the Department can identify one." Mother filed a timely appeal from these orders.
In an unpublished opinion filed in November 2009 (In re J.H. (Nov. 5, 2009, B213547) [nonpub.opn.] (J.H.I)), we affirmed jurisdiction over the three children but held that the evidence did not support removal of the children from Mother's home, terminating jurisdiction over R.R. and C.D. and awarding sole physical and legal custody of those two children to their fathers. (Id. at pp. 4, 7.) Our disposition stated: "The dispositional orders removing the children from their mother's home, terminating jurisdiction over R.R. and C.D. and awarding sole physical and legal custody to their fathers are reversed. The children shall be returned to their mother's home unless circumstances occurring after the dispositional orders warrant other remedies. On remand the court shall order family reunification services for Mother as to R.R. and C.D. In all other respects, the disposition orders are affirmed." (Id. at p. 7; italics added.)
The court reinstated jurisdiction over R.R. and C.D. as directed by our opinion, but did not return the children to Mother's home because on Christmas Day 2009 Mother and her boyfriend "brutally beat a paraplegic while he was sitting in his wheelchair." Based on this outburst of physical violence against a vulnerable individual, the DCFS requested that the court continue the children's placement outside Mother's home.
At the hearing on the children's placement, the court heard undisputed evidence that on Christmas Day Mother and her boyfriend arrived at the home of J.H.'s caretaker, Esther Nelson, uninvited, unannounced and in violation of the rules of Mother's monitored visitation, which prohibited Mother and her boyfriend from visiting J.H. at the caretaker's home. The parties and eye witnesses gave conflicting accounts as to who initiated the brawl. There was substantial evidence, however, that Mother spit on James Nelson (James), Esther's paraplegic son, and that Mother and her boyfriend beat James severely about the head and face causing him to bleed profusely. A neighbor who witnessed the fight testified that she saw Mother's boyfriend and James engaged in a lot of "vulgar arguing" in front of Esther's house. Mother walked up to James as he sat in his wheelchair, spit on him, then hit him in the face. The neighbor next saw Mother's boyfriend hit James, and she testified that "both [mother and boyfriend] were hitting him[.] . . . There was blood everywhere." In the neighbor's statement to the DCFS worker, she stated that Mother was hitting James "in the face and then here comes the other guy [Mother's boyfriend] and he punched [James] in the face and it raised him a good eight inches off the ground and then they were both hitting on him . . . ." The beating ended when James pulled a gun and shot Mother's boyfriend several times in the leg. Esther testified that after the beating James had cuts over his eye, some broken teeth "and his clothes was just drenched in blood." Counsel for the children showed Esther some photographs of James that were presumably taken after the beating but asked her no questions about them. The court admitted the photographs into evidence over Mother's objection to lack of foundation and authenticity.
It was undisputed that J.H. was playing inside a neighbor's house when the fight erupted and the shots were fired. He told police and a DCFS worker that he heard the shots but stayed in the house and did not look outside.
In November 2010, at the conclusion of the testimony and submission of the documentary evidence, the court found "by clear and convincing evidence . . . that there is a substantial danger if the children were returned home to their physical health, safety, protection, physical and emotional well-being." The court placed R.R. with his father and placed J.H. and C.D. in the custody of the DCFS for suitable placement. Mother was awarded family reunification services and monitored visits with all three children. Mother filed a timely appeal from the removal orders and the denial of unmonitored visits.
The court's statement negates Mother's contention that the court failed to apply the standard of "clear and convincing evidence" in deciding whether to continue the children's removal from her custody.
While that appeal was pending, in January 2011 the court terminated jurisdiction as to R.R. and made a family law order awarding his father sole physical and legal custody and awarding Mother monitored visits once per week. Mother filed a timely appeal from the order terminating jurisdiction over R.R. We consolidated the appeals.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S DECISION TO REMOVE THE CHILDREN FROM MOTHER'S CUSTODY
The juvenile court found that the Christmas day melee warranted the children's continued removal from Mother's home. Mother contends that the evidence does not support the court's finding of "substantial danger" to the children if they are returned to her custody. (§ 361, subd. (c).) We disagree.
A. Evidence Admitted And Excluded
Mother contends the court erred in admitting photographs of James, presumably taken after the beating he received from Mother and her boyfriend, and evidence of the physical punishment administered by Mother and boyfriend to the children which led to their being declared dependents of the court in 2008. She also contends the court erred by excluding a letter written by J.H. describing violence, drinking and drug use on the part of R.R.'s father, R.R., Sr., which, Mother contends, would have cast doubt on R.R., Sr.'s testimony regarding Mother's propensity to inflict physical punishment on her children. Alternatively, Mother argues that even if the court's evidentiary rulings were correct, the evidence taken as a whole does not support the trial court's finding under section 361, subdivision (c) that there is a "substantial danger" of harm to the children if they are returned to her home.
Mother's brief contains no record citation to this purported testimony by R.R., Sr.
1. Original Evidence of Corporal Punishment
Mother argues that the court erred in admitting and considering the evidence that led to the court taking jurisdiction over the children, including evidence of the corporal punishment she and her boyfriend inflicted on J.H. and his half-brother, R.R., with belts and ropes. In our previous opinion we stated that the children "shall be returned to their mother's home unless circumstances occurring after the dispositional orders warrant other remedies." (J.H.I, supra, B213547 at p.7.) Mother incorrectly interprets our ruling to mean that in any future hearing on the children's placement, the court can consider only events occurring after the initial order removing the children from her home. Nothing in our previous decision precluded the court from considering the facts that originally led to the court's jurisdiction over the children as they shed light on the new events. Our opinion did not overrule the court's jurisdictional findings, only the dispositional orders removing the children from Mother's home. (Ibid.)
2. Photographs and J.H.'s Letter
We agree that the court erred in admitting the photographs over Mother's objection of lack of foundation and authenticity. There was no evidence when the photos were taken, or that the person in the photos was James, or that the photos accurately depicted how James looked after the beating. (See People v. Beckley (2010) 185 Cal.App.4th 509, 514-515.) The court did not err, however, in excluding J.H.'s letter describing R.R., Sr.'s drug and alcohol use and domestic violence. Although the court excluded the letter on the erroneous ground that it was not authenticated, it should have been excluded as hearsay because it was proffered for the truth of the matters asserted in the letter.
In any case, even if both rulings were error, they did not "result in a miscarriage of justice." (Evid. Code, §§ 353, subd. (b) [erroneous admission of evidence], 354 [erroneous exclusion of evidence].) The evidence was undisputed that a fight took place on Christmas day involving Mother, her boyfriend and James. The neighbors testified that Mother and boyfriend initiated the fight and gave details of the beating and injuries suffered by James. Thus, the photographs were only a pictorial representation of the testimony. With regard to the letter, there was evidence independent of R.R., Sr., regarding Mother's propensity for beating her children, so impeaching R.R., Sr.'s credibility would have gained Mother nothing. Furthermore, there is no indication in the record that the court relied on R.R., Sr.'s opinions about Mother's propensity for violence. We conclude, therefore, that it is not reasonably probable that the court would have reached a decision more favorable to Mother even had the evidentiary rulings been in Mother's favor.
B. Risk Of Harm
Before the court may order a child removed from his or her parent, it must find by "clear and convincing evidence" that the child would be at a substantial risk of harm if returned home and there are no reasonable alternatives to removal. (§ 361, subd. (c)(1).) The child need not actually be harmed before removal is appropriate; "the focus of the statute is on averting harm to the child" not waiting to act until the harm has been done. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136.)
Mother relies on In re Basillio T. (1992) 4 Cal.App.4th 155, in which the court reversed the order removing the children from their parents based on the parents' domestic violence. In doing so, the court noted: "While these incidents presumably occurred in or near the minors' presence, it is significant that neither incident directly affected either minor physically, i.e. the adults were fighting with each other and not directing their anger at the minors or abusing them." (Id. at p. 171.) Mother points out that in our case, as in Basillio T., "the adults were fighting with each other"; they were not physically endangering J.H., who was safe in a neighbor's house unaware of the battle going on outside.
J.H. heard the shots but did not know the shooting involved his mother and her boyfriend.
Basillio T. is distinguishable. The parents in that case were in a position similar to Mother's position in this case when the court first adjudged her children dependents of the court and ordered them removed from her custody. In both cases the appellate courts held that the evidence was sufficient to support jurisdiction over the children under section 300, subdivision (b) (Basillio T., supra, 4 Cal.App.4th at pp. 168-169; J.H.I, supra, B213547 at p. 4) but not sufficient to remove them from their parents' custody (Basillio T., supra, 4 Cal.App.4th at p. 171; J.H.I, supra, B213547 at p. 3). The similarity ends there. Although Mother's initial conduct, like the conduct of the parents in Basillio T., did not provide a sufficient basis for removing the children, Mother's subsequent conduct, in light of her previous conduct, provided a basis for removing the children from her custody. The court was not unreasonable in concluding that the Christmas Day attack demonstrated that a year of anger management classes and parent education had not been entirely successful. From these facts the court could reasonably conclude that Mother had failed to make substantial progress in her parenting and anger management programs so that returning the children to her would be detrimental. The fight on Christmas Day is particularly troubling because Mother deliberately went to the caretaker's home in violation of the DCFS visitation rules and after the caretaker had told her not to come.
Given the new evidence of Mother's behavior, the court's conclusion that Mother has "unresolved 'anger management issues'" finds support in the record. Although her anger was not directed at the children, the Christmas Day incident combined with her earlier behavior supports the court's conclusion that the children's safety requires their continued placement outside of their mother's home.
C. There Are No Reasonable Alternatives To Removing The Children
Mother contends that the evidence was insufficient to show that no reasonable alternatives existed to removing the children from her care and custody. We disagree.
Mother's own evidence showed that she was attending anger management classes at the time of the Christmas Day altercation and she had been attending those classes for the previous eight months. Given that those classes appeared to have insufficient effect on changing Mother's behavior, it would not have been reasonable to return the children. Nevertheless, after ordering the continued removal of the children, the court ordered an additional six months of reunification services and that those services "include for the mother individual counseling to address parenting and anger management issues . . . to see if we can make real progress here and perhaps return the children."
II. THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING MOTHER UNMONITORED VISITS
Mother argues that the court erred in not changing her visitation from monitored to unmonitored. Given Mother's recent display of violence and her defiance of the existing rules for monitored visitation, the court acted well within its discretion in denying Mother unmonitored visits.
III. TERMINATION OF JURISDICTION OVER R.R.
The court made its order continuing removal of the children from Mother in November 2010. In January 2011, while that order was on appeal (see discussion above), the court terminated jurisdiction over then 8-year-old R.R., and gave his father, R.R., Sr., sole legal and physical custody subject to monitored visits by Mother.
In May 2011, in violation of California Rules of Court, rules 8.112 and 8.116, Mother incorporated a request for a stay of the termination order in her opening brief on appeal. We deny the stay.
Juvenile courts exercise discretion in terminating jurisdiction over a dependent child under section 362.4. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) Mother contends the court abused its discretion in terminating jurisdiction because she was denied reunification services with R.R. and the court relied on "incorrect information" about the legal history of the case. Neither of these contentions have merit.
A. Mother Received Reunification Services Before And After The Christmas Day Beating
Mother maintains she did not receive the family reunification services as to R.R. that we ordered in our November 2009 opinion. The record shows, however, that Mother attended parenting classes between April 2009 and February 2010 and enrolled in an anger management program in April 2009 which she completed in March 2010. She was attending those classes in December 2009 when she and her boyfriend attacked James in his wheelchair. Mother does not identify other services she should have received and does not explain how she was prejudiced by not receiving them.
B. Assuming That The Court Relied On Incorrect "Legal History" About J.H. In Terminating Jurisdiction Over R.R., Mother Has Not Shown Prejudice
Finally, Mother contends that two interim review reports submitted by the DCFS in December 2010 and January 2011 contain incorrect information in their "Legal History" sections regarding the dates of the 12-month and 18-month family reunification hearings for J.H. Assuming this is correct, Mother fails to explain how the court's consideration of those dates prejudiced her opposition to termination of jurisdiction over R.R. and we see none.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J. We concur:
CHANEY, J.
JOHNSON, J.