In re Jason S. CA2/2 ( 2013 )

Filed 7/8/13 In re Jason S. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JASON S., a Person Coming Under B242780
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK71927)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JASON S.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Marguerite D. Downing, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
Jason S. (Father) appeals the disposition in a dependency case involving his son,
also named Jason. (Welf. & Inst. Code, 395.)1 Father is incarcerated while awaiting
trial on a murder charge. Father‟s challenge to dependency jurisdiction fails. The
evidence amply supports findings that Father is a violent person who caused the death of
a minor and poses a substantial risk to Jason‟s health and safety.
FACTS
Father was convicted of inflicting corporal injury on a spouse in 2007. Jason was
born in December 2007, and detained by the Department of Children and Family Services
(DCFS) three months later. The juvenile court sustained allegations that Jason‟s mother
Irma J. (Mother) abuses amphetamines, used drugs and alcohol during her pregnancy,
and the parents engaged in domestic violence. Father was ordered to complete a 52-week
domestic violence program. Both parents exhibited signs of mental instability. Jason
was placed with his paternal grandparents (PGPs).
In September 2008, Father was given custody of Jason, on condition that they both
reside with the PGPs. Jason received excellent care from the PGPs, Father complied with
the case plan, and dependency jurisdiction terminated in January 2009. Mother stopped
visiting Jason in April 2008. Her whereabouts were unknown.
In January 2012, Father was arrested on suspicion of murder. The arrest occurred
in the presence of Jason and his half-brother D., who were taken into protective custody.
According to police, Father learned that his girlfriend Elizabeth I. (Elizabeth) was
romantically involved with 17-year-old F.R., a popular high school athlete. Father drove
to F.‟s home and Elizabeth lured her lover outside. Father argued with F. about the affair,
pulled out a gun and shot F. twice. D. was sitting in the car and “observed the whole
incident.” Father and Elizabeth fled with D. F. died of his wounds.
At the time of Father‟s arrest, the PGPs were Jason‟s primary caregivers. Though
the PGPs previously asked Father to give them full custody, they did not follow through
1 Unlabeled statutory references refer to the Welfare & Institutions Code.
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due to the legal costs. Jason was detained by DCFS, since neither of his parents were
available to care for him, and was placed with the PGPs.
A petition was filed on Jason‟s behalf. As amended, it alleges that Father placed
Jason‟s half-brother D. in a detrimental and endangering situation by shooting and killing
a minor child in his presence. Father‟s conduct endangers Jason‟s health and safety and
places him at risk of harm.2 The court found a prima facie case for detaining Jason, who
remained in the home of the PGPs. Father and Mother were authorized to have
monitored visitation, though Father was incarcerated. Mother was ordered to have
random drug tests. Father denied the allegations in the petition.
A jurisdiction report was received from DCFS on February 10, 2012. Jason
continued to reside with the PGPs, where he has spent his whole life and receives
excellent care. He is bonded to the PGPs, who want to provide him with a permanent
home. When interviewed in jail, Father declined to discuss the shooting, saying only that
he did not put Jason in a dangerous situation. Father opposed reunification services for
Mother because she has no interest in her son and uses drugs. He would like the PGPs to
become legal guardians or adopt Jason.
Mother indicated that she last used drugs, specifically marijuana, one month
earlier; however, she tested positive for methamphetamines and alcohol on
January 24, 2012. She is on probation in two cases for petty theft and having an open
alcohol container in a car. She denied domestic violence with Father. During her
interview, Mother‟s speech was slurred and she was difficult to understand. She did not
visit Jason because she failed to complete court-ordered programs in the first DCFS
proceeding. She said, “I didn‟t think I was a fit parent, now I‟m stable.” She began using
drugs when she was 16 or 17. She was going to start parenting classes. Mother wished
to have Jason placed with her, although she has never had unmonitored visitation with
2 The amended petition alleges that Mother has a history of substance abuse and
tested positive for alcohol and methamphetamines on January 24, 2012.
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Jason and has not seen the boy since he was three or four months old. She acknowledged
that Jason does not consider her to be his mother.
Elizabeth was interviewed and stated that she saw Father shoot F.R. “in front of
my son and me,” referring to D. She denied knowing Father‟s intentions and indicated
that Father forced her to call F. out of his house, so he could shoot the boy. She
described Father as “very jealous and violent”; he threatened to take D. away and give
him up for adoption. She “has always been afraid” of Father, which is why she did not
call police after the shooting. She feels safe in jail. D. was exposed to domestic violence
in the family home.
The paternal grandmother (PGM) told DCFS that the family was in shock after the
killing. As a youth, Father had hallucinations and put his head through a window: he
was diagnosed with attention deficit disorder when he was 10 or 12 years old, and was
diagnosed as bi-polar when he was 21. He is irritable and short-tempered, and was
prescribed psychotropic medication, but does not use it. The PGM reported that Father
and Elizabeth “have big arguments” that result in walls being punched. She disclosed
that Father has a seven-month-old baby named Andres. Jason‟s mother has used drugs
since age 16, and admitting using them during her pregnancy with Jason. Mother‟s drug
usage is unresolved and she barely knows her own child.
The paternal grandfather (PGF) was shocked by Father‟s situation and the
investigation. He wanted Father to take his medications, but as an adult, Father could
refuse it. The PGF was unwilling to leave Jason with Father. Father and Elizabeth often
argued in Jason‟s presence, but the PGPs would have them leave the house to prevent
Jason from being exposed to domestic violence. The PGF stated that Mother has a long,
unresolved addiction to drugs: when Mother resided at his home, the PGF “found a
crystal methamphetamine pipe under the baby Jason‟s food.”
Jason‟s maternal grandmother stated that Father was verbally and physically
abusive to Mother, even hitting Mother when she was pregnant. She described him as a
“bad person” with an explosive temper. She believed that Mother is no longer using
drugs, while acknowledging that her daughter has a history of drug usage.
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D.‟s maternal grandmother stated that her daughter Elizabeth and Father came to
her home after the shooting and seemed nervous. Elizabeth, crying, asked her to take
care of D. forever. After her arrest, Elizabeth told her mother that Father forced her to
lure F. out of home, then said, “I told you that you were going to pay for it” and shot him
twice. Elizabeth described Father as aggressive, and her mother saw bruises on
Elizabeth‟s arms, eye and legs.
Mother was drug testing: she had negative results on February 17, failed to appear
on March 5, and tested positive for alcohol on March 21. Jason visited Father in jail and
was confused because he could not have physical contact with Father. Mother‟s visits
went well, although Jason “demonstrated resistance to the most recent visitation and is
displaying acting out behaviors at school, including biting, on the days after each visit.”
The PGPs reported that Father began using marijuana at age 16 to “self-medicate” and
avoid using prescribed psychotropic medications.
Jason was playful, energetic and joyful, and interacts positively with the PGPs.
He has a strong attachment to them and accepts their parenting: they have been his
primary caretakers since he was two days old. Hospital reports confirmed that Jason was
exposed in utero to methamphetamine, and the PGPs believe that he was exposed to
alcohol as well. Other concerns included the trauma of Father‟s arrest in Jason‟s
presence; three lengthy police searches of the PGP‟s home; the handcuffing of the PGPs;
and the removal of D. from the home.
The jurisdiction hearing was held on April 17, 2012. Father argued that the
evidence shows only that he was arrested and there are no witness statements showing his
connection with a crime. He asked the court to dismiss the allegations that he shot and
killed F.R. because DCFS failed to show that Father caused the death. DCFS countered
that Father was arrested for the murder of a 17-year-old victim, and Elizabeth told DCFS
that Father committed the killing in front of her and D. She also told her mother that she
was forced to lure F. out of the house, whereupon Father told him he would pay and shot
him twice.
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The court sustained the petition, finding that Father “allegedly” shot and killed a
17-year-old unrelated male in the presence of D., a crime for which Father was arrested.
Father‟s commission of the “alleged” murder poses a substantial risk of harm to Jason
and shows an inability to adequately supervise or protect Jason; further, Father caused the
death of a child, thereby endangering Jason‟s safety. The court dismissed a count
alleging that Father placed Jason‟s half-sibling in an endangering situation by shooting F.
in D.‟s presence. As to Mother, the court sustained an allegation that she has a history of
substance abuse and currently abuses amphetamines and alcohol, as shown by a recent
drug tests, which endangers Jason‟s physical and emotional health and safety.
DCFS asked the trial court to reconsider wording it added to the petition that
Father “allegedly” shot and killed F.R. and the “alleged” murder endangers Jason. DCFS
argued the wording compromised the court‟s jurisdictional finding, making it “unclear
whether the court has found, by a preponderance of the evidence, that the father actually
shot the minor, [F.].” DCFS asserted that it presented the court with sufficient evidence
upon which to find that Father actually shot and killed F., placing Jason at risk of harm.
Father contested the motion and asked the court to reconsider its ruling and “dismiss the
petition.”
At a hearing on June 22, 2012, the court granted the petition for reconsideration
over Father‟s objections and removed the words “allegedly” and “alleged” from the
sustained counts. The jurisdictional finding now reads that Father shot and killed F. and
committed murder. At the same hearing, the court rendered its disposition. DCFS and
Jason‟s attorney asked the court to deny reunification services because Father caused the
death of a minor. Father argued that he has not been convicted and the court cannot deny
reunification services simply because he is incarcerated.
The court declared Jason a dependent of the court and found that there is a
substantial danger if he were returned to parental custody. The court ordered
reunification services for Mother, requiring her to complete a drug rehabilitation program
with random drug testing, and to complete individual counseling to address case issues.
The court also ordered counseling for Jason, conjoint with Mother if his counselor finds it
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appropriate. Mother was given monitored visitation, with DCFS having discretion to
liberalize. Father was denied reunification services because he caused the death of a
child. Father timely appeals from the disposition.
DISCUSSION
1. Modification Order
An order made by the dependency court “in the case of any person subject to its
jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet
and proper.” (§ 385.) Section 385 authorizes the court, without new evidence, to
“reconsider the substance of a previous order the court considers to have been
erroneously, inadvertently or improvidently granted.” (Nickolas F. v. Superior Court
(2006) 144 Cal.App.4th 92, 116.) The power to modify a prior order is permitted by the
state Constitution to ensure the orderly administration of justice, so long as there is notice
and an opportunity to be heard. (Id. at pp. 116-117.) This Court recognizes the juvenile
court‟s power to correct an erroneous ruling. (In re Jamika W. (1997) 54 Cal.App.4th
1446, 1450.)
DCFS brought a motion for reconsideration, giving Father notice of its intention to
ask the court to change its jurisdictional findings to remove the word “alleged.” At the
hearing, Father‟s attorney said, “If the court is going to reconsider, the court should
dismiss” the allegations against Father. The court modified its prior order, over Father‟s
objections. Father had notice and an opportunity to be heard, satisfying due process
considerations. (Nickolas F., supra, 144 Cal.App.4th at pp. 117-118.) The juvenile
court‟s modification “will not be disturbed on appeal absent a clear abuse of discretion.”
(Id. at pp. 118-119.)
Father maintains that the court erred when it modified its findings because
“Nothing had changed. The [criminal] allegations were still allegations. „Allegedly‟ and
„alleged‟ still applied.” When making jurisdictional findings, the juvenile court does not
address criminal culpability: “the standard of care and the burden of proof in dependency
are lower than in a criminal proceeding.” (Los Angeles County Dept. of Children &
Family Services v. Superior Court (2012) 211 Cal.App.4th 13, 21.) It is not necessary to
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secure a criminal conviction before making jurisdictional findings in a dependency case.
(In re Ethan C. (2012) 54 Cal.4th 610, 630 (Ethan C.).) Section 300 allows the court “to
adjudge a child a dependent if the court finds that the want of ordinary care by the child‟s
parent or guardian caused another child‟s death.” (Ethan C., at pp. 617-618.) As a result,
the juvenile court did not abuse its discretion by modifying its jurisdictional finding to
state that Father “caused the death” of F.R., rather than finding that Father “allegedly”
caused the boy‟s death.
2. Sufficiency of the Evidence
Father challenges the court‟s findings under section 300. “„In reviewing a
challenge to the sufficiency of the evidence supporting the jurisdictional findings and the
disposition, we determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all reasonable inferences from
the evidence to support the findings and orders of the dependency court; we review the
record in the light most favorable to the court‟s determinations; and we note that issues of
fact and credibility are the province of the trial court.‟” (In re I.J. (2013) 56 Cal.4th 766,
773; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
a. Dependency Jurisdiction Lies Regardless of Father’s Claims of Error
At the outset, we observe that “a jurisdictional finding good against one parent is
good against both. More accurately, the minor is a dependent if the actions of either
parent bring her within one of the statutory definitions of a dependent.” (In re Alysha S.
(1996) 51 Cal.App.4th 393, 397, italics added; In re Alexis H. (2005) 132 Cal.App.4th 11,
16; In re P.A. (2007) 155 Cal.App.4th 1197, 1212.) Father concedes that Mother‟s
substance abuse endangers Jason‟s physical and emotional health and safety under
section 300. (AOB 27) As a result, “the court‟s exercise of jurisdiction over the child is
appropriate.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1431.) Jason must be protected
from Mother‟s behavior, regardless of Father‟s conduct, so dependency jurisdiction is
proper.
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b. Jurisdiction Lies Under Section 300(f)3
Section 300(f) specifies that the juvenile court may exercise jurisdiction if “[t]he
child‟s parent or guardian caused the death of another child through abuse or neglect.”
This subdivision was amended in 1996 to delete the requirement of a criminal conviction.
(Ethan C., supra, 54 Cal.4th at pp. 629-630.) Section 300(f) “merely refers to the death
of „another child,‟ and does not specify that the deceased child necessarily must have any
family or custodial connection to the „parent or guardian‟ who caused the death.” (Id. at
p. 636, fn. 18.) Dependency jurisdiction is appropriate even if a parent‟s “lethal
carelessness” does not necessarily amount to criminal behavior. (Id. at p. 636.) There
need only be a “breach of ordinary care.” (Id. at p. 637.)
“[T]he juvenile court may adjudicate dependency under section 300(f) without any
additional evidence or finding that the circumstances surrounding the parent‟s or
guardian‟s fatal negligence indicate a present risk of harm to surviving children in the
parent‟s or guardian‟s custody.” (Ethan C., supra, 54 Cal.4th at p. 618.)4 In Ethan C., a
father failed to secure his year-old daughter in a child seat before a car accident that was
not his fault. (Ethan C., at p. 619.) The juvenile court found that jurisdiction was proper
under subdivisions (b) (due to parental domestic violence and cognitive impairments) and
(f) (due to the child‟s death in the traffic accident). (Ethan C., at p. 621.) The Supreme
Court affirmed because “the father‟s negligent failure to secure his young daughter in a
child safety seat was a substantial contributing cause of her death in an ensuing traffic
accident.” (Id. at p. 618.)
Certainly, if the negligently-caused death of a child in a traffic accident is a
sufficient basis for establishing dependency jurisdiction under section 300(f) (as in Ethan
3 The use of letters following section 300 refers to applicable subdivisions.
4 “[P]rior to 1996, dependency jurisdiction under section 300(f) required the
parent‟s or guardian‟s criminal conviction of causing another child‟s death. The stated
purposes of the 1996 revision were to eliminate the delay attendant on criminal
proceedings, and to substitute a civil (preponderance of evidence) for a criminal (beyond
reasonable doubt) standard of proof.” (Ethan C., supra, 54 Cal.4th at p. 622.)
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C.), the deliberate shooting of an unarmed minor during an argument indicates a present
risk of harm to other children in the shooter‟s custody. “[I]t is „“[t]he enormity of a
death”‟ of a child arising from parental inadequacy that invokes” dependency
jurisdiction. (Ethan C., supra, 54 Cal.4th at p. 634.)
Substantial evidence supports the juvenile court‟s finding that Father caused the
death of another child. In an interview with DCFS, an eyewitness, Elizabeth, stated that
she saw Father shoot F.R. “in front of my son and me.” She did not call police after the
shooting because she is afraid of Father. Elizabeth‟s mother was interviewed and stated
that Elizabeth and Father came to her home after the shooting and seemed nervous.
Elizabeth asked her mother to take care of D. forever. After Elizabeth was arrested, she
told her mother that Father forced her to lure F. out of his home, then shot him twice.
Under a civil dependency standard, this evidence is sufficient to uphold a sustained
allegation that Father caused the death of a 17-year-old child within the meaning of
section 300(f).
c. Jurisdiction Under Section 300(a) and (b)
As we have found, substantial evidence supports the juvenile court‟s finding that
Father caused the death of a child under section 300(f). Father also challenges the
sufficiency of the evidence underpinning the court‟s findings of jurisdiction pursuant to
other subdivisions in section 300. His challenges need not be addressed.
A judgment will be upheld “if the evidence supports the decision on any one of
several grounds[.]” (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875, italics added;
D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1127.) Otherwise stated, “„When
a dependency petition alleges multiple grounds for its assertion that a minor comes within
the dependency court‟s jurisdiction, a reviewing court can affirm the juvenile court‟s
finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that
are enumerated in the petition is supported by substantial evidence. In such a case, the
reviewing court need not consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.‟” (In re I.J., supra, 56 Cal.4th at
p. 773, italics added; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
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If there is any basis for asserting jurisdiction, no reversal of the judgment occurs
even if other bases are improper. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67,
72.) The purpose of the dependency proceeding is “to protect the child, rather than
prosecute the parent.” (In re Alysha S., supra, 51 Cal.App.4th at p. 397.) The courts are
not concerned with each count alleged in the dependency petition: unlike a criminal
prosecution, no prison sentence is meted out for each count. If evidence supports even
one allegation of parental abuse or neglect, the courts must act to protect the child from
harm and assert jurisdiction over the child. Given the gravity of the sustained section
300(f) allegation in this case, the court had to exert jurisdiction to protect Jason and
ensure that Father undergoes all necessary counseling and treatment programs.
In any event, section 300(a) and (b) focus on whether there is a substantial risk
that the child will suffer serious physical harm at the hands of his or her parent. There
can be no doubt that Father is an extremely dangerous person. He refuses to take
prescribed psychotropic medications and instead engages in “self-medication,” according
to his parents. He has a conviction for causing injury to Jason‟s mother, Irma J., and is
reported to have hit Mother when she was pregnant with Jason. He had “big arguments”
with Elizabeth inside the PGPs‟ house, that resulted in walls being punched. Father
forced Elizabeth to lure her 17-year-old lover from his home, so that he could shoot the
boy. Elizabeth described Father as violent and aggressive, and her mother observed
bruises on Elizabeth‟s arms, eye and legs. Father committed the killing in front of his son
D., who was sitting in the car and observed the incident. Father was arrested for murder
in the presence of Jason and his brother. Father has abundantly demonstrated that he has
no self-control, committed the most serious of crimes in front of his child, and poses a
substantial risk to Jason.
3. Denial of Reunification Services
“[T]he general rule is that when a dependent child is removed from the parent‟s or
guardian‟s physical custody . . . family reunification services, must be offered.” (Ethan
C., supra, 54 Cal.4th at p. 626.) Reunification services need not be provided in every
case, however. (Ibid.) “Among the findings that will permit a denial of reunification
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services is that „the parent or guardian . . . has caused the death of another child through
abuse or neglect.‟” (Ibid.; § 361.5, subd. (b)(4).)
When parental misconduct has culminated in a death, the circumstances that
justify removal of the children from parental custody also give rise to a presumption
against reunification. (Ethan C., supra, 54 Cal.4th at p. 634.) A father who killed an
unrelated child when both were minors may be denied reunification services during his
adulthood. (Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 484, 489-490.)
The juvenile court relied on Father‟s role in killing a child when it denied reunification
services. This disposition is an appropriate exercise of the court‟s discretion because
there is no evidence that reunification is in Jason‟s best interests.
Although Jason resides with the PGPs, Father had sole physical custody until the
boy was detained when Father was arrested. Mother now wishes to take custody of
Jason, claiming she has achieved sobriety and is a fit and stable parent. What will happen
to Father and Mother remains to be seen. One thing is clear, however: the court had to
remove Jason from parental custody and have DCFS oversee the child until a decision
can be made that best suits his interests.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J. FERNS, J.*
__________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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