In re P.N. CA2/5 ( 2020 )

Filed 12/29/20 In re P.N. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
In re P.N., a Person Coming Under B305853
the Juvenile Law.
(Los Angeles County
___________________________________ Super. Ct. No.
LOS ANGELES COUNTY 19CCJP01816B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Brackelmanns, Juvenile Court Referee.
Affirmed.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and David Michael Miller, Deputy County
Counsel, for Defendant and Appellant.
2
J.B. (Mother) appeals from a juvenile court order asserting
dependency jurisdiction over her infant son P.N. shortly after the
court asserted jurisdiction over P.N.’s older brother—based on
evidence the children’s father beat Mother with a loaded
handgun. We are asked to decide whether substantial evidence
supports the juvenile court’s finding that P.N. was at substantial
risk of being abused or neglected as a result of the parents’
domestic violence.
I. BACKGROUND
A. The Violent Assault and the Ensuing Dependency
Proceedings Regarding P.N.’s Sibling
On February 19, 2019, Mother called 911 to report a violent
attack by Father. Mother, then pregnant with P.N., told
responding deputies from the Los Angeles County Sheriff’s
Department that a verbal argument with Father escalated into
physical violence. Specifically, while Mother was holding her
three-month old son K.N., Father hit her twice with a handgun
(later found to be loaded), once in the leg and once in the
forehead, knocking her to the floor. Then, when Mother was
down on the ground, Father punched Mother multiple times
before fleeing the scene. The sheriff’s deputies observed a cut on
Mother’s right leg and swelling on her forehead.
Shortly thereafter, the Los Angeles County Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to assume dependency jurisdiction over
K.N. (P.N., the child at issue in this appeal, had not yet been
born.) When interviewed by a Department social worker, Mother
confirmed several aspects of the domestic violence episode as
reported by the responding deputies, but she denied Father
3
struck her with a handgun, caused the cut on her leg, knocked
her to the floor, or caused swelling to her forehead. Mother also
claimed there had not been any prior physical abuse between her
and Father.1
In mid-September 2019, the juvenile court sustained the
petition’s allegation that K.N. was at substantial risk of suffering
serious physical harm as a result of the domestic violence
between Mother and Father. The court removed K.N. from
Father’s care and released him to Mother. The court ordered
Father to stay away from Mother and K.N. and directed Father
to participate in a 52-week domestic violence counseling
program.2
B. P.N.’s Dependency Petition and Subsequent
Proceedings
Mother gave birth to P.N. in September 2019, less than
three weeks after the juvenile court sustained the dependency
petition for K.N. Within days of his birth, the Department began
an investigation after receiving a referral alleging general neglect
of P.N. by his parents.
1
As Mother acknowledges in her opening brief in this court,
a subsequent report prepared by the Department, discussed post,
would contradict this assertion.
2
Four days later, Father pled no contest to a misdemeanor
charge of domestic violence (Pen. Code, § 273.5). The trial court
placed Father on probation for three years, instructed him to
adhere to the terms of a criminal protective order, and, consistent
with his juvenile court case plan, ordered him to complete 52
weeks of domestic violence counseling.
4
A social worker spoke to another social worker working at
the hospital where P.N. was born (and where he remained for a
time, suffering from respiratory distress syndrome). The hospital
social worker said she received a call from Mother in mid-October
(i.e., after the dependency court assumed jurisdiction over P.N.’s
brother and ordered no contact between Mother and Father).
During that call, Mother asked if she and Father could visit P.N.
together. When the hospital social worker said no, Mother got
upset and hung up the phone abruptly.
The investigating social worker also interviewed Mother by
phone. Mother told the social worker that Father’s “whereabouts
are unknown” and refused to provide contact information for him.
When the social worker asked if Father was enrolled in court-
ordered services, however, Mother said Father was enrolled in
classes but she could not recall which ones. The social worker
went to Father’s last known address but did not find him there
and was otherwise unable to reach him.
On October 30, 2019, the Department petitioned for
dependency jurisdiction over P.N. The three-count petition
included one count alleged under Welfare and Institutions Code
section 300, subdivision (j).3 That count, count j-1, alleged the
court had assumed jurisdiction over P.N.’s brother as a result of
“the mother and father engaging in a violent altercation and the
mother’s failure to protect [P.N.’s brother].” The j-1 count further
alleged P.N. was at substantial risk of neglect or abuse as a
result of this same violent conduct and the failure to protect from
violence. At an initial hearing on the petition, the juvenile court
3
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
5
detained P.N. from Father and released him to Mother pending
further dependency proceedings.
The Department submitted a report in advance of the
jurisdiction and disposition hearing. It summarized the salient
facts of Father’s violent attack on Mother in February 2019 and
further revealed there had been “another occasion” (no date
provided) when Mother and Father were arguing and Father
choked Mother while P.N.’s brother was nearby. Mother did not
call the police when this other episode of domestic violence
occurred.
The Department’s jurisdiction report also recounted the
particulars of another interview with Mother and highlighted
facts that led the Department to suspect she was still in contact
with Father. When Mother spoke with a Department
investigator, she denied (contrary to evidence) that there was a
restraining order against Father. She also stated, contrary to the
police report for the earlier attack in February 2019, that Father
did not pull out a gun during that attack. Mother additionally
claimed Father had never met P.N. and she had no current
contact information for Father. The jurisdiction report further
detailed a visit by Department personnel to Mother’s home: a
three-bedroom, two-bathroom apartment in a gated complex
(which prevented unannounced visits). Mother declined to
permit the Department to inspect one of the locked bedrooms
during the visit (she claimed it was her roommate’s who was not
home) and men’s shoes were observed in the other bedrooms.4
4
The apartment was a two-story apartment, and when the
visiting social worker and Mother were downstairs, the social
worker could hear someone walking around upstairs. When the
social worker pointed this out, Mother sent a text message on her
6
Although the Department remained uncertain of Father’s
whereabouts and expressed concern Mother was in
communication with Father, the report stated the Department
had not been able to confirm its suspicions.
According to the jurisdiction report, P.N. appeared “healthy
and developmentally on target” and Mother was actively
participating in her existing case plan by attending domestic
violence, parenting, and anger management counseling. The
Department recommended the court assume jurisdiction over
P.N., leave him in Mother’s custody, but detain him from Father
who still had not made contact with the Department.
C. The Jurisdiction Hearing
In mid-January 2020—just four months after the juvenile
court sustained the dependency petition concerning P.N.’s older
brother—the court held a jurisdiction hearing to consider the
dependency petition filed for P.N. The court received the
pertinent Department reports in evidence, plus a letter offered by
Mother from her counseling agency that stated she had “truly
been a good client” who regularly participated in all of her classes
and who continued to participate in a parenting class even after
she completed the course of instruction.
Arguing the matter, counsel for P.N. recommended the
court sustain the section 300, subdivision (j) count in the petition,
the Department asked the court to sustain the petition in full,
phone and the noises stopped. Mother then said she needed to
feed the children and ended the visit. In June 2019, Father had
applied for food stamps and listed Mother’s address as his
mailing address.
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and Mother requested the court dismiss the petition in its
entirety. The juvenile court sustained only the section 300,
subdivision (j) count, with an amendment by interlineation to
remove an express reference to Mother failing to protect P.N.’s
brother.5 In brief remarks after announcing its decision to
sustain the j-1 count, the court said: “I do think [Father] is
dangerous and should not be exposed to these children. And
[Mother] is going to continue to submit to the jurisdiction of the
court. She’s already doing the case plan on the sibling and she
does seem to really be making strides in her case plan.”
II. DISCUSSION
The juvenile court’s exercise of section 300, subdivision (j)
jurisdiction over P.N. was appropriate. Ample precedent
establishes domestic violence between parents in the presence of
a child can provide a proper basis for jurisdiction under section
300, subdivision (b)(1), and there is accordingly no dispute that
P.N.’s sibling (K.N.) was abused or neglected—which is the first
element of a section 300, subdivision (j) showing. There is also
substantial evidence supporting the juvenile court’s finding on
the second element of a subdivision (j) showing, namely, that P.N.
himself was at substantial risk of neglect or abuse at the time of
the jurisdiction hearing. P.N. was the same gender and very
close to the same age as his older brother, the earlier violence
between the parents was particularly egregious (involving a
5
As amended, the j-1 count alleged P.N. was at risk of harm
due to Father’s violence against Mother in the February 2019
incident and because Mother allowed Father to reside in her
home and have unlimited access to P.N.’s brother.
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highly dangerous assault with a loaded firearm that erupted
while Mother was holding P.N.’s then-infant brother), and there
was good reason for the juvenile court to believe Mother had not
abandoned any desire to remain in contact with Father.
A. Applicable Law and Standard of Review
Section 300, subdivision (j), authorizes a juvenile court to
assume dependency jurisdiction over a child when the following
two requirements are met: “[t]he child’s sibling has been abused
or neglected, as defined in subdivision [(b)(1) or other
subdivisions],6 and there is a substantial risk that the child will
be abused or neglected, as defined in those subdivisions.” Section
300, subdivision (j) states courts should consider, when deciding
whether to assert jurisdiction, 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 factors the
court considers probative in determining whether there is a
substantial risk to the child. (§ 300, subd. (j).)
“The broad language of [Section 300,] subdivision (j) clearly
indicates that the trial court is to consider the totality of the
circumstances of the child and his or her sibling in determining
whether the child is at substantial risk of harm, within the
meaning of any of the subdivisions enumerated in subdivision (j).
6
Under section 300, subdivision (b)(1), a child is a dependent
child when “[t]he 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 . . . .” (§ 300, subd.
(b)(1).)
9
The provision thus accords the trial court greater latitude to
exercise jurisdiction as to a child whose sibling has been found to
have been abused than the court would have in the absence of
that circumstance.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766,
774 (I.J.).) “The more severe the type of sibling abuse, the lower
the required probability of the child’s experiencing such abuse to
conclude the child is at a substantial risk of abuse or neglect
under section 300. If the sibling abuse is relatively minor, the
court might reasonably find insubstantial a risk the child will be
similarly abused; but as the abuse becomes more serious, it
becomes more necessary to protect the child from even a
relatively low probability of that abuse.” (Id. at 778.)
When undertaking our review of the juvenile court’s
jurisdiction findings under Section 300, subdivision (j) in this
case, “‘we determine if substantial evidence, contradicted or
uncontradicted, supports them.’” (I.J., supra, 56 Cal.4th at 773.)
B. There Is No Dispute That Dependency Jurisdiction
Over P.N.’s Brother Was Proper, and Substantial
Evidence Supports the Finding of a Continued
Substantial Risk to P.N. Himself
P.N.’s older brother was found to have been neglected by
his parents as defined by section 300, subdivision (b), based on
the Father’s violent attack on Mother in February 2019. No
party to this appeal argues otherwise. The sole contested issue,
therefore, is whether P.N. remained at substantial risk of abuse
or neglect at the time of the jurisdiction hearing.
The factors section 300, subdivision (j) requires a court to
consider when deciding whether jurisdiction is appropriate all
support the juvenile court’s decision here. P.N. and his brother
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were very close in age, still quite young, and the same gender.
The nature of the abuse and neglect of P.N.’s brother was
egregious—a violent assault on Mother that knocked her to the
floor while holding K.N. and involved a loaded firearm—and that
means it was incumbent on the juvenile court to protect P.N.
“from even a relatively low probability” (I.J., supra, 56 Cal.4th at
778) of similar abuse or neglect. Though Mother argues that
probability was non-existent because the parents were no longer
in contact and there was accordingly no evidence that the
domestic violence was in her words “ongoing and likely to
continue,” we see the record quite differently—especially through
the substantial evidence lens.
Even after Father was restrained from having no contact
with Mother (during the dependency proceedings involving P.N.’s
brother), Mother still expressed interest in visiting P.N. in the
hospital with Father and she continued to minimize the severity
of Father’s earlier handgun attack when interviewed by the
Department. This is evidence that Mother had not abandoned
any desire to see Father, including in P.N.’s presence. Even more
than mere desire, there was also evidence suggesting Father and
Mother may be occasionally cohabitating (or at least talking) in
violation of the restraining order: Father’s use of Mother’s
address as his mailing address, the suspicious circumstances of
the Department’s home visit, and Mother’s claim to know that
Father had enrolled in some court-ordered services. With no
evidence Father had completed domestic violence programs
ordered as part of his case plan (or even made contact with the
Department at all), we are satisfied the requisite substantial risk
to P.N. remained and the juvenile court appropriately invoked its
section 300, subdivision (j) jurisdiction.
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DISPOSITION
The juvenile court’s jurisdiction findings are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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