Opinion
A147765
03-06-2017
In re Jeremiah E., A Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. LAURA E. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43154)
This matter is the latest chapter in an ongoing custody dispute—described as "incredibly high conflict" in the family law court—between Laura E. (mother) and Joshua T. (father) with respect to their son Jeremiah E. (born September 2008). Ultimately, the Solano County Health and Social Services Department (Department) became involved, filing a dependency petition in September 2015, after Jeremiah reported that father had hit him with a belt. Once dependency was established in March 2016, both parents appealed, challenging certain aspects of the juvenile court's jurisdictional findings. Father also contested the dispositional order which removed Jeremiah from his custody and placed the minor with mother under a family maintenance plan. While this appeal was pending, in August 2016, the juvenile court terminated dependency jurisdiction and granted sole legal and physical custody of Jeremiah to mother. The Department then filed a motion to dismiss in this court, arguing that the parents' appeals are moot given the termination of the underlying dependency action. We agree with the Department that mother's appeal is moot and thus dismiss it. In contrast, we entertain father's appeal because the jurisdictional findings he challenges were the basis for custody and visitation orders that negatively affect him. (See In re N.S. (2016) 245 Cal.App.4th 53 (N.S.).) However, having reviewed the record in detail—and despite the fact that father has filed over 180 pages of briefing alleging multiple claims of error—we conclude that father's appeal raises no substantial issues of law or fact. We therefore affirm.
I. BACKGROUND
Mother and father began dating when father was 25 years old and mother was 16 years old. Although, apparently, they were "never in a relationship," Jeremiah was born in September 2008 when mother was 17. On January 25, 2010, father initiated paternity proceedings in family court and requested primary custody of the minor. So began the more than five-year custody battle that is described at length in the family court file which is included in our record on appeal.
We will not recount this history in detail. Suffice to say that neither parent distinguished themselves. Three days after father's family court filing, the Department received a referral reporting that mother was selling drugs to support the minor and similar allegations were made by father against mother in family court. As a result, father obtained temporary physical custody of Jeremiah in February 2010. For her part, mother reported bruising on the minor and expressed concerns for his safety in father's care. She claimed father had blocked her from leaving a supervised visit, punched a wall, and threatened to harm her and her family. Father stated that mother banged on the door of his home and threw things at his windows. He further claimed that the maternal grandmother had attempted to hit him with a car when he was carrying the minor.
By May 2010, the parents had reached a mediated agreement regarding mother's visitation. Nevertheless, in June 2010, father claimed that mother had thrown her purse at him through the passenger side window of his car, hitting him in the face. Jeremiah was reportedly in the car at the time. Mother countered that father had made the whole story up after she refused his request for a sexual favor. By October 2010, the mediator was recommending that the parents share joint legal and physical custody of the minor, stating that mother had addressed any concerns regarding past drug use. Then, in December 2010, the Department received a referral that father had slapped mother on the face during a child custody exchange. Father claimed it was mother who pushed him.
In January 2011, the family law court appointed counsel for Jeremiah, ordered the Department to investigate the case, and required the parents to exchange the minor at a police station. In February 2011, however, the parents informed the court that minor's counsel was unnecessary because they had reached an agreement to keep the custody and visitation orders the same. Minor's counsel was nevertheless appointed and subsequently filed a report with the family court indicating that the parents were seeing each other romantically. In May 2011, the Department received a referral reporting concerns that Jeremiah was being physically abused. At that time, he was with father four days a week and with mother three. Neither parent could explain the bruising on the minor and, as a result, the allegation was determined to be unfounded. That same month, minor's counsel recommended that mother's visitation be reduced because the constant conflict between the parents was detrimental to Jeremiah.
By April 2012, mother was requesting modification of the existing custody and visitation orders due to concerns that father had not brought Jeremiah to school consistently and failed to dress him appropriately. Minor's counsel filed a declaration in response indicating that the case was "incredibly high-conflict" and that the family was perhaps among the top three she had ever been involved with in terms of conflict. In November 2012, the family court ordered that father have sole legal and physical custody of Jeremiah, that mother have visitation three weekends per month, and that the exchanges occur at a third party residence.
In 2013, the Department received two referrals reporting concerns that the minor was being sexually abused while in father's care. Father indicated that he was attending counseling with Jeremiah to address his sexualized behavior and the Department assessed the concerns as unfounded. In April 2014, father requested that mother's visitation be reduced, claiming that Jeremiah's behavior had worsened and included peeing on the wall at school and reverting to sucking his thumb. Eventually the parents reached agreement to keep mother's visitation the same.
In September 2014, the Department received a referral that Jeremiah was being hit with a belt by father and put in a cold shower. The Department determined the report to be unfounded because it could not verify bruising on the minor and Jeremiah reported that mother had told him to say that he did not love father because father was hitting him. In November 2014, mother requested modification of the existing family court orders, informing the court that father was attempting to move the minor out of the county. Mother also reported continued concerns about Jeremiah's safety in father's care due to bruising on the minor's arms and thighs and fleabites all over his body. She further claimed that Jeremiah told her that father had threatened to kill her. Minor's counsel agreed that Jeremiah should not be moved out of county and suggested that the parents split alternate weeks with the minor. In February 2015, the family court ordered that Jeremiah not be removed from his school of origin.
After dueling declarations by father and minor's counsel during the beginning of 2015, father retained a private attorney and, in May 2015, he and minor's counsel filed a joint statement with the family court regarding outstanding issues. Also in May 2015, the Department received a referral reporting concerns that father was using excessive corporal punishment on Jeremiah, including whipping the boy and making him take cold showers. Additionally, father had shown up to the minor's school visibly upset and did not go through the standard procedure to pull him out of school. At a hearing on May 26, 2015, the family court made a number of orders, including ordering the minor to remain in therapy, the parents to participate in co-parenting therapy, both parents to administer attention deficit hyperactivity disorder (ADHD) medication to Jeremiah, and mother's visitation to be changed to accommodate her therapy with Jeremiah. The family court also ordered that all exchanges remain supervised, stating: "The animosity between the parents is one of the most significant issues in this case and . . . without that kind of supervised exchange, there's going to be further issues."
In June 2015, father expressed concern that mother was not giving Jeremiah his ADHD medication. In July 2015, the agency supervising the parents' exchanges of Jeremiah cancelled their services over a payment issue. Then, in August 2015, despite the family court order requiring Jeremiah to stay at his school of origin, father moved the minor out of state. Father filed a declaration in which he admitted to the move and stated it was in part due to his "long and arduous custody case with Jeremiah's mother." He believed the effects of the case were traumatic to Jeremiah and a contributing factor as to why the minor was back in therapy. On August 28, 2015, the family court ordered that Jeremiah be returned to his school of origin and that custody exchanges occur at the school. On the same day, mother filed a request for sole physical custody of Jeremiah and father opposed this request.
Then, on September 2, 2015, the Department received the referral that formed the basis for these proceedings. Specifically, it was reported that when mother brought six-year-old Jeremiah to school on Monday (August 31), she stated that Jeremiah had a bruise on the back of his leg. The minor stated that father had hit him there with a belt. Jeremiah repeated this allegation to the investigating social worker, who observed the bruising and assessed that the outline was in the shape of a belt. Jeremiah stated that his father hit him 3 times in a row, 16 times in a row, and 10 times in a row. He denied that anyone else hit him with a belt. When the social worker told the minor she would speak to father about the bruises, the minor indicated he was scared of being whipped again.
According to mother, she picked Jeremiah up from school on Friday, August 28 for weekend visitation. On August 29, the maternal grandmother, who was watching Jeremiah, called mother and told her Jeremiah had a bruise. Jeremiah later told mother father had hit him with a belt. Mother stated that father had been told by the family court not to use a belt to discipline Jeremiah, but he kept doing it. She claimed that he had admitted in the family court to using corporal punishment on Jeremiah since the minor was three years old. Mother also stated that she had done a lot of stupid things when she was younger, which was why father had custody of Jeremiah. She admitted to the social worker being " 'in the streets' " and selling drugs in the past, but reported that she had changed so she could be with the minor.
When interviewed, father admitted using a belt to discipline Jeremiah in the past, but denied using the method recently. He stated that the maternal grandmother whips the minor with a belt. When told the Department was concerned father was using excessive corporal punishment, father stated he did not think there was any reason for concern. Since father refused to have Jeremiah placed temporarily with mother, law enforcement was called to the school to assess Jeremiah's safety. Although father knew that the Department wanted law enforcement to assess the minor, he rushed to the school so he could get there before the social worker. Father then pushed his way through school personnel, was reportedly "very aggressive," ignored the principal's request that he wait until law enforcement arrived, and took Jeremiah out of school. Subsequently, father contacted law enforcement, stating that he would allow Jeremiah to stay with mother. While conditions for the transfer were being discussed, father saw mother in the school parking lot, dropped Jeremiah off with her, and drove away. The police report generated in connection with this incident included an officer's assessment that Jeremiah's bruises were blue parallel lines a couple of inches apart that were consistent with the outside width of a belt.
When the social worker spoke with minor's counsel, she indicated that, when she learned father had taken Jeremiah out of school, she was fearful that father had killed the boy. She expressed concern that father was physically and emotionally abusing Jeremiah. She reported, for instance, that Jeremiah referred to himself as " 'a little shit' " because that is what father called him. In addition, father made the minor watch him burn presents Jeremiah had purchased for his maternal family in the fireplace, because father did not want them in his home. There were also reports that father made Jeremiah take cold showers and sleep outside in the dog house as a form of punishment.
A Family Team Meeting was held on September 4, 2015, to discuss the referral allegations. Both parents had to be admonished for speaking negatively of one another and not focusing on Jeremiah's safety. Father attempted to terminate the meeting, stating that he had the right to make decisions about how to discipline the minor. Father also stated that he last whipped Jeremiah in June 2015 for stealing and that he uses other forms of discipline, such as making the six year old do push-ups. Ultimately, father had to be asked to leave the meeting after he refused to stop recording it.
In particular, father stated that he had whipped Jeremiah for stealing because he did not want his son to be treated like the " 'Black men in America' " as portrayed on T.V.
On September 8, 2015, Jeremiah's therapist reported that the minor had previously told her that " 'Daddy did pow pow,' " but he wouldn't otherwise say much about it. Jeremiah also exhibited some anxiety and would bang his hand onto his head. He would make statements such as " 'I'm stupid' " and " 'I can't get it right,' " and did not share things about his home life with the therapist. Nevertheless, the therapist had no concerns for the minor's safety in father's care.
On September 9, 2015, the Department filed a petition and related detention report alleging that the minor was a child described by subdivisions (a) and (b) of section 300 of the Welfare and Institutions Code. The Department was "gravely concerned" that father's use of corporal punishment continued to place the minor's physical and emotional well-being at risk. It recommended that Jeremiah remain in the home of his mother, the formerly non-custodial parent, until father participated in services to help mitigate the risk of continued physical abuse to Jeremiah. Photographs of Jeremiah's bruising were attached to the detention report.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
At the detention hearing on September 10, 2015, Jeremiah was detained from father and placed with mother. The family court case was suspended. Given the family conflict, the juvenile court limited the parents' educational rights to ensure Jeremiah's special needs would be met.
In October 2015, the social worker met with Jeremiah and asked him if he felt safe in his father's home. Jeremiah responded it was " 'not safe' " because his father (whom he called Josh) gave him " 'whoopings' " with a belt on his bottom. When asked how many times this happened, Jeremiah responded: " '50 million times.' " Jeremiah also confirmed that he was made to take cold showers as a punishment and that, on one occasion, he was left to sleep outside the whole night. He slept in the dog house. Jeremiah denied ever seeing his parents fight, but indicated that father would say "bad words" about mother. When asked what he would like the social worker to report to the juvenile court, he said to tell the judge: " 'I want Josh to not hit me anymore.' "
Jeremiah's teacher was also interviewed in advance of the jurisdictional and dispositional hearing. She stated that, at the beginning of the school year, Jeremiah was a " 'mess.' " He could not sit still, would get up from his desk, and would crawl under the table. However, since he had been placed with his mother, his behavior had improved and he was better able to focus. She believed Jeremiah was in "a great spot" with mother and wanted to see him remain there. When the class was recently writing about heroes, Jeremiah identified his mother as his hero because "she took him away from 'Josh.' " Jeremiah also informed the social worker that he feels safe in mother's home.
The Department concluded that the risk to Jeremiah in the home of his father remained high. It recommended that the minor remain in mother's home, that family maintenance services be provided to mother, and that family reunification services be provided to father. The Department believed that the relationship between father and Jeremiah needs "nourishing because [father's] discipline methods and lack of emotional support have left discord between them." Additionally, it was "obvious" to the Department that "the parents . . . need to work on a co-parenting relationship so that Family Law Court and Child Welfare do not have to supervise the family for the rest of Jeremiah's childhood."
The Department's recommendations were contested by father and the matter was continued several times, such that the Department filed an addendum to its jurisdictional and dispositional report in January 2016. In addition to a summary of the prior family court proceedings, the report documented Jeremiah's progress since his removal from father. Specifically, according to mother, the minor was continuing to improve dramatically at school in that he was much calmer and better able to sit still and apply himself. Mother further reported that she had discontinued the minor's ADHD medication as he appeared to no longer need it, and the minor showed no ill effects from this change. In addition, Jeremiah's teacher confirmed that Jeremiah had made tremendous growth in his behavior, social skills, and work habits. Although he had a long way to go to catch up academically, Jeremiah was "on the right track" and was "starting to blossom under his mother's care."
Reportedly, father was out of state with a teenaged son who was suffering from a terminal illness. Father was involved in a family court proceeding, trying to bring that son back to California.
The contested jurisdictional and dispositional hearing was finally held on March 8, 2016. The social worker testified regarding the bruising that formed the basis of the referral, stating that the investigating social worker had observed a "darker bruise" on Jeremiah's leg and a fainter mark that may have been another bruise. She also indicated that Jeremiah had been consistent in his assertion that father had hit him with a belt; that she assessed the minor's disclosures as consistent with the photographs of the injuries; and that no other explanation was given by the minor for the bruising. Finally, the social worker testified that she had not observed any detrimental effects on Jeremiah from the discontinuance of his ADHD medication. The juvenile court took judicial notice of the entire family court file and indicated that it had considered it. With respect to jurisdiction, after argument of counsel, the court sustained three amended allegations under subdivision (b) and found that the child was described by that subdivision. The court then asked for argument with respect to disposition. Father's attorney indicated she was "happy with him receiving the family reunification" and mother's attorney asked the court to follow the recommendation of family maintenance. The court did so, declaring Jeremiah a juvenile court dependent, removing the minor from father, placing him with mother, and ordering services for both parents as requested.
Mother and father both filed timely notices of appeal, bringing the matter before this court.
II. DISCUSSION
A. Motion to Dismiss
On September 13, 2016, the Department filed two motions with this court: (1) a motion to augment the record with court documents showing that, in August 2016, the juvenile court terminated its dependency jurisdiction in this matter and granted mother custody of Jeremiah; and (2) a motion to dismiss these appeals as moot given the termination of the underlying dependency. After both mother and father filed oppositions to the motions, we granted the Department's motion to augment for purposes of ruling on the motion to dismiss. We then denied the motion to dismiss for both appeals "without prejudice to this court's consideration of mootness or justiciability questions in connection with its determination of the merits." Having now reviewed the merits in this matter, we re-visit the issues raised by the Department in its dismissal motion.
In doing so, we consider the materials supplied by the Department in its motion to augment only to the extent that they establish that the juvenile court dismissed this dependency action on August 25, 2016, with a custody order. In addition, on our own motion, we take judicial notice of the juvenile court's minute order for August 25—which is attached as an exhibit to father's opposition papers—for purposes of establishing that the juvenile court granted sole legal and physical custody of Jeremiah to mother. (Evid. Code, §§ 452, subds. (c) & (d), 459, subd. (a).)
In her appeal, mother challenges only one of the juvenile court's jurisdictional determinations, its finding under subdivision (b) of section 300 that her history of domestic violence and custody disputes with father placed Jeremiah at substantial risk of physical harm (the b-3 allegation). Mother opposes dismissal of her appeal on two grounds. First, she argues that the post-judgment evidence proffered by the Department to establish the termination of Jeremiah's dependency action is irrelevant and should not be considered. Second, she asserts that, even if this court augments the record with the termination information supplied by the Department, we should still reach the merits of her appeal because the jurisdictional finding she challenges could potentially prejudice her in future dependency proceedings. We believe that the recent opinion in N.S. supra, 245 Cal.App.4th 53, adequately addresses and undercuts both of mother's concerns.
Specifically, the juvenile court found as follows: "The parents, Joshua [T.] and Laura [E.], have a history of domestic violence during exchanges of custody, which has resulted in the minor, Jeremiah [E.], being appointed counsel to represent his well-being. Around the time of these exchanges, Jeremiah exhibited signs of anxiety and self-harming behaviors, evidenced by him hitting his hand onto his head repeatedly and describing himself in negative terms such as: 'I'm stupid,' 'I can't get it right.' On or about August 2015, Mr. [T.] refused the mother access to Jeremiah despite the current custody order allowing the mother visitation. Such actions place the minor at substantial risk of physical harm and neglect."
In N.S., the minor was removed from both parents after they were arrested a second time for illegally possessing marijuana for sale in their home. (N.S., supra, 245 Cal.App.4th at p. 56.) While the mother's appeal challenging the jurisdictional findings was pending, the juvenile court awarded custody of N.S. to mother and dismissed the dependency. (Id. at p. 55.) Under such circumstance, Division One of our First District concluded that dismissal of the related appeal was appropriate. (Id. at pp. 55-56.)
As a preliminary matter, the N.S. court confirmed that an appellate court should be notified regarding post appellate juvenile court rulings that affect the court's ability to grant effective relief, such as the termination orders at issue in both N.S. and in this case. (N.S., supra, 245 Cal.App.4th at p. 57; see also In re Josiah Z. (2005) 36 Cal.4th 664, 676 [appellate courts routinely consider limited post judgment evidence in connection with motions to dismiss].) With respect to mootness, the court first reviewed the doctrine generally, noting that, "[a]s a general rule, it is a court's duty to decide ' " 'actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare the principles or rules of law which cannot affect the matter in issue in the case before it.' " ' " (N.S., supra, 245 Cal.App.4th at p. 58.) It then held that "the critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error." (Id. at p. 60.) Finally, it acknowledged that, even if effective relief cannot be given to the parties in a particular proceeding, an appellate court may exercise its discretion to resolve a claim in certain circumstances "such as when there is an issue of broad public interest that is likely to recur, there is a likelihood that the controversy will recur, or material questions remain for the court's determination." (Id. at p. 60, fn. 3.)
Applying these basic tenets to the case at hand, the N.S. court concluded that, even if it were to determine that "the juvenile court's jurisdictional findings erroneously resolved a close call," there remained "no effective relief" it could give to the mother that she had not "already obtained." (N.S., supra, 245 Cal.App.4th at p. 62.) Specifically, because the mother had already been awarded custody of the minor, the challenged jurisdictional findings were "not the basis of any current order that [was] adverse to her." (Id. at p. 61.) Thus, dismissal of the mother's appeal was appropriate. (Id. at p. 63.)
In reaching this decision the appellate court expressly distinguished the situation at issue in N.S. from the circumstances of In re Joshua C. (1994) 24 Cal.App.4th 1544 (Joshua C.). In the latter case, the juvenile court sustained a jurisdictional finding that the father had sexually abused his daughter; awarded custody of the two minors at issue to the mother; restricted the father's visitation; and terminated dependency jurisdiction. (Id. at 1546-1547.) "The appellate court held that it could consider the father's appeal from the jurisdictional findings, notwithstanding the termination of dependency proceedings, because those findings were the basis for restrictive visitation and custody orders that continued to negatively affect the father." (N.S., supra, 245 Cal.App.4th at p. 60.) Moreover, if the jurisdictional basis for the restrictive custody and visitation orders was "found by direct appeal to be faulty, the orders would be invalid." (Joshua C., supra, 24 Cal.App.4th at p. 1548.) Obviously, the situation in Joshua C. was inapposite to N.S., as N.S.'s mother was not the subject of restrictive custody orders based on the jurisdictional allegations she challenged.
Finally, the N.S. court declined to exercise its discretion to consider the mother's appellate claims despite the fact that its decision might leave possibly erroneous findings unexamined. (N.S., supra, 245 Cal.App.4th at pp. 61-62.) While it understood "the desire of parents to challenge negative findings made about their parenting in dependency proceedings even when they are ultimately able to regain custody of their children," this desire was insufficient to support appellate consideration of such a challenge when no effective relief could be granted. (Id. at p. 62.) The N.S. court also rejected the argument that it should reach the merits of mother's claims because the jurisdictional findings might have negative consequences for her in collateral proceedings. (Id. at pp. 62-63.) In this regard, it noted that the mother did not contest the operative facts contained in the allegations, which "would almost certainly be available in any future dependency proceedings." (Id. at p. 63.) Moreover, the fact that the mother quickly regained custody of her child would likewise be presented. Thus, the mother failed to show any meaningful adverse effect from the continued existence of the jurisdictional findings, themselves. (Ibid.)
With respect to mother's appeal in this matter, we find the analysis of N.S. both persuasive and controlling. Since mother was granted sole physical and legal custody of Jeremiah, no relief can be granted to her that she has not already obtained, because the jurisdictional finding she challenges is "not the basis of any current order that [was] adverse to her." (N.S., supra, 245 Cal.App.4th at p. 61.) In addition, mother does not deny that there were several instances of domestic violence in her past; that she and father have been involved in contentious and protracted custody proceedings involving Jeremiah; or that the minor has suffered emotional harm. Rather, she claims only that such facts are insufficient to support jurisdiction under subdivision (b) of section 300. Whether or not we reversed the b-3 allegation in this case, however, these underlying facts are clearly and extensively documented in the family court file which would presumably be available in any future dependency action or family court proceeding—as would the facts that mother was quickly granted sole custody of Jeremiah and dependency supervision was terminated. Under such circumstances, we exercise our discretion to dismiss mother's appeal.
Indeed, mother does not even challenge the other two bases for the court's jurisdictional finding under subdivision (b). Thus, she has arguably not even presented a justiciable appeal, as the juvenile court's assumption of dependency jurisdiction in this case would not be reversed regardless of her appellate outcome. (See In re M.W. (2015) 238 Cal.App.4th 1444, 1452 ["[a]s a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings"].) While we prefer to decide the issue based on the analysis set forth above, we note as an additional consideration that mother's request for appellate "relief" could have no possible effect on these current proceedings.
In contrast, we agree with father that, under the analytical framework set forth in N.S., consideration of his appeal on the merits is appropriate. Prior to the juvenile court's intervention, father had sole legal and physical custody of Jeremiah, with mother receiving visitation. As a result of the jurisdictional findings—including the finding that father had improperly punished Jeremiah by hitting him with a belt, causing bruising—Jeremiah was removed from father's care and placed with mother. This led, ultimately, to the dismissal of dependency with sole legal and physical custody granted to mother. Indeed, it appears that father was not even granted visitation with Jeremiah. Since, as in Joshua C., the jurisdictional findings in this case were the basis for restrictive visitation and custody orders that continue to affect father and since those orders would be subject to challenge if the jurisdictional basis for them was reversed, we will consider father's appeal on the merits. (See N.S., supra, 245 Cal.App.4th at p. 60; Joshua C., supra, 24 Cal.App.4th at p. 1548.) B. Jurisdictional Findings
In his appeal, father challenges all three factual bases for the juvenile court's jurisdictional finding under subdivision (b) of section 300. Proof by a preponderance of the evidence is necessary to support a finding under subdivision (b). (§ 355, subd. (a).) However, on appeal, "[a] dependency court's jurisdictional findings are reviewed under the substantial evidence test. [Citation.] Under this test, we resolve all conflicts in the evidence, and indulge all reasonable inferences that may be derived from the evidence, in favor of the court's findings." (In re Mia Z. (2016) 246 Cal.App.4th 883, 891 (Mia Z.).) Further, issues of credibility are questions for the trier of fact. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1451-1452 (Cole Y.).).
As is relevant here, dependency jurisdiction is warranted pursuant to subdivision (b) of section 300 if "[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).) "The three elements for jurisdiction under section 300, subdivision (b) are: ' "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the [child], or a 'substantial risk' of such harm or illness." ' " (In re B.T. (2011) 193 Cal.App.4th 685, 692.) Subdivision (b), however, also emphasizes that a child "shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (§ 300, subd. (b)(1).) In this regard, "[t]he court may consider past events in deciding whether a child currently needs the court's protection. [Citation.]" Moreover, "[a] parent's ' "[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' " (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384.)
1. The b-1 Allegation.
In the present case the Department alleged that Jeremiah fell within the purview of subdivision (b) because father intentionally hit him with a belt as a form of corporal punishment, causing bruising (the b-1 allegation). The juvenile court agreed. Specifically, in sustaining the b-1 allegation, the court stated: "Looking at the photographs from the detention report, the mark on the child's leg took up a great portion of the upper leg. It is in the shape—obviously, you don't have to be an expert. It is consistent with an item that could be shaped like a belt or some other item. I think it is clear there something that caused a large bruise in the particular shape. So there is corroboration. [¶] But in addition to that, there is also some admissions by the father and others that that type of discipline might have been employed. The question is whether it is reasonable. [¶] Corporal punishment can be permitted. You have to keep in mind the age of the child, the size of the child, the nature of the infraction by the child, and whether there was damage; and this was obviously not to the buttocks. Obviously, enough force to cause a bruise days later. So I believe there is sufficient evidence that supports the petition. [¶] And the Court believes both parties are in need of services for a happy family outcome for all. The court does find that the allegations in the petition as amended orally today have been sustained by a preponderance of the evidence. I do find the allegations true."
The b-1 allegation as sustained by the juvenile court reads in full: "The minor, Jeremiah [E.], age six (6), was intentionally hit with a belt by his father, Joshua [T.], as a form of corporal punishment resulting in a rectangular black and blue bruise on the right upper back thigh about four (4) inches in length and one (1) inch wide, similar to a belt mark. Such actions place the minor at substantial risk of serious physical harm."
Father, in contrast, asserts fully 20 different grounds for reversal of the juvenile court's assumption of jurisdiction based on the b-1 allegation. Specifically, he argues that the juvenile court: (1) abused its discretion in commenting during its jurisdictional analysis that it believed "both parties [were] in need of services for a happy family outcome," an improper criterion for the establishment of jurisdiction under subdivision (b); (2) abused its discretion by concluding that the mark on Jeremiah's leg corroborated the minor's claim that father hit him with a belt, as it did not prove that father caused the bruising; (3) erred when applying the parental discipline doctrine by failing to consider the genuineness of father's disciplinary motive, the necessity of the punishment, or the reasonableness of its severity; (4) failed to find that the mark on the minor's leg was made by a belt, opining merely that it was consistent with an item like a belt; (5) failed to appreciate that the evidence did not objectively demonstrate that the mark was a bruise; (6) failed to find that father had actually caused the mark by hitting Jeremiah; (7) failed to expressly find Jeremiah's hearsay statements credible; (8) could not be found to have made an implied finding that Jeremiah was credible because such a finding may only be implied where the evidence is clear; (9) could not have concluded that substantial evidence supported Jeremiah's credibility because Jeremiah had variously claimed that he had been hit by father 3 times in a row, 16 times in a row, 10 times in a row, and " '50 million' " times in a row and had, on another occasion, stated that mother told him to say he did not love father because father was hitting him; (10) failed to consider that Jeremiah's therapist, a mandated reporter, never reported that father was disciplining the minor with a belt and stated that she had no concerns father was physically abusing Jeremiah; and (11) did not appreciate that Jeremiah's family court attorney filed a report in March 2015 that made no mention of any concern on her part about Jeremiah's physical health or about any excessive physical discipline by father.
Moreover, according to father, the juvenile court also (12) failed to expressly find not credible father's assertion that he did not cause the bruising, where the surrounding circumstances indicated that his denial was truthful; (13) failed to consider father's allegation that mother was making a false report against him and that the maternal grandmother, who frequently watched the minor, was the one who whipped him with a belt; (14) failed to consider the suspicious nature of the timing of the report of abuse—where mother stated she had not seen a bruise when she received Jeremiah from father on August 28, left the minor with the maternal grandmother the next day, was told by the maternal grandmother that Jeremiah had a bruise, but thereafter declined to report the matter until August 31 when the minor was back in school and back in father's care; (15) failed to consider that mother and father had been "embroiled in a 'family court battle' " since 2010, along with all of the inappropriate behaviors mother engaged in during those proceedings; (16) failed to appreciate that the allegations were made only a few days after mother was unsuccessful in securing the custody orders she was seeking in the family law court; (17) did not acknowledge that when the Department used the term " 'excessive discipline' " when discussing the need to remove Jeremiah from father, it did so using "words of hesitation," such as suggesting that the minor's safety " 'm[ight] be of immediate concern' " ; (18) had an obligation to guard against class and life-style biases and yet did not consider that father's justification for sometimes using a belt on Jeremiah—that he did not want his son to be treated like " 'the [B]lack men in America' " as portrayed on T.V.—might not be unreasonable; (19) did not understand that use of a belt for discipline does not automatically constitute serious physical harm; and (20) could have presumed from the fact that father employed other forms of discipline with Jeremiah—such as time outs, talking to the minor about his behavior, and having him do pushups—that father only used a belt in response to Jeremiah's most problematic behavior.
We find it somewhat incredible that we are forced here to reiterate once again the fundamental appellate tenet that our role on appeal is not to second-guess credibility determinations or reweigh the evidence considered by the juvenile court. (Cole Y., supra, 233 Cal.App.4th at pp. 1451-1452.) Suffice to say that we do not believe that any of father's myriad allegations are sufficient to fatally undercut the substantial evidence supporting the juvenile court's true finding with respect to the b-1 allegation. As detailed above, Jeremiah consistently and repeatedly stated that his father had hit him with a belt, causing the bruising to his leg. (Cf. § 355, subd. (c)(1)(B) [hearsay evidence may be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based where the hearsay declarant is a minor under 12 years of age who is the subject of the jurisdictional hearing].) Moreover, there was significant evidence—including father's own admission—that this type of corporal punishment was used by father against Jeremiah in the past, possibly since he was as young as three years old. Indeed, it apparently occurred often enough for Jeremiah to declare that he had been hit by father " '50 million times,' " an obvious exaggeration that nevertheless implies that such punishment, in the child's perception, was overwhelmingly frequent. In addition, the hitting was substantial enough that the minor feared his disclosure would lead to him being whipped again. And, when asked what he wanted the juvenile court judge to know, he stated: " 'I want Josh to not hit me anymore.' " Finally, the bruising, which was consistent with being hit by an object like a belt, was significant enough that it was still readily apparent to social workers, the police, and the juvenile court judge, both in person at least five days after the incident could have occurred and in pictures from that same day. Under such circumstances, we have no difficulty concluding that the juvenile court's true finding with respect to the b-1 allegation was amply supported by the evidence.
2. The b-2 and b-3 Allegations Are Not Justiciable.
Having determined that jurisdiction in this matter was appropriately established under subdivision (b) of section 300 based on the b-1 allegation, we decline to consider the propriety of the b-2 and b-3 allegations on justiciability grounds. As discussed above, application of the doctrine of justiciability in the dependency context leads to the conclusion that "[w]hen 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 Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nevertheless, the reviewing court does have the discretion to consider the adequacy of additional jurisdictional grounds if it so desires. (In re I.A. (2011) 201 Cal.App.4th 1484, 1493 (I.A.).)
The text of the b-3 allegation is set forth above. The b-2 allegation states in full: "The minor, Jeremiah [E.], has special educational and behavioral needs as evidenced by Jeremiah's Individualized Educational Plan. The father, Mr. [T.] reported Jeremiah is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and is often not on task in school. The father has failed to understand how Jeremiah's diagnosis may be causing his behavioral problems, which has prevented Mr. [T.] from seeking other means to correct Jeremiah's behavior. Due to Mr. [T.'s] lack of understanding about Jeremiah's special needs, the father is unable to safely parent the minor without the use of unreasonable and cruel punishment, which includes but is not limited to, hitting Jeremiah with a belt resulting in injury, forcing Jeremiah to take cold showers, making Jeremiah sleep outside in the dog house, and instructing Jeremiah to do pushups. Such actions place the minor at substantial risk of serious harm and neglect."
Father, of course, asks us to exercise our discretion in this case to review the two additional bases for juvenile court jurisdiction under subdivision (b). Specifically, he argues that: (1) the jurisdictional findings served as the basis for the court's dispositional orders, which are also being challenged by father on appeal; (2) the existence of any one of the three jurisdictional findings could potentially be prejudicial to father in current or future dependency or family court proceedings; and (3) the challenged findings could have collateral consequences for father, as his name could be placed in the Child Abuse Central Index (CACI) as a result. (See Pen. Code, §§ 11165.3, 11169 [CACI provisions]; In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 [discussing justiciability].) We are not convinced.
Rather, as we discuss further below, we would uphold the juvenile court's dispositional orders against father's challenge based on our affirmance of the b-1 allegation alone. Further, the b-2 allegation is essentially an elaboration on the claim that father used inappropriate corporal punishment on Jeremiah, a fact we have already upheld on appeal in the context of the b-1 allegation. In addition, the operative facts in both the b-2 allegation (regarding father's inappropriate methods of discipline) and the b-3 allegation (discussing the contentious nature of the parents' custody dispute with respect to the minor) are all well known and memorialized in family court and/or juvenile court records. Thus, they would almost certainly be available in any future dependency or family court proceeding, regardless of any determination on our part as to whether they formed independent bases for juvenile court jurisdiction in this matter. Finally, we find father's argument regarding the CACI speculative in the extreme. It is not clear on this record whether a report was even made to the Department of Justice and, if so, what that report might have included. Moreover, a report is likely warranted in this case based on the severity of the b-1 allegation alone. (Pen. Code, §§ 11165.2, subd. (a), 11165.3, 11169.) In short, on these facts, reaching the merits of father's additional subdivision (b) claims would not have "a single specific legal or practical consequence . . . either within or outside the dependency proceedings." (I.A., supra, 201 Cal.App.4th at p. 1493.) We therefore decline to review them. C. Dispositional Removal Order
In order to remove a dependent child from a parent's home, there must be clear and convincing evidence of a substantial danger to the child's health, safety, or physical or emotional well-being that cannot be eliminated by reasonable means. (In re J.C. (2014) 233 Cal.App.4th 1, 6 (J.C.); In re H.E. (2008) 169 Cal.App.4th 710, 718-723 (H.E.); see also § 361, subd. (c)(1).) Put another way, " '[a] removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. . . . The court may consider a parent's past conduct as well as present circumstances.' " (A.S. (2011) 202 Cal.App.4th 237, 247.)
With respect to a removal order, "[o]ur review on appeal follows the ordinary rules for substantial evidence, notwithstanding that the finding below had to be made by clear and convincing evidence." (H.E., supra, 169 Cal.App.4th at pp. 723-724; J.C., supra, 233 Cal.App.4th at p. 6.) "Viewing the evidence in the light most favorable to the finding, and presuming in its support the existence of every fact the trier could reasonably deduce, we ask whether any rational trier of fact could have made the finding by the requisite standard. [Citation.] Mere support for a contrary conclusion is not enough to defeat the finding [citation]; nor is the existence of evidence from which a different trier of fact might find otherwise in an exercise of discretion [citation]." (H.E., supra, 169 Cal.App.4th at pp. 724.)
In the present case, father argues that the juvenile court's dispositional order in this matter should be reversed, both because of the many alleged flaws he identified with respect to the jurisdictional findings and because reasonable alternatives to removal of the minor existed which the court failed to consider. The Department, however, urges us not to reach father's dispositional arguments on forfeiture grounds. While it is true that father failed to challenge the Department's dispositional recommendations below, and, in fact, his attorney stated she was "happy with him receiving the family reunification," we will reach the merits of his claims because they are so easily dismissed.
Father also claims that we must reverse the juvenile court's dispositional order to the extent it indicates that a jurisdictional finding was made pursuant to subdivision (a) of section 300, because no subdivision (a) finding was actually made. It is true that the form findings and orders filed after the dispositional hearing do contain a checked box indicating that jurisdiction was established under subdivision (a) as well as (b). However, even a cursory examination of the record makes obvious that this was a clerical error that is not worthy of our appellate attention. The juvenile court clearly and unequivocally dismissed the (a) allegation and only made findings under subdivision (b). If any relief is necessary, it can easily be obtained in the juvenile court.
First, as discussed above, we have concluded that none of father's numerous jurisdictional challenges undercut the substantial evidence supporting the juvenile court's true finding with respect to the b-1 allegation. Further, we have no trouble affirming removal of the minor from father based on that finding, even when we consider the evidence presented in light of the juvenile court's requisite heightened standard of proof. Indeed, the record in this case—including (1) the serious injury to Jeremiah; (2) father's denial, both that he inflicted the injury and that there was any problem requiring attention; (3) father's apparently longstanding and deeply engrained attitudes regarding discipline, upon which he was resistant to accepting any limits ; (4) the minor's statements that he did not feel safe with father and did not want to live with him; (5) the concerns of Jeremiah's attorney that father was physically and emotionally abusing the boy; and (6) father's lack of cooperation with the Department at the time of detention and thereafter—strongly supports the juvenile court's determination that returning the minor to father's care at disposition would have created a substantial danger to Jeremiah's health, safety, or physical or emotional well-being. (§ 361, subd. (c)(1).)
Thus, father's only remaining argument is that the juvenile court failed to consider reasonable alternatives to removal. The possible alternatives identified by father include stringent conditions of supervision—such as unannounced home visits and public health nursing services—as well as orders precluding specified disciplinary measures and requiring "a short-term intensive counseling program focused entirely upon the use of various disciplinary techniques for a child such as Jeremiah." Given all of the evidence we have highlighted supporting the juvenile court's removal order, we fail to see how unannounced home visits or nursing services would sufficiently protect the minor from further abuse. With respect to a specific court order prohibiting certain forms of discipline, we note that father has previously shown a blatant disregard for court orders in the family court by moving the minor out of state without permission. Moreover, father has clearly indicated that he believes he should be able to discipline Jeremiah as he sees fit. Finally, while we agree that counseling is crucial in order for father to repair his relationship with his son, he did not engage in any services prior to disposition, and thus any thoughts of returning the minor to his care at that time would have been premature. In sum, since the evidence supports the juvenile court's dispositional removal order, we will not here disturb it.
We are sympathetic to the fact that father was understandably focused on his other terminally ill son during this timeframe and may therefore have been largely unavailable to participate in services. Whatever the reason, however, the fact remains that services were essential before any attempt at reunification of father and son could safely be contemplated.
III. DISPOSITION
Mother's appeal is dismissed. Because father's appeal did not raise any issues requiring our appellate intervention, the juvenile courts jurisdictional findings and dispositional orders are affirmed.
/s/_________
REARDON, J. We concur: /s/_________
RUVOLO, P. J. /s/_________
STREETER, J.