In re Maria R. CA2/5

Filed 10/16/13 In re Maria R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re MARIA R., et al., Persons Coming B247266
Under the Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK96186)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

LUIS R., SR., et al.,

Defendants and Appellants.

APPEAL from the orders of the Superior Court of Los Angeles County, Donna
Levin, Juvenile Court Referee. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and
Appellant Luis R.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and
Appellant Maria C.
John Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Terry T. Truong, Deputy County Counsel, for Plaintiff and Respondent.
 Luis R., Sr., (father) and Maria C. (mother) appeal from a January 15, 2013 order
declaring their three minor children dependents of the court under Welfare and
Institutions Code section 300, subdivisions (b) and (j).1 Appellants contend substantial
evidence does not support the jurisdictional finding of a substantial risk of serious
physical harm as a result of appellants’ failure or inability to adequately supervise or
protect their minor children. In addition, father contends that if the dependency court
lacks jurisdiction, this court must also reverse the disposition order. We conclude
substantial evidence supports both jurisdictional findings and affirm the orders.

STATEMENT OF FACTS AND PROCEDURE

Three minors are the subject of this dependency proceeding: 15-year-old Maria,
9-year-old Jessica, and Josue, who was 19 months old at the time of the initial detention
in October 2012. At that time, father and mother lived together with the three minors,
two adult children (Brenda and Luis, Jr. [hereafter “Luis”]), and one grandchild.
Proceedings in this case commenced after Luis, who suffers from mental illness issues,
twice tried to suffocate Josue with a blanket.
On October 24, 2012, the Department of Children and Family Services
(Department) detained the three minors from parental custody and filed a petition
alleging jurisdiction under section 300, subdivisions (a), (b), and (j), based on multiple
factual allegations, including (1) parents’ actions permitting Luis to reside in the home
after he had attempted to smother Josue, (2) Luis’s drug abuse, and (3) father’s alcohol
abuse. Various reports submitted by the Department describe the factual circumstances
leading up to the initial detention, summarized below.2

1All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.

2The Department has previously investigated the family on eleven separate
occasions between 1999 and 2010. Although the Department found most of the

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allegations unfounded or unsubstantiated, when considered with the current facts, this
ongoing pattern is relevant to determining whether substantial evidence supports the
court’s finding that minors were at risk of serious harm.

1. On June 5, 1999, the Department investigated an alleged incident where Luis
stated Mother had hit him, but found the allegations unsubstantiated.

2. On January 9, 2001, the Department substantiated allegations that both mother
and father placed Luis, Maria, and Brenda at substantial risk during an incident where
Luis lost his temper, and mother began slowly driving the car away while Luis was
outside the car. The Department provided the family with voluntary services and did not
file a petition. Mother was convicted of violating Penal Code section 273, subdivision
(a), willful cruelty to a child.

3. On November 13, 2001, the Department looked into allegations that father
physically abused Luis, Maria, and Brenda, but the allegations were found to be either
unfounded (with respect to Luis and Maria) or inconclusive (with respect to Brenda).

4. Around February 3, 2002, Brenda reported that father pulled her hair. The
Department investigated the report and considered whether Luis and Maria were also at
risk of physical abuse but deemed the allegations unfounded.

5. On October 4, 2002, the Department investigated allegations that father
physically and sexually abused Brenda by touching her breasts and slapping her face; the
Department also investigated whether Luis and Maria were at risk of abuse. The
allegation of physical abuse was deemed unfounded, and the allegation of sexual abuse
was found inconclusive.

6. On January 13, 2003, the Department deemed unfounded allegations that Luis,
Maria, and Brenda were at substantial risk of abuse, even though father was still in the
home, despite an obligation to move out based on earlier concerns about inappropriate
sexual touching of Brenda.

7. On October 8, 2004, the Department inquired about unfounded allegations of
emotional abuse, based on father’s drinking and yelling profanities at Brenda and mother.

8. On May 2, 2007, the Department concluded that allegations of verbal and
physical abuse of Brenda by mother were unfounded.

9. On December 4, 2008, the Department concluded that allegations of physical
abuse of Jessica were unfounded.

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 Luis has a history of mental illness, drug use, and violence in the home, beginning
around 2010. He was arrested in June 2010, after becoming violent in the family home.
During the arrest, police found drugs and $20,000 in stolen jewelry. Luis was in and out
of juvenile hall and drug treatment from June 2010 until February 2012. When he was
discharged in February 2012, he was diagnosed with adjustment disorder, anxiety,
psychotic disorder not otherwise specified, and poly-substance dependence. However, he
refused any medication or ongoing therapy.
Luis began hearing voices and suffering hallucinations beginning five or six
months before the initial detention. He admitted to attempting suicide in the apartment
around the same time he first attempted to smother Josue, about two weeks before the
Department detained the minors.
The first time Luis attempted to smother his brother, he covered Josue with a
blanket, claiming he was trying to “give him his power.” Brenda realized that Luis was
trying to suffocate Josue and called mother. Mother became upset because Josue does
not like to have his face covered with a blanket, and she was concerned he could have
difficulty breathing. Josue was very scared and tearful. Although mother stated she told
Luis to leave the home immediately, she denied kicking him out of the house; rather, she
asked him to leave while she calmed down. She did not tell father about this incident

10. On June 24, 2010, the Department substantiated allegations that Luis
physically abused Maria by hitting her with a clenched fist on her face, neck, and arms
hard enough to leave bruises. At the time of the incident, neither mother nor father were
home, and Luis was found in possession of marijuana. Luis was arrested and placed on
probation. The investigative notes state: “Luis was arrested and detained under the
Probation Department where he remains placed and where he is receiving rehabilitation
services for his substance abuse. Luis no longer resides in the home and at this time he
does not present a risk to his siblings. The parents are cooperating with the Probation
Department and receiving support services through the agency.”

11. On March 22, 2011, the Department concluded that allegations of emotional
and physical abuse were unfounded. Department’s investigation revealed a confrontation
between father and Luis, due to Luis’s drug use.

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because she did not consider it to be “a dangerous thing.” Luis left but returned a few
hours later. According to Brenda, Luis always returned to the home, sometimes entering
through a window, and there was nothing the family could do about it.
On October 16, 2012, Luis again covered Josue with a blanket, attempting to
suffocate him. Mother was in another room doing laundry when she heard Josue
screaming. Mother came into the room, saw that Luis had covered Josue’s entire face
and body, attempting to suffocate him. Luis said that he was “giving [Josue] his power.”
Mother pushed Luis away and told Brenda to call the police. Luis was arrested and
placed on a 72-hour psychiatric hold at Olive View Hospital.
The Department interviewed family members on October 17, 2012. Mother stated
she planned to obtain a restraining order against Luis to prevent him from returning
home. Luis has not acted violently towards his other minor siblings, Maria and Jessica.
Maria denied being afraid of Luis, but Jessica said she was scared of Luis when he yelled
or talked about the devil.
On October 19, 2012, the Department called mother to inform her that once Luis
was released from the hospital, he would be arrested for assault with a deadly weapon for
attempting to suffocate Josue. Mother had not yet obtained a restraining order but said
she would do so the following week. Mother recognized Luis needed psychiatric help
but also stated, “Had I know[n] this would happen, I would not have called.”
By October 23, 2012, mother still had not obtained a restraining order against
Luis. The social worker informed mother that the district attorney might reject the
criminal case against Luis. She explained that unless a restraining order was in place, the
Department might detain the minors from parental custody. Mother told the worker that
she loved all her children, “including the sick one,” and she would not throw her son Luis
into the street and abandon him.
The next day, the district attorney rejected the case against Luis due to insufficient
evidence. Mother failed to corroborate the information the police had about the incident,
nor did she confirm that Luis had “smothered” Josue. Mother advised Luis not to speak
to the detectives and to request an attorney, and the detective opined that she would

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continue covering for Luis. According to the detective handling the matter, “[i]t is
evident that she (mother) will continue covering for him. The likelihood of this occurring
again is very likely.”
The Department detained Maria, Jessica, and Josue on October 24, 2012. Mother
obtained a temporary restraining order against Luis a day later. She has been unable to
serve the order on Luis because she has not seen him since his release from the hospital.
Explaining the delay in obtaining the restraining order, mother stated, “although
she knows . . . Luis is mentally ill, she never believed he was a danger to her or her
children, as he was never violent towards her or anyone in the home.” Mother said she
had “tried to get help so many times before for [Luis].” She was told several times that
nothing could be done until something happened. Father expressed frustration that police
were unwilling to arrest Luis earlier, and that it took the attempted suffocation to get
police to act.
Both mother and father expressed recognition that Luis has mental health issues
and needs treatment. Parents are regularly attending meetings of the National Alliance on
Mental Illness (NAMI), increasing their knowledge of how to handle their son’s mental
illness. Parents agree that Luis cannot reside in the family home, but they want to ensure
that he is in a safe location and receiving proper treatment. The family has a plan to keep
Luis out of the family home if he does reappear.
The dependency court sustained two counts under section 300, subdivision (b) and
one under subdivision (j) at the January 15, 2013 jurisdiction hearing. In the first
allegation under section 300, subdivision (b), the court found Luis twice attempted to
suffocate Josue with a blanket, parents knew of the physical abuse, and they failed to
protect Josue by allowing Luis to reside in the home and have unlimited access to the
child, placing the three minor children’s physical health and safety at risk. The court
sustained the second allegation under subdivision (b), based on findings that parents
failed to protect and placed the children’s physical health, safety, and well being in
danger by allowing Luis, who the parents knew suffered from mental and emotional
problems, to reside in the children’s home and have unlimited access to children. The

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allegations under subdivision (j) were similar to the first allegation in subdivision (b).
Other allegations were dismissed.
At the disposition hearing, the dependency court ordered the children returned to
parents. The court found an absence of clear and convincing evidence warranting
removal of the children from parental custody.

DISCUSSION

Father and mother contend substantial evidence does not support the dependency
court’s jurisdictional findings under section 300, subdivisions (b) and (j). We disagree.

Standard of Review

“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for
both the jurisdictional and dispositional findings. [Citations.]” (In re J.K. (2009) 174
Cal.App.4th 1426, 1433.) We must uphold the jurisdictional findings if, “after reviewing
the entire record and resolving all conflicts in favor of the respondent and drawing all
reasonable inferences in support of the judgment, we determine there is substantial
evidence to support the findings.” (In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.)
We resolve all conflicts in support of the determination, examine the record in a light
most favorable to the dependency court’s findings and conclusions, and indulge all
legitimate inferences to uphold the court’s order. (In re Brison C. (2000) 81 Cal.App.4th
1373, 1379; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)

Substantial Evidence Supports a Finding of Jurisdiction Under Section 300,
Subdivision (b)

Section 300, subdivision (b), provides in pertinent part: “The child has suffered,
or there is a substantial risk that the child will suffer, serious physical harm or illness, as a

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result of the failure or inability of his or her parent or guardian to adequately supervise or
protect the child, or the willful or negligent failure of the child’s parent or guardian to
adequately supervise or protect the child from the conduct of the custodian with whom
the child has been left . . . . The 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.”
In order to establish jurisdiction under subdivision (b) of section 300, there must
be evidence of (1) neglectful conduct by the parent; (2) causation; and (3) serious
physical harm or illness to the minor, or a substantial risk of such harm or illness. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco M.).) Appellants contend that the record
lacks substantial evidence to support finding either neglectful conduct or a substantial
risk of harm.
First, parents contend there is insufficient evidence of neglectful conduct by the
parents, citing In re Precious D. (2010) 189 Cal.App.4th 1251 (Precious D.). In Precious
D., the minor engaged in various activities harmful to herself, including running away,
skipping school, and associating with the “wrong crowd,” and there was no evidence of
neglectful conduct by the mother. (Id. at pp. 1254-1259.) Here, father and mother reason
the evidence does not support a finding of jurisdiction under section 300, subdivision (b),
because they are good parents and have taken steps to ensure their minor children are
cared for.
The facts of this case are significantly different from those in Precious D. The
dependency court acknowledged parents’ positive characteristics at the jurisdiction
hearing, but the family also has an extensive history of child welfare referrals dating back
to 1999. Luis twice covered Josue with a blanket in an attempt to suffocate him. The
second event was serious enough that the family had to call police, and Luis was placed
on a 72-hour psychiatric hold. The two successive attempts by Luis to suffocate Josue,
combined with the facts that mother minimized the seriousness of the first suffocation
incident, expressed regret at having called the police, and made statements that were
interpreted as “covering” for her mentally ill son provides substantial evidence to

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conclude parents were neglectful. Parents’ actions in permitting a mentally-ill sibling to
continue residing with the minors, in light of his history of hallucinations, delusional
behavior, a prior suicide attempt, and the first suffocation incident constitutes substantial
evidence that parents failed to protect their minor children from a risk of serious harm.
Second, parents contend because Luis has been missing and outside the home
since October 2012, there is insufficient evidence to find a substantial risk of serious
harm. Past infliction of abuse or neglect does not necessarily provide a basis for
jurisdiction under section 300, subdivision (b); there must be some reason to believe the
abusive conduct may continue in the future. (In re J.N. (2010) 181 Cal.App.4th 1010,
1025; Rocco M., supra, 1 Cal.App.4th at p. 824.) Although a parent’s past conduct may
be probative of current conditions, dependency jurisdiction depends on a showing that the
circumstances at the time of the hearing subjected the minor to the specified risk of
harm.3 (Rocco M., supra, at p. 824.) While we may draw inferences based on the
evidence, speculation, and conjecture alone do not constitute substantial evidence of risk
of harm to the minors. (In re Savannah M. (2005) 131 Cal.App.4th, 1387, 1394-1395.)
Parents highlight the fact that after Luis was released from the psychiatric hold
following his attempt to suffocate Josue, they did not have any contact with him, and his
whereabouts remained unknown during the two-and-a-half months between the initial
detention hearing and the jurisdiction and disposition hearing on January 15, 2013.
Parents argue the dependency court could not find a current risk of harm in light of Luis’s
continued absence. In In re Carlos T. (2009) 174 Cal.App.4th 795, 805-806, the
appellate court rejected a father’s argument that there was no substantial risk of abuse

3 Parents both point out a split of authority on whether a court must find a current
risk of harm at the time of the jurisdictional hearing in order to properly exercise
jurisdiction. (See, e.g., Rocco M., supra, 1 Cal.App.4th at p. 824 [current risk of harm
required to support a finding of jurisdiction]; In re J.N., supra, 181 Cal.App.4th at
pp. 1023-1024 [requiring current risk of harm]; but see In re J.K. (2009) 174 Cal.App.4th
1426, 1435 [prior incident may satisfy jurisdictional requirements, even absent a finding
of current risk of harm].) Because the record contains substantial evidence to support a
finding of current risk of harm, we need not examine whether the dependency court’s
finding would be valid absent such a finding.

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where he was incarcerated at the time of the jurisdictional hearing and therefore had no
access to the children. The appellate court pointed out that father had not yet been
sentenced on his sexual molestation convictions, and he still had the right to appeal his
convictions. In light of the father’s failure to even acknowledge the abuse or harm, the
court found it was likely he would continue to abuse the children if he had access to
them. (Ibid.)
Here, we can reasonably infer that Luis may return home and harm the minor
children. We start with Luis’s past conduct, including a documented history of mental
illness coupled with two violent acts towards Josue, a contemporaneous suicide attempt,
and an ongoing refusal to accept medications or therapy. It is reasonable to infer from
Luis’s absence that he has not been receiving treatment and in all likelihood, his
condition has worsened. There is also evidence that Luis has returned home after other
incidents in the past, and he does not have any other refuge, thus increasing the likelihood
that he will eventually return home. As his sister Brenda noted, “He always comes back.
He comes in through the window. Even if we lock the doors, he comes in through the
windows. We can’t do anything about it.” Father also made statements demonstrating
the lack of viable alternatives: “He needs to be in jail for a good year. That will set him
straight. That will give us some peace. If not, we will go to Mexico. We can’t be living
like this, thinking that he’s going to come over here, and come in through the windows.”
Even though parents are attending NAMI meetings and state that they plan to call police
if Luis arrives at home, earlier statements provide a basis for questioning parents’
resolve. Mother told social workers on October 17, 2012, that she planned to obtain a
restraining order, but ultimately did not act until the day after her children were detained
a week later.She has also expressed regret at having called the police and refused to assist
with Luis’s prosecution. Finally, because Luis was never served, there is no restraining
order in place to prevent him from entering the home.
These facts constitute substantial evidence supporting the jurisdictional finding
under section 300, subdivision (b).

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Substantial Evidence Supports a Finding of Jurisdiction Under Section 300,
Subdivision (j)

Section 300, subdivision (j), provides: “The child’s sibling has been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk
that the child will be abused or neglected, as defined in those subdivisions. The court
shall consider the circumstances surrounding the abuse or neglect of the sibling, 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.”
Because the jurisdictional finding under subdivision (b) is supported by substantial
evidence, we need not consider whether jurisdiction also exists under subdivision (j).
“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 [trial]
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, substantial evidence supports the jurisdictional findings under
subdivision (j). The two suffocation incidents provide substantial evidence that Josue
suffered harm as a result of parents’ failure to protect him from Luis. Maria and Jessica
are older than Josue and deny being afraid of Luis, but there is a substantiated history of
violence in the home from which the dependency court could reasonably infer that any of
the three siblings could be at risk of harm under section 300, subdivision (a) or (b). In
2010, the Department substantiated allegations that Luis hit Maria with a clenched fist on
her face, neck, and arms hard enough to leave bruises. Luis’s history and mental illness
indicate his potential presence in the home place all the minor children at risk of physical

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harm. We conclude substantial evidence supports the findings under section 300,
subdivision (j).

DISPOSITION

The orders are affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

KUMAR, J.*

* Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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