Filed 6/15/21 Jonathan E. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
JONATHAN E.,
F082242
Petitioner,
(Super. Ct. No. 18CEJ300315-3)
v.
THE SUPERIOR COURT OF FRESNO OPINION
COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Gary L.
Green, Commissioner.
Jonathan E., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Real Party in Interest.
-ooOoo-
* Before Poochigian, Acting P.J., Peña, J. and Smith, J.
Petitioner Jonathan E. (father), in propria persona, seeks an extraordinary writ
from the juvenile court’s orders denying him reunification services under Welfare and
Institutions Code section 361.5, subdivision (b)(6)1 and setting a section 366.26 hearing
as to his now 19-month-old son, Julius. (Cal. Rules of Court, rule 8.452.) Section 361.5,
subdivision (b)(6) requires the court to find by clear and convincing evidence that, as
relevant here, the child was adjudicated a dependent as a result of severe physical harm to
the child or the child’s sibling and it would not benefit the child to pursue reunification
services with the offending parent. The sibling who suffered severe physical harm in this
case was father’s teenage stepson, Dylan. In October 2018, father physically assaulted
and verbally abused Dylan over an estimated three to four hours. Dylan and Julius’s
mother and father’s wife, Jessica E. (mother), was present during part of the assault but
did not intervene. She was denied reunification services for Dylan (§ 361.5, subd. (b)(6))
but was provided services to reunify with Dylan’s twin sister, Chloe. At the six-month
review hearing, the juvenile court terminated mother’s services and set a section 366.26
hearing. Mother filed a writ petition which we denied.2 She was also denied
reunification services in Julius’s case and filed a writ petition which is pending in our
case No. F082256.
Father seeks relief by way of a writ ordering the juvenile court to vacate the
section 366.26 hearing and order reunification services. He contends his constitutional
rights were violated because Julius was wrongfully removed from his custody (Fourth
Amendment), he was “prosecuted” twice for the same crime (a reference to the juvenile
court’s intervention in Dylan and Julius’s cases because of his physical abuse of Dylan)
(Fifth Amendment) and he was not allowed to defend himself in Dylan’s case because he
1 Statutory references are to the Welfare and Institutions Code.
2 On our own motion, we take judicial notice of our case file and opinion in case
No. F080080. (Evid. Code, §§ 452, subd. (d), 459, subds. (a)-(c).)
2
is not the biological father (due process). He further argues Dr. London, the psychologist
who conducted his risk assessment, was biased yet the juvenile court relied heavily on
her assessment. Finally, he contends the restrictions imposed because of the COVID-19
pandemic delayed the proceedings, interfered with his ability to attend classes and
prevented him from fully bonding with Julius. He informs this court that he completed a
parenting program and a parent partner support group, only missed one session of his
child abuse batterers program and received instruction in emergency dosing and
injections to treat Julius’s medical condition.3 At oral argument, he presented these
arguments, adding that he and Dylan had repaired their relationship and Dylan did not
hold a grudge against him.
We stayed the section 366.26 hearing scheduled for May 5, 2021 and directed real
party in interest to file a letter brief, addressing the evidence that supports the juvenile
court’s finding it would not benefit Julius to pursue reunification services with father,
specifically addressing the factors listed in section 361.5, subdivision (i).4 The parents
were granted leave to explain why the evidence was insufficient to support the finding
based on the same factors. Real party chose not to respond with particularity regarding
3 Julius has a genetic condition which impairs his ability to retain salt.
4 In determining whether reunification services will benefit the child under
section 361.5, subdivision (b)(6), subdivision (i) of that same section requires the juvenile
court to consider any relevant information, including the following: (1) the specific act
or omission comprising the severe physical harm inflicted on the child or the child’s
sibling or half sibling; (2) the circumstances under which the abuse or harm was inflicted
on the child or the child’s sibling or half sibling; (3) the severity of the emotional trauma
suffered by the child or the child’s siblings or half sibling; (4) any history of abuse of
other children by the offending parent; (5) the likelihood that the child may be safely
returned to the care of the offending parent within 12 months with no continuing
supervision; and (6) whether or not the child desires to be reunified with the offending
parent.
3
the factors but instead relied on its opposition. Father’s responsive brief reiterated the
arguments he raised at oral argument.
The question on appeal is whether substantial evidence supports the juvenile
court’s findings and orders. We conclude that it does, deny the petition and lift the stay.
PROCEDURAL AND FACTUAL SUMMARY
In October 2019, Julius was born prematurely at 36 weeks gestation and admitted
to the neonatal intensive care unit. Mother reported using marijuana throughout her
pregnancy for pain management and nausea, and to increase her appetite. The year
before, her twins, then 17-year-old Chloe and Dylan, were removed from her custody
after father hit Dylan for three to four hours on the legs, buttocks, ribs and genitals with a
leather belt, a metal hose from a vacuum cleaner and a metal bat. Father beat Dylan so
hard the vacuum attachments broke. Father also picked him up by the legs, pushed him
against the wall, punched him in the ribs and picked him up by the hair. Mother
witnessed the beating but did not intervene. She reportedly said that Dylan was a
“ ‘jerk’ ” and deserved the beating. Dylan disclosed being physically abused by father
several times before that incident. Mother was provided parenting, mental health and
domestic violence services to reunify with Chloe. The court denied mother reunification
services for Dylan (§ 361.5, subd. (b)(6)) and ordered him into long-term foster care. In
September 2019, the juvenile court terminated mother’s services for Chloe based on the
results of a psychological evaluation and risk assessment performed by Dr. London that
indicated she would not be willing or able to intervene on Chloe’s behalf to protect her
from father. The court set a section 366.26 hearing in January 2020 as to Chloe.
Mother claimed her doctor knew she was using marijuana during her pregnancy
with Julius and child protective services misunderstood the circumstances involving her
twins. Dylan had many behavioral problems and was using drugs when he had the
4
altercation with father. It was a “ ‘teenager thing’ ” which no one was willing to
consider.
The Fresno County Department of Social Services (department) took Julius into
protective custody and placed him in foster care. The department filed a dependency
petition, alleging Julius was at a substantial risk of suffering serious physical harm or
neglect because of his parents’ marijuana use and mother’s failure to protect Julius’s
half sibling, Dylan, from father’s physical abuse. (§ 300, subds. (b) & (j).)
The juvenile court ordered Julius detained and offered the parents parenting
classes, substance abuse, mental health and domestic violence evaluations and random
drug testing. The court ordered weekly supervised visitation and set the
jurisdictional/dispositional hearing (combined hearing) for January 23, 2020.
Prior to the combined hearing, the department filed a third amended petition,
adding a section 300, subdivision (a) (serious physical harm) count as to father, alleging
his abuse of Dylan placed Julius at a substantial risk of suffering serious physical harm.
As factual support, the petition alleged, “On or about October 30, 2018, Julius’s half-
sibling, Dylan, disclosed [father] has physical[ly] abused him. The physical abuse
consisted of, but is not limited to, hair pulled out, wounds and bruises on his right thigh
and buttocks. The child, Dylan, disclosed [father] hit him for a duration of 3-4 hours on
his legs, buttocks, ribs and genitals, using a leather belt, a metal hose from a vacuum
cleaner and a metal bat. In addition, Dylan disclosed [father] picked him up from his
legs, pushed him against the wall, punched him in the ribs with a closed fist and picked
[him up] by pulling his hair. Dylan further disclosed being physically abused on several
occasions by [father]. Julius would be at risk of physical harm if left in the care of his
[father].” The amended petition also included an additional section 300, subdivision (b)
count as to each parent, alleging father’s physical abuse of Dylan and mother’s failure to
intervene placed Julius at a substantial risk of suffering serious physical harm.
5
In its report for the dispositional hearing, the department informed the juvenile
court the parents were participating in some of the services offered to them. They
enrolled in a parenting class, which they were scheduled to begin on March 24, 2020.
They completed substance abuse and domestic violence assessments and were referred
for outpatient treatment, the child abuse intervention program and a mental health
assessment. They also enrolled in random drug testing and each tested positive four
times for marijuana. Mother also tested positive for creatinine and opiates.
The department recommended the juvenile court deny mother reunification
services under section 361.5, subdivision (b)(7) because she was denied reunification
services as to Dylan under section 361.5, subdivision (b)(6) and under section 361.5,
subdivision (b)(10) because her services as to Chloe were terminated and she failed to
make subsequent efforts to resolve the problem that required Chloe’s removal. The
department recommended the court deny father services under section 361.5,
subdivision (b)(6) because of the severity of the physical abuse he inflicted on Dylan. In
determining whether services would benefit Julius notwithstanding the applicability of
section 361.5, subdivision (b)(6) and (7), the department considered the severity of
Dylan’s injuries, Dylan and Chloe’s disclosure that father previously abused them,
mother’s belief that Dylan deserved the abuse, and the parents’ unwillingness to take
responsibility for the abuse. The department opined it would not be in Julius’s best
interest to provide the parents reunification services.
On January 23, 2020, the juvenile court set a contested combined hearing for
March 18, 2020. The hearing was continued until July 16, 2020.
In June 2020, social worker Brittany Smith contacted the parents’ service
providers about their progress. They were participating in a parenting class and expected
to graduate in August 2020. They were testing negative for all substances. Their
substance abuse counselor, however, said father became easily agitated, was difficult to
6
work with and was “borderline hostile.” Father was participating in the child abuse
intervention program and completed seven classes before classes were cancelled in
March 2020 because of the COVID-19 pandemic. Mother was dropped from the
program for nonattendance and required to start again when classes resumed. The
parents were referred for mental health assessments in January 2020 but declined the
appointment, stating they were too busy. Father said he was not aware of the referral.
Smith referred them again in June 2020. Mother informed Smith she and father were
seeing a private therapist. The parents provided a letter from their therapist showing they
participated in individual therapy sessions from February 24 to April 29, 2020.
On July 16, 2020, the juvenile court conducted the jurisdictional hearing. Counsel
argued the case and the parents’ attorneys submitted documents evidencing their
participation in services. The court continued the matter for the following day to allow it
time to read all of the department’s reports and review the exhibits.
On July 17, 2020, the juvenile court sustained the third amended petition, finding
Julius was a minor described by section 300, subdivisions (a), (b) and (j). The court
dismissed the subdivision (b) counts alleging the parents’ marijuana use placed Julius at
risk of harm (counts b-1 and b-2). The court continued the matter to July 22 for
disposition. After hearing the parents’ testimony on July 22, the court ordered the parents
to undergo a risk assessment and continued the dispositional hearing. The hearing was
ultimately conducted as a contested hearing on January 8, 2021.
Meanwhile, Dr. London met with the parents over several days in September 2020
to assess their cognitive integrity, psychological functioning, and level of risk to Julius.
She reported her findings in November 2020. Mother told Dr. London Dylan was in a
transitional home. He discontinued all visits with her two to three months before, but she
did not know why. She had unlimited video conferences with Chloe, who she believed to
be doing “fairly well.” She explained the twins were removed because father physically
7
abused Dylan and she did not stop it. Dylan was having behavioral issues and problems
at school. She later found out he was getting pills from other students at school. She
regretted not watching over him and checking on him more.
Father told Dr. London that Dylan was defiant. When he was with his biological
father, “ ‘he got to run the house.’ ” Father was raised in a military family and imposed
structure in the family. Dylan did not like the structure. He bullied his sister and was
defiant to mother. He ditched school, lied to his teachers and went on websites that were
forbidden to him. Father initially attempted rewards and gifts and positive reinforcement
but found spanking Dylan’s “ ‘butt’ ” with his hand got better results. As to the incident
with Dylan, father said, “ ‘he got his butt whooped. It was a three to four hour long
discussion, arguing, and him making excuses. He would get his butt whooped during
points in the conversation.’ ” Father claimed he spanked Dylan with his hand and with a
belt. He was holding a bat but did not hit Dylan with it.
Dr. London opined mother posed a substantial risk of harm to Julius, explaining:
“While [mother] did not herself physically abuse [Dylan], she was
neglectful in that she not only allowed it to happen, but watched the abuse
occur over a period of hours and did not intervene in order to stop it.
Although [mother] indicated what occurred with Dylan would never
happen again, at no time during this evaluative process did she express any
emotional distress or articulate remorse for that which her son suffered as a
result of her neglect. At no time did she exhibit enhanced insight and/or
self-awareness regarding the fact that she allowed her husband to physically
abuse her son for hours and she did nothing to stop it. At no time did
[mother] identify the possible emotional and psychological ramifications of
her husband’s abuse or of her inaction on Dylan. She did not express any
desire to reconnect with Dylan emotionally or even spend time with him at
any point in the future. To the contrary, [mother] noted Dylan has decided
that he does not want any contact with her for unknown reasons.”
Dr. London continued:
“[Mother] remains married to the man who severely abused her son.
At no time during the clinical interview did she express any anger toward
8
her husband for the abuse her son suffered or for the fact that this abuse
resulted in her two eldest children being removed from her care and
custody. Consistent with that which was reported by [Smith], there is
nothing to suggest that [mother] would be willing and/or have the ability to
protect her child from abuse in the future. Results of this assessment
suggest [mother] is one who seeks approval from others and will modify
her behaviors in order to avoid disapproval. Moreover, she exhibits
dependent personality features.”
Dr. London also concluded father posed a substantial risk of harm to Julius. The
risk assessment indicated that he demonstrated poor judgment and self-awareness. He
blamed Dylan for the abuse he suffered and continued to justify the abuse he perpetrated
against Dylan. Although he acknowledged learning other forms of discipline from his
parenting classes, he did not express remorse for his actions at any time during the
evaluation. Dr. London found no evidence to suggest that father had the ability to
provide an emotionally, physically, psychologically safe and nurturing home
environment for Julius. Given father’s limited frustration tolerance, poor judgment and
poor insight, she believed it reasonable he could react in an abusive manner with Julius if
Julius did not do exactly what father wanted, when he wanted and how he wanted.
On January 8, 2021, the juvenile court convened the contested dispositional
hearing and received into evidence a letter from father’s therapist and certificates
evidencing the parents completed a parenting class. The court also accepted stipulated
testimony from Dylan that he was voluntarily visiting the parents. He did not bear a
grudge against father and did not have any concerns about Julius being placed in their
care. County counsel submitted its case on its report.
Dr. London testified she determined father lacked judgment during the clinical
interview when he attempted at length to justify the abuse perpetrated against Dylan. He
told her all the reasons why it happened in an attempt to justify it but did not
acknowledge that it was wrong to abuse another human being. She maintained her
opinion Julius would be at risk in father’s custody.
9
Mother’s attorney questioned Dr. London about the propriety of conducting a
second risk assessment on mother and her ability to be objective in this case. Dr. London
did not realize until their first meeting that she had previously evaluated mother. Asked
whether it would have been a “best practice” to have another psychologist evaluate
mother, Dr. London answered, “You know, I don’t know,” adding another clinician
would not have the advantage of background information. Additionally, mother did not
object to being evaluated by Dr. London. Dr. London disagreed she was “just
reconfirming” the prior evaluation and considered Julius’s circumstances a new case, a
“whole new evaluation process.” It would not change her opinion to know that Dylan
visited mother and that Dylan forgave her. Asked what she found most troubling about
mother, Dr. London stated her poor insight into the extent of trauma Dylan experienced
and her lack of remorse and accountability.
The juvenile court asked Dr. London whether father was capable of safely having
Julius in his care. Dr. London thought it was “possible,” but she was not confident that
he could be safe with him. In order to believe father was safe, she needed him to “take
responsibility for his actions, not provide a litany of reasons as to essentially why Dylan
deserves to be abused or why the abuse was justified.” She needed him to express
remorse and understanding that Dylan experienced trauma and acknowledge his need to
address his low frustration tolerance, poor anger management and inappropriate
interactions with children.
Dr. London had similar concerns about mother’s lack of remorse and insight.
Mother expressed no dissatisfaction with father regarding the degree of abuse he
inflicted. Dr. London also questioned mother’s ability to protect Julius if father became
upset, dissatisfied or enraged. To consider mother safe, Dr. London needed to see that
she was remorseful, truly understood the psychological damage Dylan suffered because
of the abuse and had the ability to protect Julius should father become angry.
10
Father testified that he was remorseful that the incident with Dylan occurred and
that his actions resulted in mother not having custody of her twins and that they could not
bring Julius home from the hospital. He was remorseful for not being there for Dylan
and understanding that he was grieving the loss of his father. He understood that his
actions were wrong and that he traumatized Dylan. Father wished he had handled the
situation differently. He apologized to Dylan and told him he wished he had known
better.
Mother testified she last used marijuana around March 5, 2020. She completed
12 of the 26 required sessions for the domestic violence program and 31 of the 52
required sessions to complete the child abuse intervention program. She better
understood through the child abuse intervention program how trauma in her childhood
affected her and that she needed to stop the cycle of abuse from impacting her children.
She was sorry she did not intervene to help Dylan. She should have paid more attention
to him and insisted he get therapy to deal with his father’s death. She did not believe
Dylan was responsible for the abuse he suffered. She visited with Julius twice a week.
Most of the visits were virtual but she attempted to engage him by talking to him about
what he was doing. She believed Julius was bonded to her. If necessary, she would
separate from father to gain custody of Julius. However, she had no plan to separate from
him unless she was court ordered. She believed she could support herself and Julius.
Mother was present during the incident between father and Dylan for an hour or
more and most of what she witnessed was verbal interaction. She did not witness
physical abuse or physical injuries. However, father showed her the baseball bat and how
he struck Dylan with it. When pressed, she admitted seeing father strike Dylan with the
bat in the stomach. She believed father physically and verbally abused Dylan but did not
believe father had a problem with anger. The only domestic violence in her home was
between herself and Dylan and father and Dylan.
11
Smith testified she had been the social worker assigned the case since March 2020.
Neither parent expressed remorse to her about Dylan’s experience nor acknowledged the
severity of the harm inflicted. However, she never directly asked mother if she was
remorseful. Smith did not believe Julius could be safely placed in parental custody
without court supervision. She believed based on the parents’ testimony they were still
minimizing their actions. She had not seen either parent have a significant change in
their respective understanding of the case, although father appeared less aggressive and
more cooperative.
County counsel argued the evidence supported denying the parents reunification
services; the only issue was whether providing them services would serve Julius’s best
interest. County counsel argued it would not, citing the severity of the harm inflicted on
Dylan, the parents’ minimizing their role in the abuse, the length of time Julius had been
out of their care and their failure to benefit from the services offered since the detention
hearing. Minor’s counsel concurred.
The parents’ attorneys argued for reunification services based on Julius’s best
interest. Father’s attorney argued father believed his conduct with Dylan was
disciplinary, which he realized was wrong. Dylan’s stipulated testimony demonstrated
father had taken steps to reconcile the situation and Dylan was healing emotionally from
the incident. She pointed out father did not have a history of abuse and was stable and
sober but was not given credit for these positive aspects of his life. She did not believe
he should be penalized by losing custody of his only child for an incident that happened
two years before and for which he did his best to atone.
Mother’s attorney pointed out mother was not the perpetrator of the abuse but took
full responsibility for not intervening and had developed a relationship with Dylan.
Mother had completed a significant portion of her services and could complete them if
given more time. Although mother was hindered by the limitations of virtual visitation,
12
she developed a strong bond with Julius. Additionally, although counsel was not critical
of Dr. London’s method of assessing mother, he argued best practice would have been to
refer mother to a different therapist for the psychological evaluation.
The juvenile court found Dr. London and Smith fully credible but the parents
evasive. The court found Dylan suffered severe physical abuse based on Dylan’s account
that father physically abused him for three to four hours using a leather belt and metal
tube, threatened him with a baseball bat, picked him up by the leg, pushed him against
the wall and picked him up by the hair. The court found there was clear and convincing
evidence that Dylan suffered severe physical harm, stating, the “record made it so clear
that this young man endured what could only be legally characterized as severe physical
abuse.” As to mother, the court found section 361.5, subdivision (b)(10) did not apply
because she made reasonable efforts to treat the problem. However, it could not escape
the applicability of section 361.5, subdivision (b)(7) since she was previously bypassed
for services under subdivision (b)(6).
The juvenile court stated it was relying heavily on Dr. London’s expertise and
specifically addressed the fact that Dr. London performed both of mother’s evaluations.
The court found there was no showing another psychologist would have reached a
different conclusion and mother’s own testimony supported Dr. London’s opinion. The
court noted mother testified, when asked what she learned from her domestic violence
classes, “I have done actions that were not helpful.” That demonstrated to the court she
minimized the events and grounds leading to the removal of Julius. As to her testimony
regarding the specifics of the incident with Dylan, her testimony was a “moving target.”
She was inconsistent as to the duration of her presence at the event and what she
observed. The court stated, “[Mother] now makes the excuse that she was not
sufficiently engaged with Dylan to have prevented or mitigated the abuse that occurred to
Dylan. Although mother notes that she is to blame in connection with the incident, she
13
continues to attribute blame to Dylan at least in part. Of key concern to this court is
mother’s dependence on the father. Although the mother claims she is willing to leave
the father, she appears financially dependent on him and has no viable support aside from
him. In addition, she has volunteered today that the father should be in Julius’s life.”
As to father, the juvenile court stated, “When asked why the [d]epartment is
involved in this case, [father] could not explain the depths of the [d]epartment’s concerns
for Julius’s safety. [Father] was poised to explain that he needs a chance to prove
himself. [Father] engaged in the same pattern he did with Dr. London to make excuses
and to explain things away. As to the remorse for his actions, [father] noted his regret.
[Father] appears to regret the results of his actions. When pressed to address the
accountability, [father] seemed to focus on the use of a belt, vacuum hose, hands and bat
and to indicate the use of those was wrong. [Father] used the excuse of the discipline in
his own family, which is apparently physical confrontation. But in the case of Dylan,
there was no intent to harm. That shows the disconnect.”
The juvenile court continued, “[Father’s] testimony reveals that he continues to
blame Dylan, although [father] testified that he did not blame Dylan. In the next round,
he testified that Dylan, ‘Should have talked to us more.’ … [¶] [Father] noted that
Dylan should have communicated better. He also noted he still places an onus on Dylan.
[Father] has had multiples opportunities to show true, genuine remorse and
accountability…. When asked today to describe his remorse, [father] could only indicate
that he was remorseful that the event with Dylan occurred and that … ‘It led to all of
this,’ … including the removal of Julius.”
The juvenile court removed Julius from his parents’ custody and ordered a
minimum of two supervised visits a month. The court denied mother reunification
14
services under section 361.5, subdivision (b)(7)5 and father under subdivision (b)(6) and
set a section 366.26 hearing for May 5, 2021.
DISCUSSION
Constitutional Violations
Father contends various of his constitutional rights were violated because the
department and the juvenile court acted based strictly on the circumstances of Dylan’s
case without cause to remove Julius and then penalized father for his prior conduct
without giving him an opportunity to “defend” himself and remediate his behavior. As a
preliminary matter, it must be stressed that juvenile dependency proceedings are civil in
nature, not criminal. They are designed to protect the child, not prosecute the parent.
Consequently, the juvenile court has the authority to issue a protective warrant to remove
a child from parental custody if there is evidence the child may be at risk. In doing so,
the court may consider the family history. Because dependency proceedings are not
criminal, Fourth and Fifth Amendment claims (i.e. unlawful seizure and double jeopardy)
do not pertain. A parent is not a “defendant” on trial.
Due process, however, is very germane in juvenile dependency proceedings
because the “parent’s interest in the companionship, care, custody and management of his
or her children is a fundamental civil right. [Citation. ] Children, too, have a compelling
independent interest in belonging to their natural family. [Citation. ] In addition, each
5 In ruling the juvenile court stated it was denying mother reunification services
under section 361.5, subdivision (b)(7) and (10), although it previously stated it was not
denying her services under (b)(10) because the evidence did not support it. The minute
order for the hearing also indicates she was denied services under subdivision (b)(7)
and (10). Given the court’s express statement the evidence did not support a denial under
subdivision (b)(10), we conclude the court’s subsequent statement was an oversight (i.e.,
a rote reading of a prepared order) and that the minute order is a clerical error. Although
it does not affect our analysis in mother’s case, we urge the juvenile court to correct its
record to reflect the proper ruling.
15
child has a compelling interest to live free from abuse and neglect in a stable, permanent
placement with an emotionally committed caregiver. [Citation. ] The governmental
interest in a child’s welfare is significant. ‘[T]he welfare of a child is a compelling state
interest that a state has not only a right, but a duty, to protect.’ ” (In re Dakota H. (2005)
132 Cal.App.4th 212, 223.)
Due process in the dependency context generally focuses on notice and the
opportunity to be heard. (In re B.G. (1974) 11 Cal.3d 679, 688–689.) Specifically, a
parent whose child may be found subject to the juvenile court’s jurisdiction has a due
process right to be informed of the nature of the hearing, as well as the allegations upon
which the deprivation of custody is predicated, in order that he or she may make an
informed decision whether to appear and contest the allegations. (In re Wilford J. (2005)
131 Cal.App.4th 742, 751.) Further, unless limited exceptions apply, a parent is entitled
to services designed to reunify the family. (§ 361.5, subd. (a).)
Only a parent is afforded due process rights in dependency proceedings and a
stepparent is not a “ ‘parent.’ ” (In re Jodi B. (1991) 227 Cal.App.3d 1322, 1324.)
Consequently, father did not have a right to challenge the allegations in Dylan’s case,
which although they described his conduct, were allegations against mother—that she
failed to protect Dylan from physical and verbal abuse. Nor was father entitled to
services to reunify with Dylan. (Id. at p. 1329.) Since father did not have any parental
interest at stake in Dylan’s case, due process did not require his participation in those
proceedings. He does not claim any due process violations in Julius’s case, and we have
not identified any in our review of the case. The record reflects that father was
represented by counsel at all times and actively participated in the proceedings.
Jurisdiction
Although father concedes the incident with Dylan lasted three to four hours, he
contends that it was mostly verbal lecturing with occasional physical contact. He
16
contends there is no medical evidence to support allegations Dylan was physically
harmed. To the extent he now challenges the sufficiency of the evidence to support the
juvenile court’s jurisdictional findings that his physical abuse of Dylan placed Julius at a
substantial risk of physical harm, the record does not support his claim.6
The juvenile court’s authority to exercise its dependency jurisdiction over a minor
child derives from section 300 and its subdivisions describing various ways in which a
child has been harmed or is at risk of suffering harm. The court need only find by a
preponderance of the evidence that the child is described by one of the subdivisions in
order to assume jurisdiction over the child. Here, the juvenile court found Julius was a
child described under subdivisions (a), (b) and (j). Since father’s argument directly
implicates subdivision (a) of section 300 since it targets serious physical harm, we will
construe his statements as a challenge to the applicability of that subdivision and address
it directly.
Section 300, subdivision (a) applies when “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally
upon the child by the child’s parent or guardian.” (§ 300, subd. (a).) The statute
specifies, “For the purposes of this subdivision, a court may find there is a substantial risk
of serious future injury based on the manner in which a less serious injury was inflicted, a
history of repeated inflictions of injuries on the child or the child’s siblings, or a
combination of these and other actions by the parent or guardian that indicate the child is
at risk of serious physical harm.” (Ibid.)
The department offered evidence, which was undisputed, that father subjugated
Dylan over a three-to-four-hour period during which father physically abused him by
6 Although father did not rebut the evidence offered by the department to support
the allegations he physically abused Dylan, he may challenge the sufficiency of the
evidence to support them in his writ petition because the department bore the burden of
proof and jurisdictional findings can be raised on appeal from the dispositional orders.
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striking him on his legs, buttocks, ribs and genitals, using a leather belt, a metal hose and
a metal bat. He also picked Dylan up from his legs, pushed him against the wall,
punched him in the ribs and picked him up by the hair. Dylan sustained bruises on his
thigh and buttocks. It was further alleged father previously abused Dylan on several
occasions.
Given the extent of the physical abuse both in terms of its duration and the
mechanism as well as the injuries sustained, the juvenile court could find that father
placed Julius at risk of similar physical abuse and exercise its dependency jurisdiction
over him under section 300, subdivision (a).
Removal
“After finding that a child is a person described in Section 300, the court shall hear
evidence on the question of the proper disposition to be made of the child.” (§ 358,
subd. (a).) In order to remove a child from parental custody, the juvenile court must find
by clear and convincing evidence there is or would be a substantial danger to the child’s
physical or emotional well-being if the child were returned home and there are no
reasonable means by which the child’s physical health can be protected short of removal.
(§ 361, subd. (c).)
“The juvenile court has broad discretion to determine what would best serve and
protect the child’s interest and to fashion a dispositional order in accordance with this
discretion.” (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103–1104.) “In determining
whether a child may be safely maintained in the parent’s physical custody, the juvenile
court may consider the parent’s past conduct and current circumstances, and the parent’s
response to the conditions that gave rise to juvenile court intervention.” (In re D.B.
(2018) 26 Cal.App.5th 320, 332.) “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. [Citation.] ‘The parent need not be
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dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the child.’ ” (In re N.M.
(2011) 197 Cal.App.4th 159, 169–170.)
On a challenge to the juvenile court’s dispositional order, we review the finding to
determine whether substantial evidence supports it. We do so bearing in mind that the
juvenile court’s decision to order a child removed from parental custody must be
supported by the heightened standard of clear and convincing evidence. (In re Kristin H.
(1996) 46 Cal.App.4th 1635, 1654.)
Here, the juvenile court found Julius could not be placed in father’s custody
without subjecting Julius to a substantial risk of harm based on Dr. London’s opinion and
testimony which the court found credible. Dr. London opined that father exhibited low
frustration tolerance and poor judgment and insight. Even though he learned other forms
of discipline in his parenting classes, he persisted in blaming Dylan for the physical
abuse. She believed he could react in an abusive manner toward Julius under the right
circumstances. Father argues Dr. London was biased because she previously assessed
mother, inferring that her knowledge of the family’s history prevented her from rendering
a valid clinical judgment. There is, however, no evidence that Dr. London was biased.
She performed comprehensive psychological evaluations of mother and father, including
interviews, record review and psychological testing and provided the court a full report of
her findings and opinions. Mother’s attorney specifically asked Dr. London if her
opinion was swayed by her knowledge of mother’s history. Dr. London said it was not;
she considered Julius’s a “new” case. No one challenged the reliability of Dr. London’s
methodology or her conclusions based on the testing and information provided.
Further, the juvenile court did not detect any bias in Dr. London’s assessments or
opinions. Rather, the court found Dr. London very credible and her opinion useful in
determining whether father could safely parent Julius. The court found that he could not,
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and father fails to show it is reasonably probable another psychologist would have
concluded differently. On the evidence before it, the juvenile court could properly find
there was or would be a substantial danger to Julius’s physical or emotional well-being if
he were placed in father’s custody and there was no reasonable means to protect him
short of removing him from father’s custody.
Denial of Reunification Services
When the juvenile court removes a child from parental custody, it must provide
services to the parent to reunify with the child unless it finds one of the exceptions listed
in section 361.5, subdivision (b) applies. (§ 361.5, subds. (a) & (b).) The juvenile court
denied father reunification services under section 361.5, subdivision (b)(6), which applies
when the child has been adjudicated a dependent pursuant to any subdivision of
section 300 as a result of the infliction of severe physical harm to the child or a
half sibling of the child by a parent and the court finds it would not benefit the child to
pursue reunification services with the offending parent. Severe physical harm may be
based on, but is not limited to, deliberate and serious injury inflicted on a child’s body or
the body of a sibling or half sibling of the child by an act or omission of the parent.
(§ 361.5, subd. (6)(A) & (C).)
In determining whether reunification services would benefit the child under
section 361.5, subdivision (b)(6), the juvenile court must consider any relevant
information, including the specific act or omission comprising the severe physical harm,
the circumstances under which the abuse or harm was inflicted, the severity of the
emotional trauma suffered by the child or the child’s half sibling, any history of abuse of
other children by the offending parent, the likelihood the child may be safely returned to
the care of the offending parent within 12 months with no continuing supervision and
whether or not the child desires to be reunified with the offending parent. (§ 361.5,
subd. (i).)
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Here, the juvenile court concluded that father severely physically abused Dylan
and that providing him reunification services would not benefit Julius. Father’s
prolonged and severe physical assault on Dylan and previous incidents of abusing Dylan
and Chloe amply support the court’s finding.
For this court to overturn the juvenile court’s denial of services order, father would
have to show that substantial evidence does not support application of section 361.5,
subdivision (b)(6) as he bears the burden on appeal. Father has failed to carry his burden.
Consequently, we must deny his writ petition.
DISPOSITION
The petition for extraordinary writ is denied. The order staying the section 366.26
hearing is lifted. This opinion is final forthwith as to this court pursuant to California
Rules of Court, rule 8.490(b)(2)(A).
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