In re Antonio T. CA4/2

• Court: California Court of Appeal
• Decided: February 8, 2024
• Docket: E081656
• Status: Unpublished

Opinion

Filed 2/8/24 In re Antonio T. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re ANTONIO T., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E081656 Plaintiff and Respondent, (Super.Ct.No. J295711) v. OPINION KEVIN T.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Reversed.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and

Appellant Kevin T.

Tom Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff

and Respondent. Kevin T. (Father) appeals from the juvenile court’s dispositional orders regarding

his son, Antonio T. The court found true allegations of domestic violence between Father

and the paternal grandparents, and it took jurisdiction over Antonio under Welfare and

Institutions Code section 300, subdivision (b). (Unlabeled statutory citations refer to this

code.) The court then removed Antonio from Father’s custody, placed Antonio with

Silvia T. (Mother), granted Mother sole legal and physical custody, ordered supervised

visitation for Father, and terminated jurisdiction.

Father argues that the record does not contain substantial evidence to support the

jurisdictional finding or the removal order. He also argues that the court abused its

discretion by granting Mother sole legal and physical custody and ordering only

supervised visitation for him. We agree that the record does not contain substantial

evidence to support the jurisdictional finding under subdivision (b) of section 300.

Accordingly, we reverse the jurisdictional finding, the dispositional findings and orders,

and the custody and visitation order.

BACKGROUND

I. Detention

Father lives with the paternal grandparents. At the time of the relevant events,

Mother and Father shared legal and physical custody of 14-year-old Antonio pursuant to

a family court order. Antonio lived in Mother’s home but spent every other weekend

with Father. Father also had visitation rights on two weekdays for several hours, but he

had not been visiting Antonio during the week. Father had sole legal and physical

2 custody of seven-year-old Victoria, Antonio’s half-sister. (Victoria is the subject of a

separate dependency case and is not a subject of this appeal.)

Father called law enforcement in January 2023 because of a dispute with the

paternal grandfather. Father reportedly “felt like paternal grandfather was turning

Victoria against him.” The detention report contains little detail about the incident.

Father reported that officers “flipped the situation on him” and said that Father was

isolating Victoria from the paternal grandparents. The officers stopped him from going

to Victoria and arrested him for obstructing a peace officer (Pen. Code, § 148, subd.

(a)(1)) and misdemeanor child abuse (id., § 273a, subd. (b)). Several days later, San

Bernardino County Children and Family Services (CFS) received a referral alleging that

Father physically and emotionally abused Victoria, and the reporting party was concerned

that Antonio was at risk of similar abuse.

Antonio told the social worker that he and Victoria were afraid of Father. There

were a lot of verbal arguments in Father’s home. Father got mad at little things, and

Antonio and Victoria did not want to do something wrong. Father had mood swings and

cursed at the children when he was upset. When Victoria was three or four years old,

Father spanked her “‘really hard’” on her buttocks.

According to Mother, Antonio worried about Father because Father was depressed

and had mood swings. Antonio told her that he “walk[ed] on eggshells” at Father’s

home. The children had to stay in one room of the house, and Father made Antonio keep

Victoria away from the paternal grandparents. Father screamed at Antonio for no reason,

cursed at him, and called the police on the child.

3 Father reported that the paternal grandparents were the aggressors in the home and

called them “‘pathological liars.’” He stated that the detention report in Victoria’s case

contained numerous false allegations. He believed that the children were being

manipulated to say that they feared him and that the paternal grandparents and the

children’s mothers were working together to take his children away. Father said that

Victoria could have claimed to be afraid of him because she was dyslexic, and she was

“saying things that she believed people wanted to hear.” He denied cursing at Antonio.

The social worker reviewed the detention report in Victoria’s case. According to

that report, Victoria said that Father slaps her across the face with force when she is in

trouble. Father did not allow her to be out of his sight in the home and did not permit her

to speak to the paternal grandparents.

CFS filed a petition alleging that Antonio was a person described by section 300,

subdivision (b), because Father had untreated mental health issues and Mother knew or

reasonably should have known of those issues. The petition also alleged that there was

an open dependency case with respect to Victoria and that Father had physically abused

her, placing Antonio at substantial risk of similar abuse under subdivision (j) of section

300.

In January 2023, the juvenile court detained Antonio from Father but not from

Mother. Antonio remained in Mother’s home.

II. Jurisdiction and Disposition Report

When the social worker interviewed Father for the jurisdiction/disposition report,

Father denied that he slapped, hit, or physically abused Victoria. He called law

4 enforcement to report “‘parental alienation,’” because the paternal grandmother told

Victoria that he was a bad parent. He found Victoria in the paternal grandmother’s room,

took the child by the hand, and walked her out of the room. There was no physical

altercation. He was arrested for obstruction of a child abuse investigation when he tried

to enter the home while officers were investigating; he was concerned that the paternal

grandmother was present during Victoria’s interview. Father said that Victoria had a

tendency to lie and embellish stories, and she had issues at school with lying, stealing,

and being aggressive toward staff.

Father said that he did not use physical discipline with Antonio. He characterized

Antonio’s fear of him “as a natural fear a child has of their parent.” Antonio had been

getting into trouble at school, and Father believed that Antonio was afraid of being

confronted about his behavior. Father said that he was stern but appropriate with

Antonio.

Father was arrested in 2015 and 2016 for engaging in domestic violence with

Victoria’s mother. (The two were no longer in a relationship.) He denied engaging in

domestic violence with the paternal grandparents. But he described two incidents that

became physical: In December 2020, the paternal grandfather threw him to the floor and

stomped on his face. The children were present during that incident. And on some

unspecified date, the paternal grandfather repeatedly poked Father in the chest, and

Father pushed him away. On that occasion, the paternal grandfather had attempted to

remove Victoria from Father’s room.

5 Father had contacted law enforcement roughly 15 times because the paternal

grandparents interfered with his parenting practices. He acknowledged “the concerns”

with his living situation, but he was unable to move out of the paternal grandparents’

home at that time.

Father had a psychiatric evaluation in 2016, and there were no specific findings or

diagnoses. He denied any mental health issues and had not been prescribed any

psychotropic medications. He served in the military and was honorably discharged in

2010; after completing his active duty, he underwent a battery of tests and engaged in

counseling. He did not suffer from posttraumatic stress disorder.

Antonio again reported that he was afraid of Father and that Father had mood

swings. Father punished him by cursing at him, prohibiting him from watching

television, or making him read a book. Approximately two years ago, Father pulled

Antonio’s hair and hit him on the buttocks with an open hand. And on some unspecified

date, Antonio suffered a bruise on his eye when Father threw a cup. CFS responded on

that occasion, but Antonio lied to the social worker and denied that Father caused the

injury. Recently, he saw Father “push Victoria out of the way.” Antonio estimated that

Father had called law enforcement on the paternal grandparents 70 to 80 times.

Typically, the arguments with the paternal grandparents were not violent. But on one

occasion, Father pushed the paternal grandfather in self-defense. Father did not permit

Antonio to communicate with the paternal grandparents. Besides one short phone call,

Antonio had not visited with Father since the start of this matter. He was not interested in

visiting Father.

6 Victoria reported that Father punches her on the back to discipline her. She said

that he does not punch her anywhere else, and he had not slapped her in the face. He last

hit her roughly one year ago. She denied that Father punched or slapped her during the

recent incident when he was arrested. He called law enforcement because she talked to

the paternal grandfather while Father was sleeping. She was not supposed to leave the

room or have a relationship with the paternal grandparents. Victoria described Father’s

home as happy, sad, and mad. Father and the paternal grandparents always fought and

argued. Victoria said that the fights are not physical, but they “‘used’ to be physical.”

Mother noted concerns about Father’s “‘anger issues’” but denied any knowledge

of an untreated mental health condition. She said that Father yelled and screamed when

they argued during their marriage, but their fights did not turn physical. Mother had

never seen marks or bruises on Antonio after his visits at Father’s home.

III. Amended Petition and Jurisdiction and Disposition Hearing

CFS filed an amended petition a few days before the May 2023 jurisdiction and

disposition hearing. The agency added a count under subdivision (b) of section 300. It

alleged that Father engaged in domestic violence with the paternal grandparents, placing

Antonio at substantial risk of emotional and physical harm.

At the hearing, CFS asked the court to sustain the allegations of domestic violence

with the paternal grandparents, and the agency moved to dismiss all of the other

allegations. The court found the allegations of domestic violence to be true and

dismissed the remaining allegations. It also declared Antonio a dependent of the court,

removed him from Father’s custody, and placed him in Mother’s custody. The court then

7 granted Mother sole legal and physical custody of Antonio and ordered two hours of

supervised visitation per week for Father. The court dismissed the amended petition and

terminated jurisdiction.

DISCUSSION

Father argues that the record does not contain substantial evidence to support the

juvenile court’s jurisdictional finding. We agree.

As relevant here, subdivision (b) of section 300 requires CFS to prove that the

child “has suffered, or there is a substantial risk that the child will suffer, serious physical

harm or illness, as a result of” the parent’s failure or inability to adequately protect the

child. (§ 300, subd. (b)(1).) “[S]ection 300 requires proof the child is subject to the

defined risk of harm at the time of the jurisdiction hearing,” although the parent’s

“‘“[p]ast conduct may be probative of current conditions” if there is reason to believe that

the conduct will continue.’” (In re Cole L. (2021) 70 Cal.App.5th 591, 601-602.)

Domestic violence “may support the exercise of jurisdiction under [subdivision (b)

of section 300,] but only if there is evidence that the violence is ongoing or likely to

continue and that it directly harmed the child physically or placed the child at risk of

physical harm.” (In re Daisy H. (2011) 192 Cal.App.4th 713, 717, disapproved on

another ground by In re D.P. (2023) 14 Cal.5th 266, 278.) Section 300, subdivision (b),

does not authorize the court to take jurisdiction over a child on the basis of emotional

harm. (In re Jesus M. (2015) 235 Cal.App.4th 104, 112.)

We review the court’s jurisdictional findings for substantial evidence. (In re R.T.

(2017) 3 Cal.5th 622, 633.) We examine the record in the light most favorable to the

8 court’s findings and draw all reasonable inferences from the evidence to support the

findings. (Ibid.) But “‘[s]ubstantial evidence is not synonymous with any evidence.

[Citation.] To be substantial, the evidence must be of ponderable legal significance and

must be reasonable in nature, credible, and of solid value.’” (In re Cole L., supra, 70

Cal.App.5th at p. 602.) Mere speculation or conjecture does not constitute substantial

evidence. (In re J.A. (2020) 47 Cal.App.5th 1036, 1046.)

The evidence here is insufficient to support the court’s jurisdictional finding under

subdivision (b) of section 300. The amended petition alleged that domestic violence

between Father and the paternal grandparents placed Antonio at risk of emotional harm,

but emotional harm is not a basis for jurisdiction under subdivision (b) of the statute.1

As for physical harm, there was no evidence that Antonio actually suffered

physical harm caused by violence between Father and the paternal grandparents. Nor

was there evidence that such domestic violence placed Antonio at substantial risk of

serious physical harm. There was no indication of ongoing violence between Father and

the paternal grandparents at the time of the jurisdiction hearing. Father said that the

children were present on one occasion when the paternal grandfather threw Father to the

floor and stomped on his face. That occurred roughly two years before the referral in this

case. On an unspecified date, the paternal grandfather was poking Father in the chest,

1 Serious emotional damage, or a substantial risk of serious emotional damage, is a basis for jurisdiction under subdivision (c) of section 300. Serious emotional damage must be “evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others.” (§ 300, subd. (c).) The amended petition did not contain any allegations under subdivision (c) of section 300.

9 and Father pushed him. Father did not say whether the children were present on that

occasion, but it may have been the single physical incident that Antonio described, when

Father pushed the paternal grandfather “in self-defense.” But there was no evidence that

Antonio was at risk of suffering accidental injury as a bystander on either of those two

occasions. And Antonio said that the arguments between Father and the paternal

grandparents typically were not violent. The two-year-old incident and the undated

pushing incident did not constitute substantial evidence that Father placed Antonio at

substantial risk of serious physical harm by engaging in domestic violence with the

paternal grandparents. Although the record contains considerable evidence that Father

has an unhealthy, dysfunctional relationship with his parents, Father’s conduct with them

“did not demonstrate a risk of physical harm to [Antonio] justifying the assertion of

jurisdiction under subdivision (b) of section 300.” (In re Jesus M., supra, 235

Cal.App.4th at p. 113; see also ibid. [the father’s conduct toward the mother was

“[r]eprehensible” and “detrimental to the emotional welfare of his children,” but it did not

support the finding that the children were at risk of physical harm].) Accordingly, we

must reverse the court’s jurisdictional finding.

In the absence of jurisdiction, the court lacked authority to make (1) the

dispositional findings and orders and (2) the custody and visitation order. (In re Jesus

M., supra, 235 Cal.App.4th at p. 114.) We therefore must reverse those findings and

orders as well.

We note that Mother is free to seek sole custody or restrictions on Father’s

visitation in family court. (In re Jesus M., supra, 235 Cal.App.4th at p. 113.) The family

10 court may intervene even if the evidence does not support juvenile court jurisdiction.

(Ibid.)

DISPOSITION

The juvenile court’s jurisdictional finding, the dispositional findings and orders,

and the custody and visitation order are reversed. The related order dismissing the

amended petition and terminating jurisdiction is also reversed. On remand, the juvenile

court shall find not true the allegation that Antonio is a person described by section 300,

subdivision (b), on the basis of domestic violence between Father and the paternal

grandparents. The court shall then dismiss the amended petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ J.

We concur:

McKINSTER Acting P. J.

CODRINGTON J.