Los Angeles County Department of Children & Family Services v. Alma C.

202 Cal. App. 4th 968, 135 Cal. Rptr. 3d 659, 2011 Cal. App. LEXIS 1653
CourtCalifornia Court of Appeal
DecidedDecember 20, 2011
DocketNo. B232428
StatusPublished
Cited by83 cases

This text of 202 Cal. App. 4th 968 (Los Angeles County Department of Children & Family Services v. Alma C.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Los Angeles County Department of Children & Family Services v. Alma C., 202 Cal. App. 4th 968, 135 Cal. Rptr. 3d 659, 2011 Cal. App. LEXIS 1653 (Cal. Ct. App. 2011).

Opinion

Opinion

CHAVEZ, J.

Alma C. (mother) appeals from an order adjudging Ashley B. (bom Apr. 2008) a dependent of the court pursuant to Welfare and Institutions Code section 360, subdivision (d).1 Specifically, mother argues that the court erred when it sustained a jurisdictional finding under section 300, subdivision (j) with respect to Ashley based on the circumstances leading to the death of her three-month-old brother, Jose.2 We affirm.

CONTENTIONS

Mother claims that a sustained count under section 300, subdivision (j) requires as a necessary predicate a sustained count under subdivision (a), (b), (d), (e), or (i) of section 300 as to the dependent child’s sibling. Because the court failed to sustain a count under any of those subdivisions as to Jose, mother argues, the finding establishing jurisdiction over Ashley under count j-1 cannot stand.

Further, mother argues, even if a finding as to Jose was not legally necessary as a predicate to the finding as to Ashley under section 300, subdivision (j), substantial evidence does not support the juvenile court’s finding that count j-1 was tme based on the facts in the record.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has given birth to three children: Ashley; Juan E., age 6; and Jose, who was bom on August 4, 2010, and died on November 12, 2010. Only Ashley is subject to this appeal. The father of Ashley and Jose is Jose B. [971]*971(father).3 Mother, father, Ashley, and Jose resided together prior to the institution of these dependency proceedings. Juan had been living with his father, Juan E., Jr. (Juan’s father), for approximately two years prior to the commencement of these proceedings.

1. Allegations regarding the death of Jose

Jose was born prematurely on August 4, 2010, and remained in the hospital until September 5, 2010. Mother reported that when Jose was discharged from the hospital, mother and father were given instructions for Jose to sleep on his back in a crib. Mother reported that Jose usually slept in a crib.

On the night of November 11, 2010, Jose was fussy and crying. Mother went to sleep around 10:30 p.m., while father stayed up to tend to Jose. Father fed Jose and then placed him in his crib, but he would not stop crying. Father took him out of the crib and placed him on his side in the parents’ bed, and propped a bottle up to finish feeding him. Father then picked Jose up and burped him before putting him back down on his side on a pillow in their bed. Ashley, who was then age two, was also sleeping on the bed.

Father spontaneously woke up around 4:00 a.m. on November 12, 2010, and realized that he did not hear Jose breathing. Father got up and saw that Ashley had moved. She was lying across the top of the bed, across the pillows, and her right arm was on top of Jose’s head. Father saw mucus on the pillow and cleared the mucus from Jose before beginning chest compressions. Father woke mother up and called 911, but Jose was already stiff, his face was white, and bloody discharge was draining from his nose. Paramedics responded to the family home, but they were unable to resuscitate Jose, and he was pronounced dead.

The Los Angeles County Department of Children and Family Services (DCFS) investigated the matter in the days following Jose’s death. DCFS reported that Jose’s crib was broken and full of clothes that appeared to have been there for a while, and that the parents had not followed the orders of their pediatrician that Jose sleep in his own crib on his back.

2. Investigation

Mother was interviewed on November 15, 2011. Mother explained that father would often stay up with Jose at night because mother worked long hours. Father confirmed that he was the primary caregiver for Jose and Ashley. Father disclosed that he was diagnosed with depression and was [972]*972taking psychotropic medication. Father stated that he would stay up at night with the baby due to mother’s work schedule. Father and mother both confirmed the events of the night of November 11, 2010, leading to Jose’s death.

Father disclosed that he was on disability because he had been diagnosed with depression in July. Father stated that he currently went to therapy once a week. Father admitted to drinking heavily prior to the birth of his children, Jose and Ashley. Father also admitted that he had started drinking alcohol again since the death of the baby. Father stated that he drank a 24-ounce beer daily to “mellow out,” but he never drank to the point that he did not know what he was doing.

In a followup interview with father on November 24, 2010, father disclosed that mother had been doing crazy things and he was afraid she might hurt Ashley. Father said that he and mother had an argument at Jose’s funeral the previous day, and that when they came back, mother packed her things and left, taking Ashley with her. Father then stated that when angry, mother had been physically abusive to Ashley. Father stated that one time mother slapped Ashley so hard that she knocked the wind out of her. Father also disclosed a physical altercation that took place while Jose was alive. Father was holding Jose and mother swung at him out of anger and hit the baby. Father stated the police came to the family home that day, but did not arrest mother when father did not press charges. Father claimed mother would come home angry from work, and when Jose was alive she would toss the baby around “like a rag doll.”

Father further claimed that when Juan was in mother’s care, mother was physically abusive towards him. Father claimed that one time mother punched Juan in the face and made the child bleed. Father stated that it was after this incident that Juan went to live with his father. Father told the DCFS social worker that after the social worker left their home to visit Juan at his father’s house, mother called Juan’s father and told him not to say anything about the past physical abuse.

Father disclosed that mother had been blaming him for Jose’s death, and that he was afraid that she did not want to be with him anymore. He was also afraid because mother had left and taken Ashley with her, and he did not know where they were. Father admitted that he had been smoking marijuana, but stated that he had a medical card for marijuana use.

Mother was interviewed by telephone on November 24, 2010. She told the DCFS social worker that she did not want Ashley removed. Mother asked, “Can someone come look at her before you guys take her? She does not have [973]*973any bruises because I don’t hit her like that.” However, mother did not deny hitting Ashley, she only stated that she did not hit her hard enough to leave bruises. Mother stated that she and father had an argument the previous night and father made her leave the home. Mother stated that she stayed at a relative’s house and that Ashley was with her grandmother. The social worker informed mother that Ashley would be picked up from the grandmother’s home by DCFS.

On November 24, 2010, a DCFS social worker interviewed father’s therapist. The therapist reported that he had been seeing father since June for depression. Father was prescribed antidepressants by a psychiatrist. Father’s therapist believed that father was fine and able to care for the children. However, from what father had told him, he believed that mother was detached.

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Cite This Page — Counsel Stack

Bluebook (online)
202 Cal. App. 4th 968, 135 Cal. Rptr. 3d 659, 2011 Cal. App. LEXIS 1653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/los-angeles-county-department-of-children-family-services-v-alma-c-calctapp-2011.