Opinion
B298123
04-10-2020
In re Sarah P., et al., Persons Coming Under the Juvenile Court Law. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LEESA S., Defendant and Appellant.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Jessica S. Mitchell, Principal Deputy County Counsel for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion in this matter, filed April 10, 2020, is modified as follows:
The sole paragraph on page 15 is modified to read as follows:
"In light of our determination that the jurisdictional finding against mother must be reversed, the section 360, subdivision (b) order as to mother must be reversed as well for reconsideration in light of the matters set forth in this opinion. (See In re R.M. (2009) 175 Cal.App.4th 986, 991; see In re Jesus M. (2015) 235 Cal.App.4th 104, 114.) We note that our decision that the allegation against mother is not supported by substantial evidence does not mean that the family may no longer be subject to DCFS's supervision. As we have noted, jurisdictional findings were made against father, and he has not appealed. (§ 360, subd. (b).) We therefore remand this matter to the juvenile court to make any appropriate orders permitted by the Welfare and Institutions Code."
Of course, nothing in this opinion should be construed to preclude the court on remand from considering, or to prejudice DCFS's right to bring further proceedings based on, facts and circumstances that have taken place since the May 28, 2019 disposition hearing.
The petition for rehearing is denied. /s/_________
EDMON, P. J. /s/_________
LAVIN, J. /s/_________
EGERTON, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP02169 A-D) APPEAL from an order of the Superior Court of Los Angeles County, Kim Nguyen, Judge. Reversed. Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Jessica S. Mitchell, Principal Deputy County Counsel for Plaintiff and Respondent.
____________________
Leesa S. (mother) appeals an order for informal supervision pursuant to Welfare and Institutions Code section 360, subdivision (b). Mother contends substantial evidence did not support the juvenile court's sole jurisdictional finding based on her conduct—namely, that mother's four children were at risk of serious physical harm as result of domestic violence between mother and Raymond O., Sr. (father).
All subsequent statutory references are to the Welfare and Institutions Code.
As we discuss, we agree with mother that the juvenile court's finding that the children were at risk of serious physical harm as a result of domestic violence between mother and father is not supported by substantial evidence. We therefore reverse the jurisdictional finding based on mother's conduct, reverse the section 360, subdivision (b) order as to mother, and remand the matter to the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children: Sarah P. (born in March 2002), Raymond O., Jr. (born in August 2006), R.O. (born in November 2015), and J.O. (born in May 2017). Sean P. is Sarah's father, and father is Raymond's, R.O.'s, and J.O.'s father.
A. Prior Dependency Proceedings
1. Sarah and Raymond
In 2014, Sarah and Raymond were placed in a probate guardianship with the maternal grandmother due to mother's drug use. In January 2017, the court returned Sarah and Raymond to mother's care.
2. R.O.
In 2016, the juvenile court sustained a petition alleging that newborn R.O. was a juvenile court dependent due to mother's use of methamphetamine and marijuana during her pregnancy, and father's 21-year history of methamphetamine use. The court ordered mother to complete a full drug program, random weekly drug testing, parenting classes, and individual counseling.
In August 2016, the court terminated its jurisdiction and awarded mother sole legal and physical custody of R.O. Father was granted monthly visits monitored by "a mutually agreed upon monitor or a professional monitor paid for by father."
B. Current Proceeding
On September 16, 2018, the Whittier Police Department reported to the Los Angeles County Department of Children and Family Services (DCFS) that father had been arrested for physically abusing mother in the children's presence. A children's social worker (CSW) interviewed the family the following day. Mother admitted that she and father had argued about rent money, and she said father had "pull[ed]" and slapped her. Mother said Raymond had witnessed the incident but the girls had not. She denied any prior physical violence between herself and father, and she said father did not live in the home.
Sarah and Raymond both said they had heard mother and father yell at each other in the past but had never witnessed any physical violence. Both children felt safe in the home. Sarah said father had not lived with the family prior to the September 16 incident; Raymond said father had lived with the paternal grandmother in Santa Fe Springs but "sometimes" lived in the home. None of the children had marks or bruises indicating abuse or neglect.
On September 18, 2018, a criminal court issued a restraining order protecting mother against father for three years.
In November 2018, mother said she had not heard from father since the September 16 incident. She had been advised by an automated victim notification call that father had been released from jail, but she did not know where he was. The CSW observed that the house was clean and there were no issues concerning the children.
In January 2019, mother advised DCFS that she had enrolled in a drug rehabilitation program through the Los Angeles Center for Alcohol and Drug Abuse (LACADA) because she had begun using marijuana. She denied any methamphetamine use. DCFS reported that the children appeared to be in good health and well cared for, and that mother had support from the maternal grandmother and maternal great grandmother. Mother denied any contact with father.
In March 2019, mother reported that she was continuing to attend out-patient drug rehabilitation at LACADA and had begun attending 12-step meetings. DCFS described the children as well cared for.
C. Petition; Detention Hearing
In early April 2019, DCFS filed a dependency petition as to all four children. In a detention report filed April 8, 2019, DCFS said it had elected to file a petition because it was concerned about the domestic violence between mother and father, the absence of a custody order limiting father's access to Raymond and J.O., and mother's failure to seek a custody order from the family court. DCFS thus sought court-ordered family maintenance services to help monitor mother's progress with drug treatment, domestic violence education, drug testing, and counseling.
At the April 8, 2019 detention hearing, the court detained the children from father and released them to mother under DCFS supervision.
D. Amended Petition
DCFS filed an amended petition on May 3, 2019, which alleged as follows:
a-1, b-1: "[Mother] and [father] have a history of engaging in violent altercations. On a prior occasion, [father] struck the mother on the face. [Mother] and [father] violated the restraining order and placed the children at risk of harm. On a prior occasion [mother] and [father] pulled each other's hair in the presence of the children. The mother failed to protect the children by allowing [father] to have unlimited access to the children. Such violent conduct on the part of [father] against the mother and the mother's failure to protect the children endangers the children's physical health and safety and places the children at risk of serious physical harm, damage, danger and failure to protect."
b-2: Father has a 23-year history of substance abuse, is a current abuser of methamphetamine, and has criminal convictions for drug possession. Father's drug abuse, and mother's failure to protect the children from father by allowing father to have unlimited access to them, places the children at risk of serious physical harm.
E. Jurisdiction/Disposition Report
In April 2019, Sarah told the CSW that mother did not have any continuing contact with father. Sarah repeated that she had never observed domestic violence between mother and father, and father had not been living in the home prior to the September 16 incident. She denied any current drug use by mother.
Raymond told the CSW in April that father had been living in the home "before the incident" in September, but did not live there "anymore." Raymond said father had not tried to contact him since the incident.
Mother denied having had any contact with father since the September incident. She denied that father had lived with the family prior to the incident, but said he used to come to the house a few times a week to see the children. Mother admitted to a history of methamphetamine use and to relapsing with marijuana in November 2018. She had continued to attend her programs at LACADA and to test clean.
The maternal grandmother said she had daily contact with mother and the children. She had no concerns about mother's ability to care for the children.
F. Jurisdiction/Disposition Hearing
At the May 28, 2019 jurisdiction and disposition hearing, counsel for the children and for mother asked the court to dismiss the petition. Both counsel argued that the September 16 domestic violence appeared to be an isolated incident that had occurred eight months earlier. Father had not been in contact with the family since the date of incident, and there was now a criminal protective order in place. DCFS had been supervising the family and had not reported any current risk to the children.
Counsel for DCFS asked the court to sustain the petition. Counsel argued that mother and the children had "credibility issues" on the domestic violence issue, and that father's lack of contact with the family did not ameliorate the risk because father had not done any domestic violence programs and mother was just beginning to do hers.
After hearing argument, the court dismissed count a-1 as to both parents, sustained count b-1 (domestic violence) as to both parents, and sustained count b-2 (father's drug use) as to father only. The court explained: "I think what the evidence demonstrates is there was a rather violent encounter between the mother and father. Certainly true it happened in September of 2018, several months from today. On the issue of current risk of harm, it's a close call, but I think the Department has met [its] burden as to a current risk, in large part because of the evidence that the parents did violate the criminal protective order. . . . [¶] . . . [¶] . . . Raymond's statements, as pointed out by county counsel, do demonstrate it appears as though the father had been living with the family, even after the criminal protective order. I think a violation of a court order is a demonstration of a current risk of harm. And so today the court will sustain the (b)(1) count."
With regard to disposition, the court entered an order pursuant to section 360, subdivision (b), that required mother to drug test on demand, participate in individual counseling and a domestic violence support group, and comply with the criminal restraining order. Father was granted monitored visits.
Mother timely appealed from the May 28, 2019 order.
DISCUSSION
Mother contends there is no substantial evidence that the children were at substantial risk of serious physical harm as a result of domestic violence between herself and father. DCFS responds that mother's appeal is not justiciable; alternatively, it contends substantial evidence supported the juvenile court's jurisdictional findings.
Procedurally, we conclude that section 360, subdivision (b) order is appealable, and mother's appeal is justiciable. On the merits, we conclude as to mother only that the domestic violence finding is not supported by substantial evidence. We therefore reverse the section 360, subdivision (b) order as to mother only.
I.
Appealability
We begin by considering whether the section 360, subdivision (b) order is appealable. This division previously considered this issue in In re Adam D. (2010) 183 Cal.App.4th 1250, where we concluded that a section 360, subdivision (b) order is "tantamount to a disposition" (id. at p. 1260) and therefore is appealable. We explained as follows:
" 'In some cases the parties may resolve an in-home case at disposition by recommending an order for informal supervision pursuant to Welf. & Inst. Code § 301(a). The court may also determine on its own or following a request by one of the parties that even though it has jurisdiction, the child is placed in the home, and the family is cooperative and able to work with the social services department in a program of informal services without court supervision that can be successfully completed within 6 to 12 months and which does not place the child at an unacceptable level of risk. In such cases the court may order informal services and supervision by the social services department instead of declaring the child a dependent [Welf. & Inst. Code § 360(b); see Welf. & Inst.Code § 301].' ([Seiser & Kumli, Cal. Juvenile Courts Practices and Procedure (2009)] § 2.124[2], pp. 2-283 to p-284.)
" 'If informal supervision is ordered pursuant to Welf. & Inst. Code § 360(b), the court "has no authority to take any further role in overseeing the services or the family unless the matter is brought back before the court" pursuant to Welf. & Inst. Code § 360(c) [California Ctr. for Jud. Educ. and Research, Cal. Judge's Benchguides, Benchguide 102: Juvenile Dependency Disposition Hearing (March 2006) § 102.37 (Decision Process—Declaring Dependency), p. 102-30]. The court's lack of authority to take a further role in overseeing the services or the family is understandable, since if the court felt a need to supervise the matter it would have declared dependency.
" 'If the court agrees to or orders a program of informal supervision, it does not dismiss the dependency petition or otherwise set it aside. The true finding of jurisdiction remains. It is only the dispositional alternative of declaring the child a dependent that is not made. This is because if the family is unwilling or unable to cooperate with the services being provided, the social worker may institute proceedings pursuant to Welf. & Inst. Code § 332 (petition to commence proceedings), alleging that a previous petition has been sustained and that informal supervision was ineffective. [Welf. & Inst. Code § 360, subd. (c).] After hearing the petition, the court may either dismiss it or order a new disposition hearing. . . .' (Seiser & Kumli, Cal. Juvenile Courts Practices and Procedure, supra, § 2.124[2], pp. 2.283 to 2-284.) [¶] . . . [¶]
". . . [T]he order for informal supervision under section 360 subdivision (b) must be seen as tantamount to a disposition. Any other result would insulate the juvenile court's jurisdictional finding from review in that, if mother and father cooperate with the Department, it is unlikely to petition for reinstatement under section 360, subdivision (c) which, if granted, will permit the case to proceed directly to disposition. [¶] . . . [¶] We therefore construe the order of the juvenile court for informal supervision under section 360, subdivision (b) as a disposition order." (In re Adam D., supra, 183 Cal.App.4th at pp. 1259-1261.)
II.
Justiciability
Although the juvenile court sustained allegations concerning both mother and father, mother challenges the findings only as to her. Before we address mother's contentions on the merits, we therefore must decide whether we can provide " 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.)
In response to DCFS's contention that mother's appeal is not justiciable because mother challenged only the domestic violence finding, mother urges that her appellant's opening brief also raised the sufficiency of the evidence of father's drug use. We do not agree. The entirety of mother's contention regarding father's drug use appears to be a portion of a sentence, unsupported by any record references, in which mother asserted "the children also did not suffer physical harm resulting from Raymond's drug use." This is insufficient to preserve the issue on appeal. (E.g., In re S.C. (2006) 138 Cal.App.4th 396, 408 ["When a point is asserted without argument and authority for the proposition, 'it is deemed to be without foundation and requires no discussion by the reviewing court.' "].)
Because mother does not challenge the jurisdictional findings against father, those findings will not be reversed regardless of the outcome of this appeal. As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings. (In re M.W. (2015) 238 Cal.App.4th 1444, 1452; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nonetheless, we retain discretion to consider the merits of a parent's appeal "when the finding '(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) 'could have other consequences for [the appellant], beyond jurisdiction' [citation].' (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; see also In re D.C. (2011) 195 Cal.App.4th 1010, 1015; In re Anthony G. (2011) 194 Cal.App.4th 1060, 1064-1065.)" (In re M.W., at p. 1452.) Because the jurisdictional finding against mother is the basis for the section 360, subdivision (b) order from which mother has appealed, we will exercise our discretion to consider the merits of this appeal.
III.
Sufficiency of the Evidence to Support
the Domestic Violence Findings
A. Standard of Review
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." ' [Citation.]" [Citation.]' " (In re I.J. (2013) 56 Cal.4th 766, 773.)
B. Physical Abuse
The juvenile court sustained the domestic violence allegation pursuant to section 300, subdivision (b) only. That section provides that a child is within the jurisdiction of the juvenile court if "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child." (§ 300, subd. (b)(1).)
The law is clear that a juvenile court need not wait until a child is seriously abused or injured before it takes jurisdiction under section 300, and the court may consider past events in deciding whether a child currently needs its protection. (In re Isabella F. (2014) 226 Cal.App.4th 128, 138; In re N.M. (2011) 197 Cal.App.4th 159, 165.) However, when jurisdictional allegations are based solely on future risk to the child, rather than on past abuse or neglect, that risk must be shown to exist at the time of the jurisdictional finding. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993; In re J.K. (2009) 174 Cal.App.4th 1426, 1435.) And, although evidence of past conduct may be probative of current conditions, "[t]o establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.' " (In re Yolanda L., at p. 993; In re James R. (2009) 176 Cal.App.4th 129, 135.)
In the present case, DCFS presented evidence of only a single incident of domestic violence between the parents on September 16, 2018. The uncontroverted statements of mother, Sarah, Raymond, and the maternal grandmother were that mother and father separated immediately after this incident and remained apart at the time of the jurisdiction hearing, some eight months later. Indeed, each family member interviewed by DCFS said they had not seen father since the September 16 incident and did not know where he was. That testimony appears to have been borne out by DCFS's investigation: Nothing in any of the reports suggests DCFS had any reason to believe father continued to live with or to have contact with any member of the family. In the absence of any continued contact between father and the family, we cannot conclude there was even a minimal risk that the children were currently or would subsequently be exposed to domestic violence between mother and father. (See In re M.W. (2015) 238 Cal.App.4th 1444, 1453 [evidence of violence in family home may support the exercise of jurisdiction only if " 'the violence is ongoing or likely to continue. . . .' "]; In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [past domestic violence between the parents did not support juvenile court jurisdiction where there was "no evidence of any ongoing violence between the parents who are now separated"].)
DCFS urges that Raymond's April 19, 2019 statement to DCFS was substantial evidence that father continued to live in the home after the September 16 incident, thus violating the criminal protective order and putting the children at risk of harm. We do not agree. As described in the jurisdiction/disposition report, Raymond told a CSW on April 19 that father had lived in the family home "[b]efore the incident," but "not anymore." When the CSW asked how long father had lived in the home, Raymond said, " 'As long as we lived here. . . . Over one year.' " And, when asked if father had attempted to contact him since the September 16 incident, Raymond said, " 'No.' " These statements do not support a reasonable inference that father continued to live in the family home after the September 16 incident; to the contrary, the only reasonable construction of Raymond's statements is that father moved into the home with the family sometime before April 2018, but moved out immediately after the September 16, 2018 incident.
Alternatively, DCFS urges there is substantial evidence of domestic violence between mother and father prior to the September 16 incident, although it concedes that "the record is not clear as to when the prior incidents occurred." Having reviewed the entire record before the juvenile court, we find no evidence of any incident of domestic violence prior to September 16, 2018. We therefore cannot conclude the juvenile court's contrary finding is supported by substantial evidence. (See In re M.S. (2019) 41 Cal.App.5th 568, 580 ["To be substantial, the evidence must be of ponderable legal significance and must be reasonable in nature, credible, and of solid value"]; In re Joaquin C. (2017) 15 Cal.App.5th 537, 560 [" 'substantial evidence "is not synonymous with any evidence. . . . A decision supported by a mere scintilla of evidence need not be affirmed on appeal" ' "].)
IV.
Because We Have Reversed the Jurisdictional
Finding as to Mother, the Section 360,
Subdivision (b) Order Must Also Be Reversed
In light of our determination that the jurisdictional finding against mother must be reversed, the section 360, subdivision (b) order as to mother must be reversed as well. (See In re R.M. (2009) 175 Cal.App.4th 986, 991; see In re Jesus M. (2015) 235 Cal.App.4th 104, 114.)
Of course, nothing in this opinion should be construed to preclude the court on remand from considering, or to prejudice DCFS's right to bring further proceedings based on, facts and circumstances that have taken place since the May 28, 2019 disposition hearing.
DISPOSITION
We reverse the true finding as to count b-1 as to mother only. We reverse the section 360, subdivision (b) disposition order as to mother, and we remand for the juvenile court to make further orders not inconsistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.