Opinion
B323378
12-27-2023
In re EZEKIEL A., a Person Coming Under the Juvenile Court Law. v. B.A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 22CCJP02783 Ashley Price, Judge Pro Tempore. Affirmed in part, dismissed in part.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
B.A. (mother) appeals from an order finding that her child Ezekiel A. (the child) is a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b)(1). Mother contends there was insufficient evidence to support the initial detention order, the jurisdictional findings, and the dispositional order removing the child from her custody. She also challenges the court's order at the dispositional hearing, which required that her visits with the child be monitored. We dismiss as moot mother's challenge to the detention and visitation orders and affirm the jurisdictional findings and dispositional order.
Further statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
A. Referrals and Detention
On February 11, 2022, the Los Angeles County Department of Children and Family Services (Department) received a referral advising that police officers had placed mother on a 72-hour psychiatric hold after she took 10 narcotic pills and a half-bottle of sleeping medication. Mother told the police that she was a new mother and took the pills because she no longer wanted to deal with maternal grandmother. She refused medical treatment and appeared disheveled and distant.
The Department received a second referral that same date. Maternal grandmother reported to the police that mother struck her in the face with a cane and stabbed her in the leg with a pen. At the time of the altercation, the child was at home with maternal uncle. When mother returned home, she argued with and assaulted maternal uncle. According to maternal uncle, mother held the child in her arms as she punched maternal uncle's face and scratched his hand. She then held the child up to her chest so that maternal uncle could not hit her.
On April 12, 2022, in a separate family court matter, the court granted an emergency ex parte request by V.R. (father) for temporary sole legal and physical custody of the child. On April 18, 2022, however, the family court ordered that the child be returned to mother.
Father is not a party to this appeal.
On June 12, 2022, the Department received a referral that mother had engaged in a physical altercation with her biological family in Bakersfield.
Mother was adopted as a child by maternal grandmother.
On June 14, 2022, the Department spoke with father who explained that mother's biological relatives reported observing mother throw the child to the floor during an altercation. After the altercation, mother threw a stroller on top of the child, who was seated in the car.
On June 15, 2022, mother called a social worker and stated that her biological family in Bakersfield had "'jumped'" her and stolen her phone. Mother denied throwing the child to the floor and explained that the child was in the car in a car seat at the time of the altercation. According to mother, the child hit his head while under the care of maternal aunt, but mother did not take the child to a doctor because he appeared to be alright.
On June 16, 2022, a social worker met with mother and observed that she had a black eye and a patch of hair missing. The child had no marks or bruises on his body but had a dimesized bump on the left side of his head and a small scrape on the right side of his head. Mother claimed the child suffered the injuries when he fell while in maternal aunt's care. Mother agreed to take the child for a forensic examination.
On June 17, 2022, father told a social worker that he had been diagnosed with adjustment disorder with depressive mood.
On June 29, 2022, the social worker received the forensic examiner's report stating that bruising to the child's head was inconsistent with a single fall and was "suspicious [of] physical abuse."
On July 7, 2022, the child's appointed attorney in the family law matter sent a social worker a video from mother's social media account. Mother appeared distraught in the video as she displayed multiple cuts on her arm. The social worker met with mother the next day and observed multiple wounds on her left forearm, which mother admitted were self-inflicted.
On July 15, 2022, the juvenile court issued a detention order, finding there was probable cause to detain and remove the child from mother's custody. The Department removed the child from mother and placed him with father. When the Department advised mother of the order, she threatened to kill herself. The social worker called 911.
The social worker also telephoned maternal grandmother, who reported being afraid of mother. According to maternal grandmother, mother had threatened to hurt her and maternal grandfather if the child was taken away from mother. She opined that mother needed to be hospitalized.
On July 17, 2022, maternal grandmother reported that mother was depressed and hospitalized following the child's removal.
B. Petition, Jurisdiction, and Disposition
On July 19, 2022, the Department filed a section 300 petition, which alleged, as later amended, that mother "has mental and emotional problems including depression, selfharming behaviors, aggressive and assaultive behaviors which render [her] unable to provide regular care for the child..... Such mental and emotional problems on the part of . . . mother endanger the child's physical health and safety and place the child at risk of serious physical harm, damage and danger." The petition also alleged that father's mental and emotional problems rendered father unable to provide regular care for the child and endangered the child's physical health and safety.
At the detention hearing on August 2, 2022, the juvenile court found a prima facie case that the child was a minor as described by section 300 and ordered that the child be detained from mother and released to father.
On August 18, 2022, father told the social worker that on three occasions, mother struck father with a car. He also claimed that she brandished a knife at him, choked and slapped him, and slashed the tires of his car. In addition, father reported that mother threatened to hurt paternal relatives and burn down their home. Father showed the social worker screenshots of mother's text messages, which stated: "'I'm really going to kill myself'"; "'I drank pills'"; and "'I'm holding your baby.'" Father explained that he did not report mother's conduct to law enforcement because he did not want to get her in trouble.
On August 18, 2022, mother told the social worker that in 2017, she was diagnosed with adjustment disorder, but denied being diagnosed with any further mental health problems. She admitted that she had been placed on psychiatric holds but denied being suicidal or acting in an aggressive manner toward anyone other than maternal uncle. Mother denied striking maternal grandmother and blamed a "language barrier" for maternal grandmother's police report. When the social worker asked mother what needed to be done for the child to be safe, mother responded, "'I guess my mental health needs to be stable and be able to provide stability and a safe environment to'" the child.
On August 22, 2022, paternal grandmother reported that mother had mental health issues, was aggressive, and had threatened to beat up father. While mother and father lived in Texas, mother held a knife and went through every room in paternal grandparents' home, tearing up items. Paternal grandmother contacted the police, who took mother to a hospital. After her release from the hospital, mother gathered her belongings and returned to California.
According to a June 30, 2020, police report, mother admitted to breaking a television at maternal grandmother's home. Mother explained that she was upset that her laptop did not work. Mother conceded that she had "bipolar and anger issues." (Emphasis omitted.)
On September 1, 2022, the Department filed a last minute information to the juvenile court. The report included a letter from a licensed therapist, stating that mother had completed a mental health evaluation on August 12, 2022, at the conclusion of which, "it was determined that [mother] did not present with a diagnosis and did not meet [medical] indication for further treatment at the time."
On September 2, 2022, the juvenile court held a jurisdictional and dispositional hearing. Following the submission of evidence and the parties' arguments, the court found that both parents struggled with mental health issues. The court described mother's violence as "extreme" and sustained the two counts of the petition.
The juvenile court ordered the child removed from mother's custody and placed with father. The court found removal from mother was necessary based on her unresolved mental health conditions resulting in "dangerous, violent situations," and the child's young age. The court granted mother monitored visits three times per week.
C. Post-Judgment Proceedings
At an April 12, 2023, section 364 review hearing, the juvenile court terminated jurisdiction over the child and issued a custody order granting the parents joint legal custody and father sole physical custody, with monitored visitation for mother three times a week.
III. DISCUSSION
A. Jurisdictional Findings
Because the juvenile court has now terminated jurisdiction, we first consider whether mother's challenge to the jurisdictional findings is moot. Generally, once a juvenile court terminates jurisdiction, an appeal from an earlier order is moot. (In re Rashad D. (2021) 63 Cal.App.5th 156, 163.) Nonetheless, "a case is not moot where a jurisdictional finding affects parental custody rights [citation], curtails a parent's contact with his or her child [citation], or 'has resulted in [dispositional] orders which continue to adversely affect' a parent [citation]." (In re D.P. (2023) 14 Cal.5th 266, 277-278.) Here, the jurisdictional findings resulted in an exit order that granted father sole physical custody and limited mother's contact with the child. On this record, we conclude mother's challenge to the jurisdictional findings is not moot. We thus consider the merits of her argument.
Mother contends there was insufficient evidence to support jurisdiction over the child. We review the juvenile court's jurisdictional findings for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) We draw all reasonable inferences in favor of the findings and orders of the juvenile court and do not reweigh the evidence or reassess credibility. (Ibid.)
Section 300, subdivision (b)(1), allows a child to be adjudged a dependent of the juvenile court when "[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 any of the following: [¶] . . . [¶] (D) The inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." "A jurisdiction finding under section 300, subdivision (b)(1), requires the Department to prove three elements: (1) the parent's or guardian's neglectful conduct or failure or inability to protect the child; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re Cole L. (2021) 70 Cal.App.5th 591, 601.) "'Harm to a child cannot be presumed from the mere fact the parent has a mental illness.'" (In re Travis C. (2017) 13 Cal.App.5th 1219, 1226.)
The record well supports the juvenile court's finding that mother was violent. She broke a television when her laptop malfunctioned. She struck and stabbed maternal grandmother, struck maternal uncle, and choked and struck father. She also slashed father's tires, vandalized paternal grandparents' home, and threatened to harm maternal and paternal family members.
Substantial evidence also supports the juvenile court's finding that mother suffered from mental illness. In June 2020, she admitted that she had anger issues and was bipolar. In 2017, she was diagnosed with adjustment disorder. And, she engaged in self-harm, ingested narcotics and sleeping pills, and threatened suicide on numerous occasions.
Mother does not seem to challenge the juvenile court's findings that she engaged in violence or that she was mentally ill. Instead, she contends there was insufficient evidence that her violence was caused by her mental illness and that she therefore could not provide regular care for the child. We disagree.
The extreme and frequent nature of mother's violent conduct supported a reasonable inference that her conduct and mental illness were linked. (See In re Khalid H. (1992) 6 Cal.App.4th 733, 736 ["The Legislature omitted evidentiary requirements in section 300, subdivision (b), with respect to 'mental illness'"]; see also Laurie S. v. Superior Court (1994) 26 Cal.App.4th 195, 202 ["Because the matter to be determined at the jurisdictional hearing is whether a child is at substantial risk of harm at the hands of a parent, due to parental acts or inaction, if that assessment can be made within ordinary experience, no expert is necessary"].)
Substantial evidence also supported the juvenile court's finding that mother's mental illness prevented her from providing regular care to the child. Indeed, mother admitted that in order for the child to be safe, her "mental health need[ed] to be stable." And, during a visit with mother's biological relatives, the child sustained injuries that were consistent with abuse. During the same visit, family members reported that mother threw the child to the ground and threw a stroller onto the child as he sat in a car seat. Maternal uncle reported that mother used the child as a shield during her altercation with him. In addition, mother took an overdose of medication, engaged in self-harm, and frequently expressed a desire to kill herself. The court could reasonably conclude that mother's conduct rendered her unable to provide regular or adequate care for the child, who was of "tender years." (In re J.M. (2019) 40 Cal.App.5th 913, 922 ["children six years old or younger are children of '"tender years"'"].)
B. Removal Order
Mother next contends that the dispositional order removing the child from her custody was not supported by substantial evidence. The dispositional order has now been superseded by the orders terminating jurisdiction and granting father sole physical custody of the child. (Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1165.) Mother has filed an appeal of that exit order. Accordingly, we will consider the merits of mother's appeal here. (See In re Rashad D., supra, 63 Cal.App.5th at p. 164.)
"'At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child.'" (In re D.P. (2020) 44 Cal.App.5th 1058, 1065.)
"'On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence.' ([In re] Ashly F. [(2014)] 225 Cal.App.4th [803,] 809; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 ['when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof'].) '"'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' [Citation.]" [Citation.]' [Citation.]" (In re I.R. (2021) 61 Cal.App.5th 510, 520-521.)
Substantial evidence supported removal of the child from mother's custody. Mother denied engaging in violence against anyone other than maternal uncle. (See In re A.F. (2016) 3 Cal.App.5th 283, 293 ["'[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision'"].) Moreover, the child was present during mother's physical altercation with her biological family members and maternal uncle. Mother's selfharm and suicidal ideation also endangered the child's physical safety, especially given the child's young age.
According to mother, the Department could have required that mother reside with maternal grandmother and "a plan of strict supervision." Mother, however, had been residing with maternal grandmother when she engaged in the violent conduct (including her violence directed at maternal grandmother) that supported the exercise of jurisdiction over the child. Moreover, maternal grandmother had requested that the Department assist mother in moving out of maternal grandmother's home, which demonstrated that this was not a stable residence for mother. Although mother cites the availability of unannounced visits, such visits could only assess mother's mental health and conduct at the time of the visit and was not a reasonable alternative to removal. On this record, the juvenile court could find it highly probable that mother would pose a substantial danger to the child's physical safety and the only reasonable means of protecting the child was removal from her physical custody.
Mother also argues that the Department failed to discuss the reasonable efforts made by the Department to prevent removal. (See Cal. Rules of Court, rule 5.690(a)(1)(B)(i).) We disagree with mother's characterization of the record. As she concedes, the jurisdictional and dispositional reports included a section entitled "Reasonable Efforts," and listed, among other things, "[p]rovided [f]amily [r]eunification [s]ervices for mother" and "[p]rovided mother . . . with case related referrals." (Emphasis omitted.) In any event, on appeal, we review whether the juvenile court committed error when it removed the child from mother's custody (In re D.P., supra, 44 Cal.App.5th at p. 1065), not whether the Department erred in submitting its report.
C. Placing the Child with Father
Mother next challenges the juvenile court's dispositional order placing the child with father. In ordering that the child be placed with father pursuant to section 361.2, subdivision (a), the court stated, "the court is going to keep the home-of-parent father order and maintain that the child is released to him." According to mother, the court's statement did not comply with section 361.2, subdivision (c), which requires that "[t]he court shall make a finding, either in writing or on the record, of the basis for its determination under subdivisions (a) and (b)."
Even if we were to assume that the juvenile court's statement was inadequate, we conclude that mother was not prejudiced by the error. (See In re J.S. (2011) 196 Cal.App.4th 1069, 1078-1079 [failure to follow § 361.2, subd. (c) subject to harmless error analysis].) According to mother, had the court made explicit findings, it is reasonably probable that the child would not have been released to father's custody because mother had claimed that paternal grandfather had sexually abused her. We disagree. Mother did not argue in the juvenile court, and does not contend on appeal, that the dispositional order should have placed any limitations on the child's contact with paternal grandfather. (See In re N.O. (2019) 31 Cal.App.5th 899, 935 [party forfeits right to claim error by failing to raise objection in trial court].) Nor does mother challenge the sufficiency of the evidence supporting the court's implied finding that placement of the child with father would not be "detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a); see also In re C.M. (2014) 232 Cal.App.4th 1394, 1401-1402 ["the party opposing placement with a nonoffending parent has the burden to show by clear and convincing evidence that the child will be harmed if the nonoffending parent is given custody"].) Accordingly, any assumed error was harmless.
D. Challenges to Other Orders Are Moot
Mother also challenges the juvenile court's August 2, 2022, detention order and the September 2, 2022, visitation order requiring that her visits be monitored.
The detention order was superseded by the jurisdictional findings and dispositional orders (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420), which we have affirmed. And, the visitation order at disposition has been superseded by the exit order granting monitored visitation. (Heidi S. v. David H., supra, 1 Cal.App.5th at p. 1165.) Accordingly, mother's challenges to these orders are moot. (In re D.P., supra, 14 Cal.5th at pp. 276-277, 283.) Moreover, because we will consider mother's challenge to the visitation order in the appeal of the exit order based on the record in that latter appeal, we decline to exercise our discretion to consider the merits of her challenge to the visitation order here.
Because we are affirming the jurisdictional findings and dispositional order and dismissing the appeal as to the other orders, we need not address mother's argument that on remand we should transfer the matter to family court.
IV. DISPOSITION
Mother's challenges to the detention and visitation orders are dismissed as moot. The jurisdictional findings and dispositional order are affirmed.
We concur: RUBIN, P. J., BAKER, J.