Opinion
B294689
02-03-2020
In re DAYNA B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, v. HAZEL B., Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP03402A-C) APPEAL from findings and orders of the Superior Court of Los Angeles County, Natalie P. Stone, Judge. Affirmed in part and dismissed in part. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Appellant.
____________________
Hazel B. (mother) appeals from the juvenile court's jurisdictional findings of October 9, 2018, and dispositional orders of December 10, 2018, in which her children—Dayna B. (Dayna, born June 2007), Lauren B. (Lauren, born Aug. 2009), and Sean B. (Sean, born Mar. 2012) (collectively minors)—were adjudicated dependents of the court and removed from her custody. Mother raises three issues on appeal: (1) Whether sufficient evidence supported the jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b)(1) (failure to protect), (c) (emotional abuse), and (j) (abuse of sibling); (2) whether sufficient evidence supported removing Sean from mother's custody; and (3) whether the juvenile court abused its discretion by delegating visitation decisions to Dayna's therapist. The Los Angeles County Department of Children and Family Services (DCFS) cross-appeals the juvenile court's dismissal of a count to exercise jurisdiction under section 300, subdivision (a) (nonaccidental serious physical harm).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In May 2019, during the pendency of this appeal, the juvenile court terminated its jurisdiction over minors and entered a custody "exit" order. DCFS thereafter moved to dismiss mother's appeal as moot.
Regarding the October 9, 2018, jurisdictional findings, we conclude that—despite the subsequent termination of jurisdiction—mother's appeal is not moot because she could still be adversely affected by those findings in the future. On the merits, substantial evidence supports the assumption of jurisdiction under section 300, subdivisions (b)(1), (c), and (j). As to the issue raised in DCFS's cross-appeal, substantial evidence also supports the juvenile court's dismissal of the count under section 300, subdivision (a). Accordingly, we affirm the jurisdictional findings in full.
Regarding the December 10, 2018, dispositional orders, we conclude that the issues raised by mother—whether sufficient evidence supported the order removing Sean and whether the visitation order as to Dayna was an improper delegation of the juvenile court's authority—are moot in light of the subsequent termination of jurisdiction and the custody exit order filed in May 2019. Therefore, we dismiss mother's appeal concerning these two issues.
BACKGROUND
I. The Family
The family consists of mother, minors' father Russell B. (father), Dayna, Lauren, and Sean. Mother and father are divorced. Father is not a party to this appeal.
II. Referral
In April 2018, DCFS received a referral regarding the family. The reporter stated that mother and father were "going through a contentious custody battle." Mother had allegedly screamed in Lauren's face, scaring Dayna to the point that she thought mother would throw her sister out of the car. Lauren did not feel safe and would "'rather die than live with mother.'" The reporter did not know if mother had made actual threats or taken action to hurt minors.
Between 2013 and 2017, seven other referrals were made regarding the family. These referrals were either "[e]valuate[d] [o]ut" or deemed inconclusive or unfounded.
III. Dependency Petition and Detention Hearing
On May 29, 2018, DCFS filed a dependency petition seeking the juvenile court's exercise of jurisdiction over minors under section 300.
The petition alleged that mother had physically abused Lauren "by striking, shaking, and grabbing" her; slapping her face; shoving and causing her to fall; and pulling her down by grabbing her hair. This physical abuse, from which father failed to protect, caused Lauren "unreasonable pain and suffering." Lauren's physical health and safety were endangered, and minors were placed at risk of serious physical harm. These allegations were used to support the a-2 count under section 300, subdivision (a) (nonaccidental serious physical harm), and the b-2 count under subdivision (b)(1) (failure to protect), as to all three minors; and the j-1 count under subdivision (j) (abuse of sibling), as to Dayna and Sean.
It was also alleged that mother emotionally abused both Dayna and Lauren, causing Dayna to "exhibit[] suicidal ideation and express[] hatred toward herself" and causing Lauren to "exhibit[] anxiety, self-injurious behaviors, and suicidal ideation." Mother "intimidate[d] and harasse[d]" Dayna and Lauren, and they did not feel safe at her home. Mother's emotional abuse placed the girls at substantial risk of serious emotional damage. These emotional abuse allegations were used to support the c-1 and c-2 counts under section 300, subdivision (c) (emotional abuse), as to Dayna and Lauren.
Additionally, the dependency petition included domestic violence allegations to support the a-1 count under section 300, subdivision (a), and the b-1 count under subdivision (b)(1), as to all three minors. DCFS later voluntarily dismissed without prejudice these domestic violence counts.
At the detention hearing held on May 30, 2018, mother and father entered general denials to the dependency petition. The juvenile court found that a prima facie showing had been made that minors were persons described by section 300. The court detained minors from mother and released them to father's home under DCFS supervision.
On May 14, 2018, father filed a request for a restraining order against mother. A temporary restraining order protecting father and minors was issued that day, to be in effect until a hearing set for June 6, 2018. Thus, minors were not residing with mother at the time of the detention hearing.
IV. DCFS Interviews
DCFS conducted multiple interviews with the family between April and June 2018. We summarize pertinent parts of those interviews below.
A. Dayna
Dayna did not feel safe with mother. Mother had previously hit and threatened minors, choked and slapped Lauren, and locked Lauren out of the house. Dayna was afraid of mother's anger erupting and mother hurting her or Lauren. During a recent incident in the car, mother had threatened to push Lauren out. Dayna explained that, "'[s]ince [mother] ha[d] already done so many bad things to Lauren, [Dayna] thought [Lauren] would get killed being pushed out of the car.'" According to Dayna, "'[Lauren] [was] deathly afraid of . . . mother.'"
Dayna also felt emotionally abused by mother. She explained, "'I've had thoughts about not wanting to live. I never had a plan to try to hurt myself, I just didn't want to experience the things I was feeling anymore. My mother was intimidating, she would yell at us and get in our faces. Sometimes I would come back to my father's house after being with mom and I would get nauseous and throw up. . . . I think it was from the stress of being at my mom's house. . . .'" Dayna felt unloved by mother and harassed by her at home and at school.
B. Lauren
Lauren also did not feel safe around mother and claimed that mother had struck, shaken, and grabbed her. Mother slapped her and her siblings. Regarding the incident in the car, Lauren reported that mother—thinking Lauren had hit Sean—screamed at her during the entire drive to school. Lauren was afraid that mother would leave her on the side of the road.
Lauren did not believe that mother loved her. Mother intimidated her and harassed her and Dayna at home and at school. The situation between her parents and, in particular, at mother's home, was "extremely hard" for Lauren. Although Lauren denied trying to kill herself, she expressed the desire to die to escape living with mother, stating: "'I just want to die. I can't handle this anymore.'"
C. Sean
Sean told the DCFS social worker that he was safe at father's house, but that "he did not feel very safe at . . . mother's" home and that "Lauren was not safe there." According to Sean, Lauren was "'really bad[]'" and got "in 'big trouble.'" He denied that mother hit Lauren but reported that mother would threaten her, hold her arms, and yell in her face. Sean stated, "'My mom yells a lot, especially at my sisters.'" As for the incident in the car, Sean explained that Lauren pushed his backpack, causing mother to get angry and threaten to "kick her out of the car."
D. Father
Father reported that "mother had been 'beating the crap out of the kids for a long time.'" Mother slapped minors' faces and, during one incident, tried to put a towel in Lauren's mouth. Father showed the dependency investigator a video of this incident. Mother had also pulled Lauren down to the floor by her hair.
According to father, "mother intimidated[] the children, constantly harasse[d] them and question[ed] their every move." Mother emotionally abused Dayna "'all the time.'" Lauren was afraid of and anxious regarding mother. In early June 2018, Lauren "told [father] that she wanted to kill herself due to the treatment she was receiving from . . . mother."
E. Mother
Mother believed that "father coache[d] the children to say bad things about her" and that father and minors' babysitter had made false allegations of abuse against her. Mother denied that she kicked Lauren out of the car, threatened her, or used physical discipline. She denied ever slapping minors, hitting or pushing Lauren, or grabbing her by the hair.
Mother admitted that she would ask minors about their visits with father and talk to the school therapist, teachers, and other parents. She also asked minors what they said to the social worker and the police. She believed it was her "right" to know what minors were discussing and saying about her.
F. Maternal grandmother
Mother's mother (maternal grandmother) stated that she had never seen mother physically abuse, harass, or intimidate minors. She believed that minors were afraid of father and that he was coaching them to make allegations against mother.
V. E-mail from Dayna's Therapist
The contents of an August 29, 2018, e-mail from Dayna's therapist, Linda Hayes (Hayes), were included in DCFS's last minute information for the court. According to Hayes, Dayna "presented as depressed, had difficulty expressing her feelings, displayed symptoms of post-traumatic stress disorder, had difficulty with socialization and expressed feelings of self-hatred." Dayna had disclosed that she was afraid of mother and that mother had slapped minors and had locked Lauren outside as a form of punishment. Dayna reported that she had been suicidal two years earlier because "mother was cruel to her." Dayna continued to have occasional dreams of mother killing her. Dayna had told Hayes, "'My mom makes me feel unsafe. I never want to see her again.'"
VI. Jurisdiction Hearing
The jurisdiction hearing took place over the course of five days in September and October 2018.
A. Witnesses
1. Mother
Mother denied physically or emotionally abusing minors. She specifically denied ever striking, slapping, shaking, strangling, or choking Lauren, shoving her head or pulling her down by her hair, or threatening to push her out of a moving car. She denied ever slapping Dayna.
Mother admitted that she had grabbed Lauren "[t]o keep her from getting hurt[.]" She recalled one incident when Lauren was screaming in her face and mother "tapped her lips . . . just to get her to stop." Mother also admitted that she "yell[ed] a lot" when she and father first separated.
Mother denied making several statements attributed to her by the DCFS social worker, including that she had a right to know what minors were saying about her. Mother believed that the juvenile court proceedings were 90 percent attributable to "coaching from [father]."
2. Father
According to father, Lauren "challenged [the] church teaching that parents love their children[,]" asking that, "if [her] parents love [her], why ha[d] [she] been hit here, here, here, indicating to her face, her eyes, her ears, her mouth, her neck, and her body." Father had witnessed mother shove Lauren into the car and shove her by the head. Father denied coaching minors to report mother's abuse.
3. Dependency investigator Steinhart
Jeffrey Steinhart (Steinhart), a DCFS dependency investigator, testified about his investigation of the family. According to Steinhart, it was "not beyond the realm of possibility" that father coached minors' allegations against mother. Steinhart did not, however, believe that Dayna had been coached. He also did not feel that parental alienation "was a significant issue in this case."
Steinhart found it "extremely concerning" that Dayna expressed "no longer want[ing] to exist," because "what's just an idea now is something she could certainly act on in the next four, five years if the situation doesn't change." Steinhart believed that Dayna and Lauren would "probably" be physically safe in mother's home but that it would be "incredibly detrimental . . . psychologically[.]"
Steinhart opined that Sean would also be physically safe with mother. Sean was "a little more detached from the situation" but was "not immune[.]" According to Steinhart, Sean was "clearly absorbing whatever's going on during these interactions, and while he may not be expressing anything particularly upsetting right now, there's little question . . . that at some point in the future as he ages, there will be issues."
4. DCFS social worker Richard
Raychel Richard (Richard), a DCFS emergency response social worker, believed that mother emotionally abused Dayna and Lauren. Richard did not believe that father had coached minors.
5. Therapist Hayes
Hayes, who had been Dayna's therapist since May 2018, also did not believe that Dayna was being coached or manipulated. Hayes reported that Dayna suffered from depression, anxiety, and post-traumatic stress disorder, but Hayes did not believe that she presently exhibited suicidal ideation. Dayna was "absolutely afraid of seeing . . . mother in court, the thought of having any visitation with her, the thought of having any phone contact with her, monitored visits, or anything." Hayes did "not think Dayna should have any contact with . . . mother at this time."
Dayna had told Hayes that mother slapped minors approximately one to two times per week. Dayna reported mother's physical abuse of Lauren, including one time when she locked Lauren out of the house.
Dayna viewed father as a "safety net." Hayes had no concerns about father's behavior, explaining that he was "very empathic to [minors'] experience" and made "appropriate parenting decisions[.]"
6. Social worker Schimpff
Elizabeth Schimpff (Schimpff), a "psych social worker[,]" had treated both Dayna and Lauren. They would sometimes "report that they were afraid of . . . mother, but then at other times they would tell [Schimpff] that everything was fine at home and that they felt safe at both homes." Dayna reported to Schimpff that "mother had choked her sister." Schimpff had some concerns about parental coaching.
7. Therapist Bookman
Samantha Bookman (Bookman), a marriage and family therapist, had treated Dayna and Lauren on and off for four years. Mother made statements to Bookman "that in the past," both she and father "had smacked the kids around[.]" Mother appeared receptive when Bookman "admonished her never to engage in that type of discipline."
Father complained "extensively" about mother's parenting, stating that mother "was the devil[,]" "had sociopathic tendencies[,]" and "was physically[,] . . . mentally[,] and verbally abusive." Bookman was concerned by father's "animosity" toward mother. She thought that "the only barrier to [mother's] attachment with [minors] [was] the anger and animosity and things that were being told to them by [father]." Father "got upset because [Bookman] was not going along with his view that the only problem in these children's lives [was] their mother, and that if only she were out of the picture, somehow everything would be perfect, and that he had nothing to work on as a parent."
B. Credibility determinations
The juvenile court found minors' statements in the DCFS reports to be credible. It also found DCFS social worker Richard, dependency investigator Steinhart, and therapist Hayes credible. The court did not make explicit credibility findings as to social worker Schimpff or therapist Bookman.
However, the juvenile court did not find mother or father credible. The court believed that "father's animus toward[] mother . . . ha[d] made him biased against her." Mother's "account of various events [was] contradicted by multiple witnesses, including all three children, with the exception of . . . maternal grandmother, who seem[ed] to wholeheartedly support . . . mother and exhibit bias in favor of mother." Mother's credibility was further undermined by her denial of making statements attributed to her by social worker Richard.
C. Sustained counts
The juvenile court found "ample evidence that mother, over the years, has lashed out and aggressively yelled at the children, acted in a cruel and intimidating manner, harassed them, including by interrogating them about what they were reporting to therapists, social workers, or law enforcement."
The juvenile court sustained amended b-2 and j-1 counts under section 300, subdivisions (b)(1) and (j), that mother "inappropriately physically disciplined . . . Lauren[,]" including slapping Lauren, which caused Lauren "unreasonable pain and suffering." Mother's conduct endangered Lauren's physical health and safety and placed all minors "at risk of serious physical harm."
Amended c-1 and c-2 counts under section 300, subdivision (c), were also sustained. The court found that mother emotionally abused Dayna and Lauren, resulting in both girls' suicidal ideation. The emotional abuse placed Dayna and Lauren at substantial risk of serious emotional damage.
The juvenile court dismissed the dependency petition's allegations against father; the a-2 count under section 300, subdivision (a), regarding mother's physical abuse of Lauren; and the a-1 and b-1 domestic violence counts under section 300, subdivisions (a) and (b)(1), that DCFS had agreed to voluntarily dismiss.
VII. Disposition Hearing
At the December 10, 2018, disposition hearing, minors were declared dependents of the juvenile court. The court found by clear and convincing evidence that minors should be removed from mother's custody. Minors were placed with father under DCFS supervision. The court ordered family maintenance services for father and family enhancement services for mother.
Regarding mother's visitation, the juvenile court ordered unmonitored visits with Sean and monitored visits with Lauren, both conditioned on mother's participation in therapy. For Dayna, the court found "by clear and convincing evidence that it would be detrimental to her to order her to visit with mother under any setting." The court ordered "conjoint counseling with mother when recommended by Dayna's individual therapist."
VIII. Appeal and Cross-appeal
On December 13, 2018, mother timely appealed the findings of dependency jurisdiction and the dispositional orders. On January 3, 2019, DCFS filed a timely notice of its cross-appeal.
IX. Termination of Jurisdiction
On April 30, 2019, while mother's appeal was pending, the juvenile court found that the conditions that had justified the initial assumption of jurisdiction over minors no longer existed. However, the court stayed the termination of jurisdiction pending receipt of a juvenile custody exit order. On May 3, 2019, the court signed and filed the custody order and terminated jurisdiction.
Pursuant to the custody order, father was granted physical custody of minors and legal custody of Dayna. Both mother and father were granted legal custody of Lauren and Sean. Mother received supervised visitation with Lauren and unsupervised visitation with Sean. Mother was ordered to "have no visits with Dayna until Dayna is willing to visit." The custody order explicitly made no findings or order with respect to "the issue of whether [father] can relocate minor's residence" to another state.
Mother did not appeal the termination of jurisdiction or the juvenile custody exit order.
DISCUSSION
On appeal, mother argues that (1) there was insufficient evidence to support the jurisdictional findings as to each minor; (2) there was insufficient evidence to support removing Sean from mother's custody; and (3) the juvenile court abused its discretion by delegating visitation decisions to Dayna's therapist.
Following the juvenile court's termination of jurisdiction, DCFS filed a motion to dismiss mother's pending appeal as moot. DCFS concurrently filed its respondent's brief on the merits, which repeats its argument that mother's appeal is moot, contends that the jurisdictional findings and dispositional order removing Sean were supported by substantial evidence, and "takes no position" on mother's challenge to the visitation order. DCFS cross-appeals the dismissal of the a-2 count under section 300, subdivision (a).
DCFS also moved for judicial notice of the juvenile court's minute orders dated April 30, 2019, and May 3, 2019, and the juvenile custody exit order dated May 3, 2019. We grant the motion and take judicial notice of the minute orders and custody order pursuant to Evidence Code section 452, subdivisions (c) and (d).
I. Mother's Challenges to the Removal of Sean and the Visitation Order Are Moot.
Under the doctrine of justiciability, courts will generally only consider actual, live controversies. (In re I.A. (2011) 201 Cal.App.4th 1484, 1489-1490.) "An issue becomes moot when some event has occurred which 'deprive[s] the controversy of its life.' [Citation.]" (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 257.) An appeal that initially involved justiciable controversies is subject to dismissal if the issues raised become moot while the appeal is pending. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)
The ongoing nature of dependency proceedings (In re Marilyn H. (1993) 5 Cal.4th 295, 307) and the numerous junctures at which interlocutory appeals are permitted by statute (§ 395, subd. (a); In re S.B. (2009) 46 Cal.4th 529, 532) "raise unique mootness concerns" on appeal. (In re N.S. (2016) 245 Cal.App.4th 53, 59.) "As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot. [Citation.] However, dismissal for mootness in such circumstances is not automatic, but 'must be decided on a case-by-case basis.' [Citations.]" (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) An appellate court will generally "reach the merits of a challenge to any jurisdictional finding 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.)
DCFS argues that the termination of jurisdiction and entry of a juvenile custody exit order, from which mother has not appealed, mean that we "can no longer provide mother with any effective relief[.]" Accordingly, it urges us to dismiss the appeal in its entirety as moot.
Mother opposes dismissal. She contends that her "failure to appeal the termination of jurisdiction order is not fatal" to her appeal because she "does not object to the termination of dependency jurisdiction; she objects that jurisdiction was ever taken." Moreover, mother argues that her appeal is not moot because the issues raised "could greatly affect the outcome of subsequent proceedings in family court." Specifically, she points to the likelihood that she "will continue to seek joint legal and physical custody of all of the children and, at the very least, some type of visitation with Dayna, unmonitored visits with Lauren and expanded visits with Sean[,]" and that the issue of whether father will relocate to another state with minors remains unresolved.
We find that mother has identified future proceedings where there is a realistic possibility that she could be adversely affected by the challenged jurisdictional findings. (See In re C.C., supra, 172 Cal.App.4th at p. 1488 ["'An issue is not moot if the purported error infects the outcome of subsequent proceedings.' [Citation.]"].) We therefore decline to dismiss mother's appeal of the October 9, 2018, jurisdictional findings and instead resolve it, as well as DCFS's cross-appeal of the failure to find jurisdiction under section 300, subdivision (a), on the merits in the following section.
In particular, the record confirms father's interest in moving to another state with minors. The juvenile custody exit order preceding the termination of dependency jurisdiction explicitly noted that the issue had not been adjudicated.
However, we conclude that mother's challenges to the December 10, 2018, dispositional orders—specifically, whether sufficient evidence supported the order removing Sean and whether the visitation order was an improper delegation of the juvenile court's authority—have been rendered moot by the termination of jurisdiction and the May 2019 custody exit order. Even if we were to find error regarding the dispositional orders, we would not be able to fashion a remedy that would have any practical effect. (See In re I.A., supra, 201 Cal.App.4th at p. 1490 ["An important requirement for justiciability is the availability of 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status"].) The dispositional orders removing Sean and regarding visitation with Dayna are no longer in effect, having been superseded by the custody exit order upon the termination of jurisdiction. Because we do not render advisory opinions (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912), we will not entertain mother's appeal of those moot issues.
Accordingly, we partially grant DCFS's motion to dismiss and dismiss as moot mother's appeal of the December 10, 2018, dispositional orders removing Sean from her custody and regarding visitation with Dayna. We deny DCFS's motion to dismiss with respect to the October 9, 2018, jurisdictional findings.
II. Substantial Evidence Supports the Jurisdictional Findings.
The juvenile court sustained counts and assumed dependency jurisdiction under section 300, subdivision (b)(1) (failure to protect) as to all minors; under subdivision (j) (abuse of sibling) as to Dayna and Sean; and under subdivision (c) (emotional abuse) as to Dayna and Lauren. The court dismissed the a-2 count regarding physical abuse of Lauren and therefore did not exercise jurisdiction under section 300, subdivision (a) (nonaccidental serious physical harm). Substantial evidence supports these findings.
A. Standard of review
We review the jurisdictional findings of the juvenile court for substantial evidence. (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) "Substantial evidence is evidence that is reasonable in nature, credible, and of solid value." (In re D.B. (2018) 26 Cal.App.5th 320, 328.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm . . . even if other evidence supports a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings . . . . [Citation.]" (In re T.W., supra, 214 Cal.App.4th at pp. 1161-1162.)
DCFS contends that our review of "which subdivisions of section 300 apply is de novo." This misinterprets our task when reviewing jurisdictional findings on appeal. We do not independently determine which statutory bases for juvenile court jurisdiction could apply given the evidence. Rather, we review the juvenile court's actual jurisdictional findings—sustaining or dismissing dependency allegations under particular subdivisions of section 300—and determine whether the findings were supported by substantial evidence. Moreover, the cases cited by DCFS for a de novo standard of review are inapposite because both engaged questions of statutory construction not required here. (In re Corrine W. (2009) 45 Cal.4th 522, 525, 529; In re Wanomi P. (1989) 216 Cal.App.3d 156, 159, 165.)
B. Sustained counts under section 300 , subdivisions (b)(1) , (c) , and (j)
Substantial evidence supports the juvenile court's findings of jurisdiction under section 300, subdivisions (b)(1) (failure to protect), (c) (emotional abuse), and (j) (abuse of sibling).
Under these subdivisions, the juvenile court has jurisdiction over and may adjudge to be a dependent of the court a "child [who] 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 . . . to adequately supervise or protect the child" (§ 300, subd. (b)(1)); a "child [who] is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent" (§ 300, subd. (c)); and a child whose "sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected" (§ 300, subd. (j)).
Dayna, Lauren, and Sean each expressed feeling unsafe around mother. Dayna and Sean both stated that Lauren, in particular, was not safe. Dayna had nightmares about mother killing her and even believed it possible that mother would kill Lauren by pushing her out of a car. Lauren had feared being left on the side of the road when mother yelled at her. Sean corroborated this account by reporting that mother threatened to kick Lauren out of the car.
Dayna reported to the DCFS social worker that mother hit minors and had choked and slapped Lauren. Dayna told therapist Hayes that mother slapped minors approximately one to two times per week and had locked Lauren out of the house. Dayna also reported to social worker Schimpff that "mother had choked her sister."
Dayna and Lauren expressed intense fear of mother. Neither felt loved by her, but rather intimidated and harassed. Mother caused Dayna so much stress that Dayna would sometimes become nauseated and vomit. And, of most concern, both Dayna and Lauren expressed the desire to die in order to escape the situation created by mother.
This constitutes substantial evidence that mother failed to adequately supervise or protect minors, which created a substantial risk that they would suffer serious physical harm, thus justifying dependency jurisdiction under section 300, subdivision (b)(1). Given the substantial evidence of mother's excessive physical force against Lauren—including choking and slapping—jurisdiction as to Dayna and Sean was also warranted under section 300, subdivision (j). Finally, Dayna and Lauren felt unloved, harassed, and intimidated by mother; as a result of mother's conduct, they expressed suicidal ideation. This was substantial evidence of emotional abuse to exercise jurisdiction as to Dayna and Lauren under section 300, subdivision (c).
We reject as meritless mother's arguments that substantial evidence was lacking.
First, mother points to and relies on conflicting evidence in the record and, rather than view the evidence in the light most favorable to the juvenile court's findings, she amplifies portions of the record arguably favorable to her position. Mother attacks minors' credibility, arguing that she may do so "where the testimony is 'inherently improbable.'"
Mother's position cannot be harmonized with the substantial evidence standard of review. As the appellate court, we are not empowered to reweigh the evidence or reassess witness credibility. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Instead, "we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]" (Id. at p. 53.) We "can only reject evidence accepted by the trier of fact when the evidence is inherently improbable and impossible of belief. [Citation.]" (People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.) Inherently improbable evidence is "'unbelievable per se' . . . , such that 'the things testified to would not seem possible.' [Citation.]" (People v. Ennis (2010) 190 Cal.App.4th 721, 725 (Ennis).)
None of the substantial evidence that we identify above is "'unbelievable per se[]'" (Ennis, supra, 190 Cal.App.4th at 725) or "show[s] any physical impossibility, apparent falsity or extreme outlandishness." (In re S.A. (2010) 182 Cal.App.4th 1128, 1149.) We therefore disagree that the evidence may be disregarded as inherently improbable. Rather, the evidentiary "inconsistencies and conflicts" alleged by mother "go to credibility of witnesses and weight of the evidence, which are matters for the [juvenile] court" alone. (Ibid.) The court concluded that minors were credible, which is a determination that must be accepted on appeal.
Second, mother argues that, even if she "slapped Lauren on occasion . . . ," such conduct "would not constitute 'severe physical harm.'" She points to the fact that Lauren was not observed to have visible marks or bruises when she was interviewed by the DCFS social worker. The juvenile court, however, was not compelled to find that minors suffered severe physical harm in order to exercise jurisdiction under section 300, subdivision (b)(1). (See In re I.J. (2013) 56 Cal.4th 766, 773 ["'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.' [Citation.]"].) Rather, given the ample evidence of inappropriate physical discipline imposed on Lauren—including slapping and choking—and the reasonable inference that each minor was at "substantial risk" of "serious physical harm" either inflicted by mother or self-inflicted should that conduct continue or escalate, dependency jurisdiction was warranted. (§ 300, subds. (b)(1), (j).)
We reject any suggestion by mother that her conduct was merely "her attempt to discipline and push her daughters to succeed." Although the Legislature did not intend to "prohibit the use of reasonable methods of parental discipline" (§ 300), the acts underlying the assumption of jurisdiction here are unreasonable forms of discipline.
We also find that mother's reliance on In re Isabella F. (2014) 226 Cal.App.4th 128 is misplaced, because that case considered whether, following an isolated incident where a parent used physical force against her daughter, the child had suffered "serious physical harm" to support jurisdiction under section 300, subdivision (a)—not subdivision (b)(1). (In re Isabella F., supra, at pp. 138-140.)
Third, mother contends that the root of any emotional distress suffered by minors was "both parents' engagement in a bitter divorce which permeated the lives of all of the family members." She blames father for exacerbating the family's dysfunction. This argument is irrelevant because, irrespective of father's conduct, substantial evidence of mother's conduct justified the juvenile court's assumption of jurisdiction over Dayna and Lauren based on emotional abuse under section 300, subdivision (c).
Finally, mother argues that this matter "is essentially a custody battle" that should have been litigated exclusively in family court. We disagree. Mother's argument "is inconsistent with the long-standing principle that dependency proceedings have primacy over family court proceedings when it comes to child custody matters. [Citations.] . . . . Family court proceedings are aimed at assessing 'the best interests of the child as between two parents.' [Citation.] Dependency proceedings are not so narrow in focus, and invoke the state's role as parens patriae in evaluating the best interest of the child, even if it means placement with someone other than the parents. [Citations.]" (In re Nicholas E. (2015) 236 Cal.App.4th 458, 465-466.) And, while we are mindful that "'[t]he juvenile courts must not become a battleground by which family law war is waged by other means,'" where there is sufficient evidence to warrant dependency jurisdiction—as we find exists here—"these concerns must give way to the primacy of dependency court jurisdiction and its special role." (Id. at p. 466.)
It follows that we affirm the juvenile court's findings of jurisdiction under section 300, subdivisions (b)(1), (c), and (j).
C. Dismissed count under section 300 , subdivision (a)
The juvenile court's dismissal of the count under section 300, subdivision (a) (nonaccidental serious physical harm) is also supported by substantial evidence.
The juvenile court has jurisdiction over and may adjudge to be a dependent of the court a "child [who] has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally . . . by the child's parent . . . ." (§ 300, subd. (a).)
The DCFS social worker observed that each minor was free of visible marks or bruises, and the record lacks evidence that mother's physical force caused minors to obtain medical attention for a physical injury. That is substantial evidence that minors did not suffer "serious physical harm inflicted nonaccidentally" by mother. (§ 300, subd. (a).) And, dependency investigator Steinhart's testimony that Sean would be physically safe with mother and that Dayna and Lauren would "probably" be physically safe too is substantial evidence that minors were not at "substantial risk" of "suffer[ing] serious physical harm inflicted nonaccidentally" by mother in the future. (Ibid.)
Contrary to DCFS's suggestion, the juvenile court's dismissal of the allegations under section 300, subdivision (a), is not incompatible with its finding of jurisdiction under section 300, subdivision (b)(1). "Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300." (§ 355, subd. (a).) The juvenile court could have reasonably concluded that the proof that showed by a preponderance of the evidence that there was "a substantial risk that [minors would] suffer[] serious physical harm or illness, as a result of the failure or inability of [mother] to adequately supervise or protect the child" (§ 300, subd. (b)(1)) did not satisfy by a preponderance of the evidence the narrower requirements of section 300, subdivision (a).
Finding substantial evidence in support, we must affirm the jurisdictional findings in full.
DISPOSITION
The juvenile court's October 9, 2018, jurisdictional findings are affirmed. Mother's appeal is dismissed as moot to the extent it challenges the December 10, 2018, dispositional orders removing Sean from her custody and regarding visitation with Dayna.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT