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In re J.M.

California Court of Appeals, Fourth District, Second Division
Jul 17, 2008
No. E043804 (Cal. Ct. App. Jul. 17, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIJ113940, Robert Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Karen J. Dodd, under appointment by the Court of Appeal, for Minors


OPINION

RAMIREZ P. J.

FACTUAL AND PROCEDURAL HISTORY

Mother and father separated in 2004 and were divorced in 2007. Meanwhile, mother’s boyfriend, James, moved in with her and her children, 13-year-old J.M. and 11-year-old O.M, and mother and James had a son together, James, Jr. On February 26, 2007, the Riverside County Department of Public Social Services (department) received an “Immediate Response Referral” report that J.M. had run away before school that morning because James had hit him the night before and he was in pain. Later that day, a department social worker transferred O.M. from mother’s home to father’s and advised both parents to report the matter to the family law court handling their divorce case.

As mother and the department point out in footnotes in their briefs, the referral date in the detention report in this case (repeated in the J/D reports) appears to be incorrect. The sequence of hearings and other documentation show that, although the detention report filed March 27, 2007, lists the referral date as February 26, 2006, the actual date was February 26, 2007. Similarly, the date on one of the prior referrals, given as January 7, 2004, should probably be January 7, 2005.

J.M. was already with father and had accompanied him to the Moreno Valley Child Protective Services (CPS) office.

J.M. told the social worker that James was always mean to him and his sister and that when James hit J.M. in the head and on the back, or grabbed him by the neck, mother did not do anything about it; sometimes when James hit J.M., mother laughed. In addition, J.M. said, James and mother “cussed” at him and O.M. and called them names. J.M. was afraid to go home because mother had said that if he ran away again, she would kill him, and James had said he would break every bone in J.M.’s body.

When the same social worker asked O.M., who was developmentally delayed, if anyone ever hit her, O.M. shook her head “yes.” She said the person who hit her was James. Asked to show where she got hit, O.M. pointed to her head, back, and buttocks; asked to show where J.M. got hit, she pointed to her head. When asked if mother or father ever hit her, O.M. shook her head “no.” O.M. was afraid of James.

Mother insisted that it was impossible for James to have hit the children because they were “never, never” alone with him. Mother told the social worker that she did not believe her children, that they were both lying about James hitting them, and that J.M. “must have told [O.M.] what to say.” Since they had filed for divorce, mother said, she had been having problems with her estranged husband. She thought he may have coached J.M. to say he was being physically abused by her fiancée. Father, she said, frequently canceled his visits with J.M. and O.M. As mother told of his canceled visits, the two social workers could see that she appeared to be documenting her statements from a day calendar with blank spaces.

The social worker explained to mother that the children had given similar stories about being hit by James and that they were going to be detained at father’s home until the matter could be sorted out by family law court. When mother was told that both children had disclosed they were afraid of her boyfriend, she showed no concern. The social worker asked mother to pack some clothes for the children and to include J.M.’s psychotropic medication. Mother provided only a few items and said that if they needed more, father could wash them out or call her. At first, mother failed to pack any of J.M.’s medication. Two days later, at the repeated request of another social worker, she provided 11 of the Concerta pills J.M. was supposed to be taking every day. On February 27, 2007, father obtained a temporary custody order from family law court.

Mother later testified that she had decided to keep most of the medication back because, she said, she did not know how long J.M. would be with father and that as a “pharmacy tech” she understood the importance of medicines.

On March 22, 2007, the divorce between mother and father became final. The family law court awarded mother sole physical and legal custody of J.M. and O.M., and ordered father to return the children to her. Later that day, father went to the department’s Moreno Valley office and told the social worker that the judge had ordered the children returned to mother. The social worker reiterated that the children needed juvenile court protection. The social worker left mother a phone message saying that the children were to stay in father’s care until after the detention hearing scheduled for March 27. Mother, however, called the Moreno Valley Police Department to return the children to her pursuant to the family law court order. When the police arrived at father’s home, J.M. ran away to avoid being returned to mother and the police were able to return only O.M. Mother told father he could “keep [J.M.]” because she only wanted O.M.

The next day, March 23, when the social worker went with a police investigator to mother’s home to retrieve O.M., mother locked the door and refused to open it until the police investigator threatened to break the door down. When mother finally opened the door and permitted O.M. to leave, the child appeared “terrified” as she walked slowly out of the apartment with her head down and her finger in her mouth. Mother refused to give the social worker a jacket for O.M. saying, “[S]he has stuff at her dad’s.” The police investigator interviewed O.M. separately. The child told him that James had spanked her with a belt in the past, leaving marks, and that mother had told her not to tell anyone. Over the next few days, O.M. remained withdrawn and concerned that the police might come and take her away, asking, “[A]re they gonna come get me tonight[?]”

Detention:

On March 26, 2007, the department filed a Welfare and Institutions Code section 300, subdivision (b), petition alleging, among other things, that the children had suffered and were at risk of suffering serious physical harm in that: mother had allowed her live in boyfriend to abuse them by hitting them in the head, grabbing them around the neck, “cussing” at them, and calling them names (b-1); J.M. was afraid to return home because mother and her boyfriend had threatened him, and he thought they would hurt him (b-2); mother knew or should have known that the children were at risk of physical harm, that she refused to believe them, and that she insisted that the boyfriend was never alone with the children (b-3); mother had a prior history with the department in that there had been at least five prior referrals between 2004 and 2006 (b-4); father was not a member of the household and had failed to provide the children with adequate support and protection (b-5); and mother had neglected the medical needs of the children (b-6).

The detention report documented the history of the five prior referrals. On May 24, 2004, a referral was received alleging that two years earlier father had handcuffed J.M. to the bed on three occasions because of J.M.’s misconduct at school; that mother’s boyfriend James pinched J.M.; that mother “popped” him; that mother left the children home alone; and that mother was working and when J.M. was sent home from school, he was locked out of the house. Father, the referral further alleged, had made two suicide attempts. “The allegation of general neglect was substantiated and unfounded for emotional abuse.”

On June 1, 2004, the department received another referral for general neglect. This time it was reported that when father returned the children to mother after their weekend visit with him, mother’s boyfriend—against whom father had a restraining order—was with her and that the boyfriend threatened to kill father and the children with a gun. Reportedly, the boyfriend chased father and the children down the freeway; the children confirmed this.

On September 9, 2004, the department received still another referral alleging general neglect. This referral was “evaluated out.”

On January 7, 2004, the department received a report alleging (1) that mother had picked J.M. up by the neck and had grabbed him by the throat while shopping at Stater Brothers; (2) that the children were not eating as there was no food in the house; and (3) that mother’s boyfriend had hit O.M. with a belt. According to the investigating social worker, “there were no visible marks or indications of neglect” and the “allegations were unfounded.”

See footnote 1, ante.

Finally, on May 30, 2006, the department received a report that a week earlier mother’s boyfriend had spanked J.M. on his legs, back, and buttocks with a belt for “breaking the house rules and not doing his chores.” The investigating social worker saw the child at school. He had “a slight bruise on the back of his leg, which he sustained when the mother spanked him with a belt.” Mother claimed the bruise on J.M.’s leg had occurred while he was wrestling. When the child was interviewed in her presence, he denied being abused. James refused to speak to the social worker. Although the allegations of general neglect were “substantiated,” the allegations of physical abuse for this referral were “inconclusive.”

At the detention hearing on March 27, 2007, the court found prima facie evidence to support the allegations in the petition and detained the children with father. Mother’s request for their return was denied and she was ordered to provide them with their personal belongings, including “boots, backpacks and Game Boy.” A J/D hearing was set for April 17, 2007. On April 17, at the request of mother’s new counsel, the matter was set for contest on June 6. On June 6, the matter was again continued, this time to June 27.

Jurisdiction/Disposition:

The J/D report filed on April 13, 2007, outlined the supporting evidence for the allegations in the petition. The social worker had interviewed J.M. and O.M. on April 5. J.M. reported that mother and her boyfriend hit him and O.M. with a white plastic pipe on which the children’s names had been written; that James once choked him because he bought a tube of toothpaste for O.M.; and that mother and James yelled and cursed at the children and said “MF, the B word, the F word, and the N word. She calls my dad an A hole and F head.” On one occasion, when J.M. accidentally put his sister’s salad in the microwave, James “cursed at me and called me a stupid moron.” O.M. said that James had once spanked her with a belt because she left her jacket in the wrong place; that mother and James said “curse words” to her and to J.M.; and that James hit her brother in the head. O.M. said mother had never hit her.

The social worker had also interviewed mother, father, and James. Mother denied all of the children’s statements. She said J.M. was lying and coaching O.M. to say the things she had said. Mother thought J.M. had intentionally put his sister’s salad in the microwave to be mean. Father believed that mother and James had hostility toward him and took it out on J.M. James denied ever hitting or spanking J.M. and O.M. with a belt.

An addendum filed June 4, 2007, reported that the children were doing well in father’s care. O.M.’s teacher reported that “[O.M.] is so happy with her dad. She’s the happiest, I’ve never seen her happier. . . . She’s improving in school and her grades are getting better.” O.M. wanted to live with father. J.M. too said he was happy living with his father and wanted to stay there. Although father was frequently late bringing the children to supervised visits with mother, the visits were going well. It was clear to the social worker that the family had ongoing custody issues and that the parents could not get along.

At the contested hearing on June 27 and 28, 2007, the children, father, mother, and psychologist Leland Dedrow (Dedrow), all testified. J.M. had been referred to the psychologist because he was having problems in school. Dedrow had seen J.M. for a total of 11 counseling sessions between October 2006 and April 2007. Dedrow believed J.M. was acting out in school because he was very angry. J.M. had told Dedrow that he preferred to live with father; now that he was doing so, he appeared to be less angry. Dedrow thought that J.M. “loved his mom very much. He adores her. I don’t think he wants to damage her in any way.” In the last two sessions with Dedrow, J.M. and O.M. (whom Dedrow had seen during a number of his sessions with J.M.) appeared happy and more carefree.

O.M. testified that mother had told her J.M. was lying. Whenever she got in trouble, she said, James spanked her on her “butter” with a belt. O.M. said she disliked James and liked father. O.M. had heard her brother crying in his room after getting a “whoopin’” from James.

J.M. testified that James hit him with a belt and sometimes with his fist. When James hit J.M., his mother ignored him or laughed at him. J.M. really did not know why he got in trouble at school, but when he did his mom would allow James to hit him and would then send him to his room. He did not get in trouble at school as often now that he was living with father. J.M. explained that he told lies when he was in sixth grade to avoid getting hit by mother or James when he got home from school. J.M. was happy living with father.

Father testified that he had reported mother to CPS five or six times because she and James were hitting the children. Mother testified that father and she had had domestic violence incidents in the past and that father had tried to kill her with a knife. Once when J.M. ran away, police found him at the hospital telling the nurses that “he gets beat up all the time.” Mother denied ever using corporal punishment to discipline her children. According to mother, James never struck the children and she had never seen or heard about them getting hit by him. She did not curse in front of the children other than to say “damn” or “ass” or “pissed off.” She had no plastic pipe to use to hit the children. If they said James hit them, they were lying.

After testimony, counsel for the department, for the children, and for father urged the court to find the allegations in the petition true, to take jurisdiction, and to order reunification services for mother and family maintenance services for father. Counsel for father felt that in the interests of the children’s well-being, services should be offered to James as well. Counsel for mother argued that the children’s testimony was inconsistent and that J.M. had lied about being hit in mother’s home. But counsel did agree that J.M. seemed to have calmed down since living with father.

The court found allegations b-1 through b-5 true, and ordered that the children remain with father under the supervision of the social worker. Father’s progress toward alleviation of the problems that had necessitated the children’s placement was satisfactory; mother’s was unsatisfactory. The court ordered reunification services for mother, family maintenance services for father, and nonstatutory services for James, and set the six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)) for November 26, 2007. On August 3, 2007, mother filed a notice of appeal of the June 28 jurisdictional and dispositional orders. Mother filed her opening brief October 25. Respondent’s brief was filed January 3, 2008. Mother’s reply brief was filed January 25.

Meanwhile, on December 18, 2007, the juvenile court terminated its jurisdiction and issued an order placing the children in the physical custody of father and in the legal custody of both parents. Mother was granted “reasonable visitation.” On December 27, the juvenile court’s custody order was filed with the Riverside Family Law Court. In view of the termination of dependency jurisdiction, on January 10 minors’ appellate counsel filed a motion to dismiss mother’s appeal as moot. On January 28, mother filed an opposition to the motion to dismiss the appeal. Mother’s opposition stated that because the dependency court’s termination of jurisdiction included orders changing the family law court’s earlier decision giving her sole physical and legal custody of the children, and was conditional on the filing of the new custody order by the family law court, the matter was not moot. Mother wanted the matter resolved by a dismissal of the original Welfare and Institutions Code section 300 petition, not merely by termination of dependency jurisdiction. On February 14, 2008, minors’ appellate counsel asked us to take judicial notice of the December 27, 2007, filing of the December 18 juvenile court final custody order by the Riverside Family Law Court. We reserved our ruling on the motion to dismiss, the opposition, and the request for judicial notice for consideration with the appeal. We now accept the filing of these documents and will dismiss the appeal as moot. However, as we explain below in the interest of judicial economy, even if the matter were not moot we would affirm the jurisdictional findings and dispositional order of the juvenile court.

DISCUSSION

Mootness:

An appellate court’s jurisdiction extends only to actual controversies for which the court can grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) If subsequent acts or events have rendered the questions raised in the appeal moot, then the action no longer presents a justiciable controversy. (In re Christina A., supra, at p. 1158.) Where a juvenile court has terminated its jurisdiction in a dependency case, an appellate court has no jurisdiction and an appeal from an order of that court becomes moot. (In re Michelle M. (1992) 8 Cal.App.4th 326, 330.) However, when a juvenile court terminates its jurisdiction over a dependent child, its custody order may be used as a sole basis for opening a file in the superior court. Thereafter, the parties may seek relief or modification of that order in the superior court based on a showing of the best interest of the child and to ensure the child’s health, safety, and welfare. (Id. at p. 328; Welf. & Inst. Code, § 362.4; Fam. Code, §§ 3011, subds. (a)-(b), 3020, subds. (a)-(c).)

Here, the dependency court dismissed jurisdiction on December 18, 2007, and its custody order was filed in the superior court 10 days later. There are thus no ongoing dependency proceedings, this court no longer has jurisdiction to review the earlier orders, and the appeal is moot. If she still seeks a modification of the custody order, mother’s avenue of relief now lies through superior court.

Standard of Review and Dependency Jurisdiction:

When the sufficiency of the evidence to support a finding or order is challenged on appeal, in dependency matters as in other cases, the reviewing court reviews the whole record to determine if there is substantial evidence—reasonable, credible, and of solid value—to support the conclusions of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, all conflicts are resolved in favor of the prevailing party; issues of fact and credibility are questions for the trier of fact. (In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The juvenile court’s custody decision will not be disturbed unless it is arbitrary, capricious, or patently absurd and exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Analysis:

Here, there was substantial evidence of the type required to support the juvenile court’s findings and orders. Although the prior referrals had all been closed as unsubstantiated or inconclusive, the court had detailed summaries of the facts pertaining to the referrals in the record before it. Most importantly, the court had abundant evidence that the prior abuse was ongoing. J.M. and O.M. both reported consistently over time and consistently with each other that mother’s boyfriend, James, was hitting them and that mother was failing to protect them.

J.M. said that James grabbed him by the neck, hit him with a belt, with his fist, with a plastic pipe, and that mother either did nothing about it or laughed at him. James had threatened to “break every bone in [J.M.’s] body” if he ran away. O.M. pointed to her head, back, and buttocks when asked to show where James hit her. She told the social worker, “James spanked me with a belt one time because I left my jacket in the wrong place.” O.M. confirmed J.M.’s version of his own abuse: she had heard J.M. crying after getting a “whoopin’” from James. Both children reported that mother and James “cussed” at them and called them names, and both children disliked and were afraid of James.

It is true that mother disputed these stories, but the juvenile court was entitled to evaluate her credibility compared to that of the children. And there were a number of facts that tended to undermine her version of events. At the beginning of the case mother insisted—unlikely as it was—that her children were “never, never” alone with James. Two different social workers observed mother trying to document her complaints against father by pointing to a day calendar with blank spaces. O.M. told the police investigator that mother had warned her not to tell anyone about James hitting her with a belt—an admonition that demonstrated mother’s willingness to manipulate the truth, through her child, to protect her boyfriend.

Moreover, mother’s actions and testimony demonstrated her indifference to her children and her unwillingness to protect them or to put their well-being ahead of her own. She refused to believe the children and repeatedly insisted they were lying. When the children were transferred to father’s home, mother intentionally failed to pack J.M.’s medication, medication that as a parent and as a pharmacy technician she knew he was to take on a daily basis. She also packed only a few articles of the children’s clothing and suggested that if they needed more, father could just wash the ones she sent him. Reportedly, she also sent clothes that were too small and really worn. On one occasion, when the social worker asked for a jacket for O.M., mother refused to give her one, saying, “[S]he has stuff at her dad’s.”

Finally, the court had evidence that the children had begun to do better in a number of ways after they moved to father’s home. Dedrow testified that J.M. seemed happier and less angry during his counseling sessions since he had moved from mother’s home to father’s. Dedrow had also observed that both children were happier and more carefree now that they were living with father. J.M. testified that he was not getting in trouble at school as often since he had begun living with father and he wanted to stay there. O.M. too seemed better and wanted to continue living with father. O.M.’s teacher told the social worker that the child was happier than the teacher had ever seen her and that her grades were improving. In closing argument, even mother’s attorney admitted that J.M. seemed better in father’s care.

All this amounted to substantial, credible evidence from which a reasonable trier of fact, in this case the juvenile court, could have concluded that O.M. and J.M. came within its jurisdiction and that when it came to placement, they were better off living with father than with mother.

DISPOSITION

The appeal is dismissed as moot.

We concur: GAUT J., MILLER J.


Summaries of

In re J.M.

California Court of Appeals, Fourth District, Second Division
Jul 17, 2008
No. E043804 (Cal. Ct. App. Jul. 17, 2008)
Case details for

In re J.M.

Case Details

Full title:In re J.M. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 17, 2008

Citations

No. E043804 (Cal. Ct. App. Jul. 17, 2008)