Opinion
E076286
06-17-2021
In re R.B. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.J., Defendant and Appellant.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Anna M Marchand, and Carol D. Perez, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWJ2000422 Michael J. Rushton, Judge. Reversed in part and affirmed in part.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, and James E. Brown, Anna M Marchand, and Carol D. Perez, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SLOUGH J.
J.J. (mother) appeals the juvenile court's jurisdictional finding that her children are at risk of substantial harm due to neglect, as described in Welfare and Institutions Code section 300, subdivision (b)(1) (Section 300(b)(1)). She argues the finding lacks evidentiary support because the only risk she posed to her children was her failure to protect them against her husband's dangerous behavior, and he passed away before the court made the finding. We agree and reverse the jurisdictional finding, but otherwise affirm. The exercise of jurisdiction must be based on a finding of current risk.
I. FACTS
A. Child Welfare History
The subjects of this dependency are mother's four children. She had the first two, 14-year-old twin boys, with alleged father Lonney B., whose whereabouts remain unknown. She had the second two, a seven-year-old son and a 14-month-old daughter, with R.C. (father). Mother and father were married and had lived together off and on from 2007 to 2014, when father went to prison.
This is the second time the Riverside County Department of Public Social Services (the department) has investigated mother's family. In 2013, the department received a report alleging father hit one twin, choked the other, and punched mother (who was pregnant at the time) in the neck. The referral also alleged father backed mother's car into a pole. Mother denied the allegations and said she backed her own car into the pole. She also said she didn't have father's contact information. The twins said father backed the car into the pole, and one of them said he didn't want father living in the home because he “ ‘always hits me and my brother.' ” Though general neglect allegations were substantiated, allegations of physical abuse and emotional abuse were deemed inconclusive.
B. The Current Dependency Petition
In 2019, father got out of prison, and he and mother continued their relationship until an incident occurred the following summer. On August 26, 2020, father was drunk and acting belligerent. Mother told him to leave her home and he did. He returned the next day, drunk again, and mother made him leave. Later that day, however, he drove his car into a neighbor's kid's bedroom, causing significant property damage but no injuries. He fled the scene, but returned later that evening, at which point he and mother started fighting.
When mother got into her car with her daughter, father threw a rock through the windshield, hitting the child in the forehead. Mother called the police and then took her daughter to the hospital. She suffered a minor abrasion.
The department received a referral about this incident, and the social worker interviewed mother and the children. Mother said father had a history of using methamphetamine, marijuana, and alcohol, and she denied being in a relationship with him. She said she didn't have any concerns about his current substance use, but he had been drinking more heavily since being released from prison. According to her, he threw the rock in anger because she asked for his insurance information after he'd crashed into the neighbor's bedroom. She also said she didn't intend to seek a restraining order because she wasn't speaking to him or allowing him to be around the children anymore.
The seven-year-old son told the social worker mother takes good care of him but doesn't like father because he pushes mother. On the day of the incident he saw his parents fighting and saw father drinking. He only heard glass breaking and didn't see father throw the rock. One of the twins said father was a “ ‘violent person.' ” He said he saw mother and father arguing and father throw the rock through the windshield.
On September 1, 2020, the department filed a dependency petition on behalf of all four children, alleging they came within section 300(b)(1), (failure to protect) because the parents have a history of domestic violence (allegation b-1) and because father abused substances (allegation b-2) and was currently on parole for assault with a deadly weapon (allegation b-3). The next day, the court found a prima facie case that all four children came within section 300(b)(1), and the twins came within Welfare and Institutions Code section 300, subdivision (g), unlabeled statutory references refer to this code, as well. It detained the children from father's custody and maintained them in mother's.
The petition also made allegations against the twins' alleged father Lonney B., which we omit because they aren't relevant.
C. Post-detention
The department interviewed the family about a week after detention. The children were healthy and developmentally on track. One twin told them he felt safe with mother, and she didn't physically discipline him. He said his parents yelled at each other but never got physical. The other twin said he could tell father was drinking the night of the incident because his eyes were blank and “ ‘his face looked droopy and was going down.' ”
The social worker interviewed the three oldest children privately. The twins said they were doing well or decent in school but both expressed that they preferred attending school in person. The seven-year-old child attended kindergarten online. The department didn't note any educational issues with any of the children. The three eldest children said they had a good relationship with mother, a good childhood, good relationships with their siblings, and always felt safe with mother. All four children appeared healthy and well cared for.
Mother denied father was ever physical with her or the children. She said the children may have had to intervene when she and father yelled at each other, but that happened seldomly. She said father drinks, but he hadn't used marijuana or methamphetamine since high school. The department didn't know where father was, and there was an active arrest warrant for him. Mother said she hadn't had any contact with him or his family since the rock-throwing incident. On September 28, 2020, mother informed the social worker that father had died. She said she didn't think domestic violence classes were necessary because father never hurt her or the children. On October 8, 2020, the department amended the petition to strike the allegations against father from the petition. The court ordered mother to participate in an assessment for therapeutic services. Mother met with a therapist that month, but denied she needed therapy or that any domestic violence had taken place in her home.
On November 17, 2020, mother's counsel told the court she was willing to participate in the family maintenance voluntary program. The next day, mother told the social worker she would attend the program because it seemed like she had no choice in the matter. However, she noted it would be an inconvenience because she was in the midst of grieving for father. When the social worker explained the department was recommending parenting education, domestic violence classes, and therapy for both her and her children, mother said she didn't think her children needed therapy.
When the social worker met with mother about a week later, mother admitted she hadn't called any of the service providers. She said services weren't necessary because neither she nor her children had ever been victims of domestic violence. The children appeared healthy, well-dressed, groomed, and engaged in appropriate activities including virtual school.
Prior to the jurisdiction and disposition hearing, the department recommended the court declare the children dependents, despite father's death, because of mother's “ongoing refusal to admit the impact the father had on both her and the children's well-being.”
D. Jurisdiction and Disposition
At the jurisdiction and disposition hearing, the parties stipulated mother would testify that she attended one counseling session and scheduled another. She would also testify that she was not currently-nor did she have any plans to be-in a romantic relationship.
Counsel for the children argued jurisdiction would be proper “if [father] were still alive, ” but given his death there was no risk to the children, and any risk that mother might enter into another violent intimate partnership was “very speculative.” Mother's counsel admitted she initially refused to participate in services, but said she now intended to participate in them if offered. Counsel explained that mother was overwhelmed at the time because she was raising four children and dealing with the start of a new job.
The court said that it would grant a request to dismiss the petition if the department chose to make one, but when the department didn't move to dismiss, the court reasoned there were grounds for asserting dependency jurisdiction. The court explained that although it “would have liked to have seen this matter closed out via voluntary family maintenance, ” the record did indicate mother was uncooperative with the department. The court also found that mother lacked insight into her failure to protect her children from domestic violence, and based on this finding, concluded she “could seriously benefit from the assistance of these services at this time.”
The court struck the allegations concerning father and the domestic violence allegation against the parents (allegations b-1 through b-3). It sustained a new allegation (allegation b-5) against mother for failing to protect her children from father's abuse, found that all four children fell within section 300(b)(1), and declared them dependents. The court maintained the children in mother's custody and ordered the department to provide family maintenance services.
The court also found true allegation b-4, and that the twins fell within section 300, subdivision (g), which concerned allegations against their alleged father Lonney B.
Mother timely appealed.
II. ANALYSIS
Mother argues there is insufficient evidence to support the court's jurisdictional finding because any risk to the children was eliminated when father passed away. We agree.
A. Applicable Legal Principles
In order to conclude a child is subject to its jurisdiction, the juvenile court must find that the child falls within any of the descriptions set out in section 300. As relevant here, section 300(b)(1) authorizes a juvenile court to assert jurisdiction over a child if the “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... to adequately supervise or protect the child.” (Italics added.) The burden is on the agency to demonstrate the following three elements by a preponderance of the evidence: “(1) neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness.” (In re L.W. (2019) 32 Cal.App.5th 840, 848.) “ ‘The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' ” (In re J.N. (2010) 181 Cal.App.4th 1010, 1022, italics added.)
When reviewing jurisdictional findings in the face of an evidentiary challenge, we look to see if substantial evidence, contradicted or uncontradicted, supports them. (In re E.E. (2020) 49 Cal.App.5th 195, 206.) “ ‘ “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.”' ” (Ibid.)
B. The Record Does Not Adequately Support the Jurisdictional Finding
On this record, we conclude the jurisdictional finding lacks sufficient support because there was no evidence of a defined risk of harm at the time of the hearing. It's undisputed the risk of harm in this case was mother's failure to protect the children from father's dangerous behavior. It follows then that this risk of harm could no longer exist once father passed away.
The fact the record contains substantial evidence to support a finding that mother failed in the past to protect her children from father, as well as a finding that she could benefit from domestic violence services, does not alter our conclusion. To be sure, a parent's lack of insight into the danger another person poses to their child is often compelling evidence to support a jurisdictional finding under section 300(b)(1), but not in the rare case, like this one, where the children needed to be protected from only one person and that person passes away before the jurisdiction hearing. In other words, the danger posed by mother's inability to protect her children dissipated when the risk she needed to protect her children from went away, permanently. “Dependency proceedings are civil in nature, designed not to prosecute a parent, but to protect the child.... [T]he paramount concern is the child's welfare.” (In re Mary S. (1986) 186 Cal.App.3d 414, 418-419.)
Mother correctly cites a number of cases to support the notion that past domestic violence doesn't justify jurisdiction if there is no ongoing threat such violence will recur. In In re M.W. (2015) 238 Cal.App.4th 1444, the appellate court reversed a similar jurisdictional finding to the one here on the ground that the parents had engaged in only one incident of domestic violence and the father was incarcerated by the time of the hearing. (Id. at pp. 1446, 1454.)
Similarly, in In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy H.) and In re Jesus M. (2015) 235 Cal.App.4th 104 (Jesus M.), the appellate courts reversed jurisdictional findings for lack of sufficient evidence because there was no evidence of ongoing violence between the parents. In Daisy H. a single domestic violence incident two years prior to the petition was not sufficient to demonstrate an ongoing risk to the children involved in that case. (Daisy H., at p. 717.) In Jesus M. the appellate court reversed a jurisdictional finding where “Father had committed acts of domestic abuse years ago, but thereafter restricted his misconduct to harassing Mother and denigrating her to the children.” (Jesus M., at p. 112.) As that court noted, “where, as here, one parent has behaved badly, undeniably causing family trauma, but presents no obvious threat to the children's physical safety, ” jurisdiction under section 300(b)(1) is inappropriate. (Jesus M., at p. 112.)
The department argues these cases are distinguishable because they involve isolated domestic violence incidents that occurred years before the jurisdictional hearing. They also point out that in Daisy H. the children didn't witness the violence, and Jesus M. the abused parent took active efforts to separate from the abuser. While we agree the facts of these cases are different, we don't find the differences important to our analysis. What is important is the thing they all share with this case, which is that the risk of recurring domestic violence had gone by the time of the jurisdiction hearing. If anything, this case presents an even stronger case for finding no ongoing risk because we can conclude with absolute certainty that the threat father posed no longer exists.
The department raises two additional arguments to support the dependency court's finding. First, they argue the evidence of father's past abuse justifies jurisdiction on a failure-to-protect basis. Second, they argue the children are at current risk of ongoing emotional harm. We are unpersuaded.
As to the past conduct argument, the department is correct that “past conduct is a good predictor of future behavior” (In re T.V. (2013) 217 Cal.App.4th 126, 133.), but again, this is the rare case where we can be certain the risk of harm no longer exists. Mother's failure to protect related to a particular person (father) and there's no evidence to indicate she's at risk of failing to protect the children from anyone else. There is no evidence mother's general protective capacity is diminished by, for example, mental health or substance abuse issues-issues that would remain even if the abuser is no longer around. Instead, the department's argument assumes that mother will act similarly in future relationships. But mother wasn't in a relationship at the time of the jurisdictional hearing nor was there any evidence that she had a history of abusive partnerships outside her relationship with father. On this record, any concerns about how mother may act in a future relationship is simply too speculative a basis for asserting dependency jurisdiction. While “ ‘substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding.' ” (In re Drake M. (2012) 211 Cal.App.4th 754, 763, italics omitted.)
As to the emotional harm argument, section 300(b)(1) does not permit a court to assert dependency jurisdiction based solely on emotional harm. (See Daisy H., supra, 192 Cal.App.4th at p. 718.) The department's reliance on In re D.P. (2015) 237 Cal.App.4th 911 is misplaced because that case involved section 300, subdivision (c), which does authorize a court to assert jurisdiction if the child “ ‘is suffering serious emotional damage.' ” (In re D.P., at pp. 918-919.)
The department's reliance on In re Heather A. (1996) 52 Cal.App.4th 183, 187 is also unavailing because that case involved an ongoing threat of domestic violence. As we've discussed, there is no ongoing threat in this case. Unfortunately, this is not because mother recognized the danger father posed and protected herself and her children from his abuse, nor is it because father rehabilitated his violent tendencies. Either circumstance would have been preferable to what actually happened. Nevertheless, the threat father posed to his family no longer exists, and this is the goal of dependency-eliminating the risk of harm to children. (See § 300.2 [“the purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm”].) That this came to pass because of circumstances outside mother's control doesn't change that the children are, by all evidence, safe from anything but speculative future harm. Though there is ample evidence mother was in denial about the danger father posed, there is no evidence that mother currently poses any risk of harm to the children. Indeed, by all accounts, the children are healthy and happy in mother's care and are bonded to her.
III. DISPOSITION
We reverse the jurisdictional finding pertaining to mother's conduct (count b-5), but in all other respects we affirm the judgment.
We concur: CODRINGTON Acting P. J.FIELDS J.