Opinion
B307062
07-13-2021
In re T.H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.H., Defendant and Appellant.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 19CCJP07663A-D, Victor G. Viramontes, Judge. Affirmed.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
GRIMES, ACTING P. J.
Mother M.H. appeals the juvenile court's jurisdictional and dispositional orders as to her four children, now 12-year-old T.H., seven-year-old P.W., five-year-old M.W., and two-year-old J.W. Mother contends the juvenile court applied the wrong legal standard, and that there was no substantial evidence of current risk of harm to the children. The court took jurisdiction more than nine months after the referral leading to the Los Angeles County Department of Children and Family Services' involvement with the family, and mother and father had engaged in and benefited from services by the time of the jurisdictional hearing. Mother also challenges the removal order, arguing there was no evidence removal was the only way to protect the children. We affirm, finding substantial evidence supports the court's jurisdictional findings, and that because the children have since been returned home, the challenge to the dispositional order is moot.
FACTUAL AND PROCEDURAL BACKGROUND
This family came to the attention of the Department following a September 2019 physical abuse referral for T.H. and P.W. A school employee saw T.H. “viciously” punch P.W. three times in the stomach while walking to school. When the reporting party approached P.W., she flinched as if afraid of getting hit, and covered her eye as if it were injured. When asked what was wrong, P.W. reported that mother had hit her with a belt in the face. The reporting party noticed a small bump on her forehead.
When the school reached out to mother M.H. and father Patrick W. (who is not a party to this appeal), father acted defensive and aggressive, accusing school officials of being “out to get us.” Father threatened to withdraw the children from school. School staff were “scared for their own safety, ” worried that father “may try to harm staff because of the way he presented.”
When a Department social worker interviewed P.W. at school, she was wearing clothes that were much too big for her, and she had two visible scars. P.W. reported that when she misbehaves, her mother “whoops” her with a belt. She said she had been “whooped” twice with a belt, and that mother had “socked” her head that same day. She also said she had been “socked” one month before. She said her head hurts when she wakes up. Mother and father had also cursed at her, calling her a “b****.” She denied that T.H. ever hit her.
T.H. would not consent to being interviewed by the Department. The school reported that T.H. often had very poor hygiene and had an odor. Father became defensive every time the school attempted to address her hygiene. He had also refused counseling services offered to T.H. because she was being bullied at school.
When the Department social worker interviewed mother and father at the family home, they reported they discipline the children with timeouts. Mother also would sometimes pinch the children. Mother and father denied striking the children with a belt, “socking” the children, or calling them names. They believed the school was making false reports to the Department in retaliation for their complaints to the superintendent about T.H. and P.W. being bullied at school.
T.H. denied that she struck P.W., or that she had ever seen mother and father strike her. An older half sibling, N.W. (who is not subject to this appeal), denied any physical discipline.
The next day, father disenrolled the children from school. When the social worker went to the family home, father said he planned to enroll the children in a new school the following week.
A forensic examination of P.W., M.W., and J.W. was conducted on November 8, 2019. Father was reluctant for the children to be interviewed alone, and was “nervous and... sweating.” P.W. and M.W. both told the forensic examiner they were hit by mother and father with a belt and a hanger, and P.W. also reported getting hit by mother with a stick. P.W. reported that father hit her “hard” with a belt, resulting in a scar on her wrist, and that mother and father would slap her “hard” across the face. Father coached P.W. to report that her injuries were from a fall. The children denied the other children were hit by mother. Both P.W. and M.W. had numerous “old marks and scars.” P.W. had an “old patterned loop mark” typical of being struck by a cord. M.W. had a square shaped scar on her back, that M.W. reported resulted from being struck with a belt. The children did not have any new marks or bruises. J.W. had a “droopy eye, ” and the forensic examiner was concerned because father reported he had never visited the doctor or received any immunizations. The forensic examination reports concluded that P.W. and M.W.'s injuries resulted from abuse, but that there was no indication J.W. was being abused.
When confronted with the results of the forensic examinations, mother and father continued to deny any physical discipline of the children. Their explanation for the marks and scars was rough play by the children.
The children were removed from their parents on November 25, 2019. As the social worker was removing the children from the family home, mother called the social worker names, and “shoved” her.
Father has a history of referrals to the Department, including an April 2018 referral that he did not respond to calls from the school that N.W.'s insulin had spilled, and a January 2018 referral that father was neglecting N.W.'s medical needs.
The January 2020 jurisdiction report noted that mother continued to deny hitting the children. She claimed the scars were caused by rough play. However, further into the interview, she admitted that she struck the children with an open hand “when I did do the whooping.” But she denied hitting them with objects. She had not hit T.H. in five years. She denied father hit the children, and father continued to deny that he or mother ever hit the children.
N.W. admitted mother “was always hitting the little ones.” Once, mother covered all of the children's mouths with tape and made them stand in the corner for 30 minutes, because they were making noise. Father would also hit P.W. “a lot[, ] for no reason” and that “was traumatizing.” Once, when she accidentally cracked the television screen, he picked her up by the neck and choked her. She was “whimpering; trying to breathe and crying.” Father also “whoop[ed] [M.W.] on the butt with a belt.” Father would also often slap N.W. across the face and punch him in the stomach. He also threatened to strike N.W. if he did not administer his insulin correctly. Father sometimes hit N.W. for no reason, and would call him names like “b****” and “fat ass.” Father would also hit T.H. He hit her on her head with a belt for not doing her chores, and struck her with a wooden broomstick on the head after she missed a spot while sweeping. N.W. had not disclosed the abuse earlier because father told him not to say anything about it.
A March 2020 last minute information for the court noted that father was participating in parenting and anger management classes. He had completed eight out of 12 parenting classes and six out of 12 anger management classes. Mother had completed 11 anger management sessions and six parenting classes.
The children's caregiver reported that P.W. and M.W. would often play rough, but never sustained any marks or injuries. T.H. also “bullied” P.W. and M.W., and “choked” M.W. to the point that she almost lost consciousness.
The March 16, 2020 adjudication hearing was continued a number of times because of the COVID-19 emergency.
A June 2020 last minute information for the court reflected that father completed his parenting and anger management classes in March 2020. He had not yet enrolled in individual counseling. Mother had also completed her anger management classes and was close to completing her parenting course. She had an intake appointment for individual counseling, but her first counseling session was canceled because of the COVID-19 emergency.
The combined adjudication/disposition hearing was held on June 24, 2020. Mother testified that she completed anger management and parenting classes. She was unable to start counseling services because of the COVID-19 emergency. Mother felt that she learned how to appropriately discipline her children in the parenting course. Mother testified she would “push to do better.” She learned techniques to stay calm in her anger management class, and planned to apply what she learned to parenting her children. Mother was also eager to participate in individual counseling, and would comply with all court orders if her children were returned to her.
Mother admitted to striking the children with her hand some time ago but continued to deny striking the children with a belt or other objects, and she denied that father grabbed P.W. by the neck.
Mother's and father's counsel argued there was no current risk of harm to the children, given that the parents had benefited from services, and that the abuse occurred many months before the adjudication hearing.
The court found that the Department had met its burden of proof as to the allegations of physical abuse in the first amended petition, under Welfare and Institutions Code section 300, subdivisions (a), (b), and (j). The court did not mention “current risk” when making its findings but did discuss the seriousness of the allegations and evidence of abuse. The court removed the children from mother and father and ordered that mother and father could receive unmonitored visitation based on their progress in services. This timely appeal followed. While the appeal was pending, the children were returned to mother and father under the supervision of the Department.
DISCUSSION
1. Jurisdiction
Mother contends the juvenile court applied the wrong legal standard because it did not consider whether there was a current risk of harm to the children, and that there was no substantial evidence of current risk of harm at the time of the adjudication hearing because many months had passed between the referral and the adjudication hearing, and mother and father had benefited from services. We are not persuaded.
A child falls within the jurisdiction of the court under Welfare and Institutions Code section 300 when “the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent” (id., subd. (a)); “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 or guardian to adequately supervise or protect the child” (id., subd. (b)(1)); or “[t]he child's 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” (id., subd. (j)).
“Although [Welfare and Institutions Code] section 300 generally requires proof the child is subject to the defined risk of harm at the time of the jurisdiction hearing [citations], the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child [citation].” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) The court may consider whether past events require the court's present protection, if there is reason to believe that the parent will continue the conduct. (Id. at p. 1216.)
We review the entire record to determine whether substantial evidence supports the juvenile court's jurisdictional findings, resolving all conflicts and drawing all reasonable inferences in support of the findings. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
First, we are not persuaded the court failed to consider current risk when making its jurisdictional findings. Both mother and father argued that there was no current risk of harm before the court made its findings. Although the court did not specifically mention there was a current risk of harm when makings its findings, we find nothing in the record suggests the court misapplied the law. (People v. Eubanks (1996) 14 Cal.4th 580, 598 [“In the absence of contrary evidence, we assume a trial court applied the correct legal standard.”].)
Moreover, substantial evidence supports a finding of current risk of harm to the children. Even though mother and father were making progress in addressing their issues, they had not started individual counseling, and mother still denied the allegations of severe and sustained abuse reported by the children and confirmed by the forensic examiner. Moreover, father never once admitted to striking the children. Under these circumstances, there was ample evidence the children were still at risk by the time of the adjudication hearing.
2. Disposition
We need not consider mother's challenge to the removal order, as the children were returned to her care while this appeal was pending. Mother argues we should reach the merits of her claim of error, reasoning the improper removal order could prejudice her in the future because she may be afforded less time to reunify if the children are removed from her again. Mother's claims of prejudice are speculative. Reversal of the dispositional order would not provide mother with any relief beyond what she has already received. (In re Dani R. (2001) 89 Cal.App.4th 402, 404; see also In re Michelle M. (1992) 8 Cal.App.4th 326, 329-330.)
DISPOSITION
The orders are affirmed.
WE CONCUR: STRATTON, J., WILEY, J.