Opinion
D070393
01-31-2017
In re JOHN B., Jr., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JOHN B. et al., Defendants and Appellants.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant John B. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant Heather B. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SJ13248A-C) APPEAL from orders of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant John B. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant Heather B. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Heather B. and John B. appeal juvenile court orders removing their children from their custody after John hit Heather in the face while driving a car with the children in the backseat. The parents contend the court erred in assuming jurisdiction because the evidence was insufficient to show there was a substantial ongoing risk the children would suffer harm. John also asserts the evidence was insufficient to support the finding that removal was necessary and the court could have protected the children by alternative means, such as granting Heather sole custody, and Heather joins in his arguments. The San Diego County Health and Human Services Agency (the Agency) contends Heather's arguments are moot because the juvenile court has since returned the children to her custody and terminated jurisdiction.
We conclude Heather's appeal is not moot but that sufficient evidence supports the findings regarding jurisdiction and removal, and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Heather and John have been married for approximately 12 years and have three children together, Julian, Aiden, and John, Jr. When the children were 4, 9 and 11 years old, Heather and John got into an argument while in the car with the children. John turned the radio up because he did not want to listen to Heather, Heather reached for the controls to turn it back down, and John hit her in the face, chipping her tooth.
The argument continued into the evening at the family home and, although it did not become physical again, Heather eventually called the police. When the police arrived, Heather told them John had hit her in the mouth and cracked her tooth earlier that evening and that there had been unreported incidents of domestic violence between her and John in the past. John denied hitting Heather and said he had only put his hand up to stop her from reaching the controls on the radio. The two older children also said John had tried to block Heather from reaching the controls, causing her to hit her own hand against her face. The police called a social worker to assist and, when the social worker arrived, Heather reported that John had dragged her by the hair during a previous violent argument and that he frequently taunted her regarding two assaults she had endured while in the military. Heather and John each refused to leave the home but agreed to stay away from one another from the remainder of the evening.
The Agency received a referral regarding the incident and, approximately 10 days later, interviewed Julian and the principal at the older children's school. Julian reported John had hit Heather in the mouth and chipped her tooth, that John was controlling, and that sometimes John had "black outs" where he got so angry the children ran to their bedrooms. The principal told the Agency Heather frequently got upset and yelled for extended periods of time regarding situations with the children, that John did not allow Heather to speak to him (the principal) without John present or on the phone, and that he was concerned John was controlling Heather.
The following day, the social worker met with Heather, Aiden, and John, Jr. John, Jr. indicated John had told him not to discuss the family's private business but then disclosed that John had punched Heather in the face in the car. Like Julian, he said there were other times the children ran to their rooms because John was so angry, but that he also tried to intervene sometimes to get his parents to calm down. Aiden also recalled seeing John punch Heather and break her tooth and had been scared when it happened. Heather maintained that John had punched her in the face and also told the social worker John had previously slammed her arm in a door and was "very controlling". She had recently sought couples therapy and was hopeful she could get John help but minimized the most recent incident and refused to obtain a restraining order or to separate from John, even temporarily.
John was scheduled to meet with the social worker the same day but did not return after leaving to pick up Julian from school. His attorney called later and made an appointment for the following week but John missed the appointment and did not call to reschedule.
A few days later, the social worker spoke with Julian's teacher and she reported that when Julian had forged a signature on a math test, Heather had seemed overly worried about how John would react and had instructed Julian not to tell John, and that she had thought something was "off" about the situation. The social worker also talked to the school psychologist and social worker, but they did not have any concerns.
About a month after receiving the referral, the Agency filed petitions on behalf of all three children pursuant to Welfare and Institutions Code section 300, subdivision (b). The petitions alleged the parents placed the children at a substantial risk of harm by engaging in a violent confrontation in front of the children in the car, that the parents had a history of domestic violence, and that they had refused to engage in voluntary services. The court found the Agency made a prima facie showing based on the petitions, detained the children, and placed them with Heather's mother.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Over the next few weeks, the social worker interviewed John, Heather, Heather's mother, and the children. Heather's mother was hesitant to speak with the social worker but ultimately disclosed that Heather often called her during fights with John, that she had heard John yelling "like a monster," that Heather had once stayed in her room without food all day because of John's yelling, and that she had concerns regarding the emotional wellbeing of the children due to the fighting. Both John and Heather denied that John had hit Heather and asserted that John had instead put his hand up to block Heather because he thought she was going to grab the steering wheel. However, Heather admitted her tooth was chipped during the incident and that John had previously pulled her by the hair and slammed a door on her hand. The two older children also denied that John had hit Heather and that they had previously told the social worker he had.
At the pretrial settlement conference, Heather and John submitted to an amended version of the petition based on the Agency's reports, and the court made true findings and sustained the petitions. At trial, Heather testified she had been seeing her own therapist for several years, had been seeing a court-appointed therapist for approximately one month, had enrolled in a domestic violence program and attended the first class, and had taken a 12-hour online class about domestic violence on her own initiative while waiting to get into an approved program. She was living with John and believed she and the children would be safe with him, but was also willing to live separately from him if doing so would allow her to regain custody of the children.
The amended version excludes allegations regarding post-traumatic stress disorder (PTSD) and the parents' lack of cooperation with the Agency during the initial investigation.
At the conclusion of the trial, John and Heather argued the evidence was insufficient to establish a significant risk the children would be harmed and asked the court to return the children to their custody or, alternatively, to Heather's custody. The court found John and Heather had been involved in a volatile relationship for some time and, although Heather had begun addressing the underlying issues, she had not yet made significant progress and, therefore, the associated risk to the children remained high. The court removed the children from Heather and John's custody pursuant to section 361, subdivision (c)(1). Heather and John appeal.
During the pendency of this appeal, the juvenile court returned the children to Heather's custody, terminated jurisdiction, and issued agreed-upon exit orders giving John weekly supervised visitation.
We grant Heather's unopposed request for judicial notice of the juvenile court's September 29, 2016 minute orders to consider whether the appeal is moot as a result. (See Evid. Code, § 452, subd. (d); In re Karen G. (2004) 121 Cal.App.4th 1384, 1390 [judicial notice taken of minute order from six-month review hearing in deciding the appeal from jurisdiction and disposition orders was moot].)
DISCUSSION
I. The Appeal Is Not Moot
The Agency asserts Heather's appeal is moot because the juvenile court has given her custody of the children and terminated jurisdiction over them.
We decide whether an appeal is moot on a case-by-case basis. (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) Typically, when the juvenile court removes any restrictions previously placed on a parent and terminates jurisdiction, an appeal from prior orders regarding jurisdiction or disposition becomes moot because a reversal of the earlier orders would no longer have any practical effect. (Ibid.; see also In re Dani R. (2001) 89 Cal.App.4th 402, 404 [appeal becomes moot when post-appellate events make it such that a reversal would have no practical effect].) However, the appellate court may exercise its discretion to consider the merits of an otherwise moot appeal when the findings at issue could prejudice the appellant in current or future dependency or custody proceedings, among other reasons. (In re Daisy H. (2011) 192 Cal.App.4th 713, 716 & fn. 4 (Daisy H.); In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548; In re M.W. (2015) 238 Cal.App.4th 1444, 1453 (M.W.).)
Here, while the court did give Heather custody of the children, it also issued exit orders regarding John's visitation and expressly noted to the family court that it had made a true finding on the petition. As the petition included allegations that Heather and John had a history of domestic violence, including a violent confrontation in front of the children, and indicated that Heather had failed to protect the children, there is at least some possibility it could be prejudicial to Heather in future dependency or custody proceedings.
The Agency argues that there is no potential for prejudice because, as in In re N.S. (2016) 245 Cal.App.4th 53, it could disclose the facts underlying the petition in any future proceedings even if this court reverses the jurisdictional findings. (Id. at p. 63.) However, unlike the mother in N.S. who had admitted the facts underlying the petition were true, the parents both deny that John hit Heather and that there was a history of domestic violence between them. Thus, reversal of the jurisdictional findings, thereby indicating there was not sufficient evidence that the parents engaged in domestic violence in front of the children or that Heather placed the children at risk by failing to protect them, could have a practical and beneficial effect for Heather as it could positively influence future decisions regarding custody or dependency. Further, we must consider whether substantial evidence supports the jurisdictional findings in any event because John disputes the same findings and the appeal is not moot as to him. Thus, we will address the merits of Heather's appeal as well.
II. Substantial Evidence Supports the Jurisdiction and Disposition Findings
The parents assert there was insufficient evidence to support the juvenile court's findings. We review challenges to the sufficiency of the evidence underlying jurisdictional or dispositional findings for substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) We affirm the orders so long as there is substantial evidence in the record, viewed as a whole, from which a reasonable tier of fact could make the findings in question. (Ibid.; In re Drake M. (2012) 211 Cal.App.4th 754, 763.) We do not reweigh the evidence or consider whether the court could have drawn a different conclusion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The parents bear the burden of demonstrating a lack of sufficiently substantial evidence. (Ibid.)
A. Jurisdictional Findings
The sole issue before the court in making a jurisdictional finding is whether the child, at the time of the hearing, fits one of the statutory descriptions set forth in section 300. (§ 355, subd. (a); In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) The court may assert jurisdiction over a child pursuant section 300, subdivision (b), if the child has suffered, or is at substantial risk of suffering, serious physical harm or illness due to the parent's failure or inability to protect the child. (§ 300, subd. (b).) Evidence of domestic violence between the parents may support jurisdiction if the evidence suggest the violence has harmed the child or placed the child at risk of suffering serious harm, and ongoing domestic violence in the household where the children are living typically presents a substantial risk that the children will encounter violence and suffer serious physical harm. (M.W., supra, 238 Cal.App.4th at pp. 1453-1454.) Once the court establishes jurisdiction over a child pursuant to section 300, subdivision (b), the child remains under that jurisdiction so long as it is necessary to protect him or her from a continued risk of serious physical harm. (§ 300, subd. (b).)
Here, substantial evidence indicates John hit Heather while driving with the children in the vehicle. The altercation upset the children and placed them at an immediate risk of physical harm from an accident. (See In re Giovanni F. (2010) 184 Cal.App.4th 594, 600 [father driving with one hand on the steering wheel while hitting and choking mother placed child passenger at risk of suffering serious physical harm].) Although the parents asserted at the hearing that John did not hit Heather but rather swatted her hand away, Heather and all three children had previously reported that John did hit Heather in the face during the incident, and the evidence suggested John exerted influence over Heather and the children to change their stories. Moreover, it was undisputed that John removed his hand from the steering wheel to swat at Heather during the argument, thereby increasing the risk of an accident.
Further, there was substantial evidence indicating the domestic violence was ongoing and likely to continue. Heather reported at least two previous domestic violence incidents during which John pulled her by the hair and slammed her arm in a door. John and Heather assert these previous altercations are not relevant because the record does not indicate when they occurred or whether the children were present; however, these other incidents nonetheless established that the most recent episode was not an isolated occurrence. Further, Heather's mother reported significant ongoing conflict between John and Heather, that she had heard John yelling "like a monster" during fights with Heather, and that she was concerned for Heather's safety and the wellbeing of the children. Finally, Julian's principal and teacher indicated John had exhibited controlling behaviors and at least one of the children said John had told him not to discuss family matters with others, suggesting John had exerted pressure on Heather and the children not to disclose the extent of the domestic violence in the home.
Heather and John rely on M.W., supra, 238 Cal.App.4th 1444 and Daisy H., supra, 192 Cal.App.4th 713, to assert the foregoing evidence is not sufficient, but those cases are distinguishable. In M.W., the court determined a single occurrence of domestic violence approximately seven years earlier was not sufficient evidence to establish an ongoing risk of harm where there was no evidence of continued violence. (M.W., at pp. 1454-1455.) Likewise, in Daisy H., a single incident of domestic violence occurring at least two, and probably seven, years prior to the juvenile proceedings was insufficient to establish jurisdiction where the parents had since separated and there was no indication the children were exposed to violence. (Daisy H., at p. 717.) Here, the most recent episode occurred within a month of the Agency filing the petitions, the record indicated John and Heather had been arguing recently and had a history of domestic violence, and they were still living together at the time of the trial.
In re J.N., supra, 181 Cal.App.4th 1010, in which the court found a single isolated incident of excessive alcohol use where there was no indication the parents had an ongoing substance abuse problem was not sufficient to support jurisdiction, is likewise distinguishable.
Finally, Heather and John argue that any risk created by the domestic violence had been removed by the time the court exerted jurisdiction. We disagree. Although Heather called the police to report the fight in the car, she only did so later in the evening when the argument continued and John threatened to leave her and the children. Thereafter, she repeatedly denied the seriousness of the altercation and refused to separate from John or get a restraining order to protect herself and the children. We recognize, as the juvenile court did, that Heather had begun to address the history of domestic violence through counseling and education, but the social worker testified that Heather was still minimizing the associated risk to the children and had not yet developed the skills and tools necessary to protect them. (See In re Cole C. (2009) 174 Cal.App.4th 900, 918 [juvenile court may give the social worker's opinion significant weight].)
Substantial evidence supports the juvenile court's conclusion that the children remained at risk.
B. Findings Supporting Removal
To remove a child from parental custody, the court must find the child is at substantial risk of harm and "there are no reasonable means by which the minor's physical health can be protected" absent removal. (§ 361, subdivision (c)(1).) Although the juvenile court must make these findings by clear and convincing evidence, our review on appeal remains subject to the substantial evidence standard. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; see also In re Angelique C. (2003) 113 Cal. App. 4th 509, 519; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
John contends he and Heather learned from their mistakes and by the time of the dispositional hearing the children were no longer at risk of harm, but the evidence discussed ante supporting the jurisdictional findings also supports the findings that the children were subject to removal due to an ongoing substantial risk of harm. The evidence, including the testimony of the social worker, indicated Heather was still minimizing the domestic violence in the home and neither parent had made sufficient progress on their case plans to remove the risk that the children would be harmed as a result.
John also argues the court could have granted Heather sole custody of the children and limited John's contact with them, and that doing so would have been a reasonable alternative to protect the children without removing them from Heather's custody. However, the juvenile court specifically considered this possibility and declined to implement it based on concerns that John was controlling, that Heather had not yet gained the understanding and tools necessary for her to protect herself and the children and that, therefore, the children would remain at high risk of harm if placed with Heather at the time of the hearing. Substantial evidence in the Agency's reports and testimony at trial supports the court's conclusion in that regard as well. In any event, as the children have since been returned to Heather's custody after she demonstrated significant progress on her case plan, a reversal of the order removing the children from her would have no practical effect.
Substantial evidence supports the juvenile court's findings regarding jurisdiction and removal.
DISPOSITION
The orders are affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.