Opinion
B323249
10-31-2023
In re Ke.I. et al., Persons Coming Under the Juvenile Court Law. v. C.I., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP04365, Pete R. Navarro, Judge Pro Tempore. Affirmed in part and dismissed in part.
Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
This appeal arises out of dependency proceedings relating to three-year-old Ke.I. and two-year-old Ko.I., the children of C.I. (father) and M.P. (mother). Father contends the juvenile court erred by exercising jurisdiction over the children based on the parents' unresolved domestic violence issues, and by removing the children from his custody.
Ke.I. and Ko.I. have two older maternal half-siblings, D.D. and Ki.D. Although Ki.D was a subject of the underlying dependency proceedings, D.D. was not. This appeal pertains only to Ke.I. and Ko.I., and does not relate to Ki.D. In addition, mother and Ki.D.'s father are not parties to this appeal.
The parties are familiar with the facts and procedural history of the case, so we do not fully restate those details here. Instead, in the Discussion, post, we discuss the facts as needed to provide context for and resolve the issues presented on appeal. For the reasons discussed below, we affirm the juvenile court's jurisdictional finding. We dismiss as moot the portion of the appeal relating to the removal order.
DISCUSSION
I. The jurisdictional finding is supported by substantial evidence.
A. Relevant Background
This is the second dependency case involving the family. The previous case arose out of a referral received in July 2020. In that case, the juvenile court sustained the Welfare and Institutions Code section 300 petition filed by the Department of Children and Family Services (Department) on behalf of Ke.I. and his half-siblings in August 2020. Among other counts, the juvenile court sustained count b-2, which alleged Ke.I. was at risk of serious physical harm due to the parents' history of engaging in violent altercations. In so doing, the court found true the following allegations: (1) in April 2020, while mother was eight months pregnant with Ke.I., father grabbed her, elbowed her in the abdomen, pushed her over a table, and choked her, causing her to be unable to breathe; (2) in August 2019, father threw a backpack at mother in the presence of Ke.I.'s half-sibling; and (3) father has a criminal conviction of battery on a spouse.
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court removed Ke.I. from his parents and granted them reunification services. In addition to other services, father was directed to participate in a 52-week domestic violence program, an anger management program, a developmentally appropriate parenting program, and individual counseling to address case issues, domestic violence, anger management, and child safety. Similarly, mother's court-ordered case plan required her to participate in, among other services, a domestic violence support group for victims, an anger management program, and individual counseling to address case issues, domestic violence, anger management, and child safety. Subsequently, on December 8, 2021, the juvenile court found the parents had complied with their case plans and, consequently, terminated jurisdiction.
On March 21, 2022, not even four months after the closure of the prior case, the Department received the referral giving rise to this case. According to the reporting party, the children's paternal uncle stated the parents had engaged in an altercation in the children's presence, during which mother "kicked . . . father and was beating on him." (Italics omitted.) Following an investigation, the Department filed a section 300 petition on behalf of Ke.I. and Ko.I.
At the adjudication and disposition hearing held in August 2022, the juvenile court sustained count b-1 asserted in the operative petition. It found true the following allegations, among others: (1) in March 2022, the parents "engaged in domestic violence causing . . . father to bleed, in the presence of the children"; (2) on prior occasions, "mother placed . . . father in a headlock/chokehold," pulled his hair, and struck him; (3) on a prior occasion, father struck mother; (4) father "has a criminal history of a conviction of Battery/Spousal Battery"; and (5) Ke.I. was a prior dependent of the court due to domestic violence between the parents. The court then declared the children dependents of the court under section 300, subdivision (b), and removed them from their parents.
B. Governing Principles and Standard of Review
At the time the petition was adjudicated in this case, section 300, subdivision (b)(1), provided that the juvenile court may exercise jurisdiction over a child if it finds "[t]he 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 the child's parent . . . to adequately supervise or protect the child ...."
"'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 (J.N.).) In deciding whether the child is at risk of harm, the court may consider past events, as "[a] parent's past conduct is a good predictor of future behavior." (In re T.V. (2013) 217 Cal.App.4th 126, 133.) To establish a risk of harm at the time of the adjudication hearing, however, "[t]here must be some reason beyond mere speculation to believe the alleged conduct will recur." (In re James R. (2009) 176 Cal.App.4th 129, 136.)
We review jurisdictional findings for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) Under this standard, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders." (Ibid.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "Substantial evidence must be of ponderable legal significance. It is not synonymous with 'any' evidence. [Citation.] The evidence must be reasonable in nature, credible, and of solid value." (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order." (Ibid.) "' . . . "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record."'" (In re Yolanda L., supra, 7 Cal.App.5th at p. 992.)
C. Analysis
Father does not dispute that, in March 2022, the parents engaged in a physical altercation in the children's presence, during which mother hit him. Instead, he contends jurisdiction was unwarranted under section 300, subdivision (b), because the evidence did not demonstrate the children were at risk of harm at the time of the adjudication hearing. In so doing, he relies on J.N., supra, 181 Cal.App.4th 1010, to assert the March 2022 incident was "a single incident of bad judgment" and does not show his domestic violence issues remain unresolved, as he was not the aggressor in the altercation. He also contends domestic violence between the parents will not recur in the future because: (1) they no longer live with paternal relatives, and therefore had addressed the source of stress and conflict giving rise to the March 2022 incident; and (2) the parents voluntarily participated in services prior to disposition. As discussed below, we do not agree with his arguments.
J.N. does not assist father in showing reversible error because it is distinguishable on its facts. There, shortly after both parents had consumed several beers during dinner at a restaurant, the father tried to drive the family back home in their minivan. (J.N., supra, 181 Cal.App.4th at pp. 1015, 1017-1018.) On the way, he crashed into another car. (Id. at p. 1017.) Then, while driving away from the scene of the first accident, the father lost control of the vehicle and crashed into a signal light pole. (Ibid.) Two of the three children were injured in the accident. (Ibid.) The juvenile court exercised jurisdiction over the children under section 300, subdivision (b). (Id. at p. 1021.) "Although it recognized that there was no pattern of past risk," the court determined the severity of the incident giving rise to the case warranted the exercise of jurisdiction. (Ibid.)
The appellate court reversed the jurisdictional finding. (J.N., supra, 181 Cal.App.4th at p. 1014.) It noted the case arose out of a "single episode of parental conduct," and held that "[d]espite the profound seriousness of the parents' endangering conduct[,] . . . there was no evidence from which to infer there is a substantial risk such behavior will recur." (Id. at pp. 1022, 1026.) Specifically, the appellate court observed the evidence did not demonstrate the parents consumed alcohol on a regular basis or otherwise had a substance abuse problem. (Id. at p. 1026.) Nor did the record reflect "either parent's parenting skills, general judgment, or understanding of the risks of inappropriate alcohol use is so materially deficient that the parent is unable 'to adequately supervise or protect' the children." (Ibid.) Instead, it showed "both parents were remorseful, loving, and indicated that they were willing to learn from their mistakes." (Ibid.)
In contrast with J.N., this case did not arise out of a single, isolated incident of endangering conduct by the parents. (Cf. J.N., supra, 181 Cal.App.4th at p. 1019 [noting the family had no prior child protective services referrals].) As noted above, before this case was initiated, the juvenile court sustained a petition alleging the parents had placed Ke.I. at risk of harm due to their history of engaging in violent altercations, including two separate altercations occurring in August 2019 and April 2020. The parents then participated in numerous services to address their domestic violence issues, resulting in the termination of jurisdiction in December 2021. Less than four months later, however, the parents engaged in another physical altercation in the children's presence.
Shortly thereafter and, again, unlike the parents in J.N., who were cooperative with the social services agency from the start (cf. J.N., supra, 181 Cal.App.4th at pp. 1017-1018), mother and father refused to speak to the police officer or the Department social worker investigating the referral of abuse. In her initial e-mail to the social worker, mother stated she and father were "clueless as to why [they] are, again, being harassed by [the Department]." In her next e-mail, mother reiterated she was "still dumbfounded as to what exactly [was] going on[.]" Then, on April 16, 2022, three days after the Department and the police served an investigative warrant on the family, mother absconded with the children to Texas. She returned to California and began cooperating only after learning the Department had filed a section 300 petition on the children's behalf, and that the juvenile court had ordered the children detained at-large.
On this record, the juvenile court could reasonably conclude that despite their prior completion of services, the parents still have not resolved their domestic violence issues. Thus, the juvenile court could appropriately infer that, while the parents may have addressed the primary stressor giving rise to the March 2022 incident, domestic violence likely would recur because the parents were still living together and may resort to violence during subsequent arguments arising from other stressors. In addition, based on the facts discussed above, the juvenile court could properly conclude the risk of harm remained despite the parents' participation in services following the children's detention. (See In re Nathan E. (2021) 61 Cal.App.5th 114, 117, 123-124 [affirming jurisdictional finding where domestic violence between the parents persisted even though the mother had completed a 52-week domestic violence course].)
Our conclusion is unaffected by the fact that father was not the aggressor in the parents' most recent altercation. As noted above, the record reflects father has been violent with mother on multiple occasions within the last four years. And, it is well-settled that a child's mere "[e]xposure to domestic violence may serve as the basis of a jurisdictional finding under section 300, subdivision (b)." (In re R.C. (2012) 210 Cal.App.4th 930, 941.) This is because, regardless of which parent is the aggressor in a given incident, "domestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A. (1996) 52 Cal.App.4th 183, 194, original italics.) "Children can be 'put in a position of physical danger from [spousal] violence' because, 'for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, [or] by a fist, arm, foot or leg .... '" (In re E.B. (2010) 184 Cal.App.4th 568, 576, disapproved of on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010 fn. 7.)
In sum, for the reasons discussed above, the record contains substantial evidence to support a finding that, at the time of the adjudication hearing, the children were at serious risk of physical harm due to the parents' unresolved domestic violence issues. The juvenile court therefore did not err by finding the children fell within the purview of section 300, subdivision (b).
II. Father's challenges to the removal order are dismissed as moot.
A. Governing Principles
"A case becomes moot when events '"render[ ] it impossible for [a] court, if it should decide the case in favor of [the party seeking redress], to grant him [or her] any effect[ive] relief."' [Citation.] For relief to be 'effective,' two requirements must be met. First, the [party] must complain of an ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the [party] seeks. [Citation.] [¶] This rule applies in the dependency context. [Citation.] A reviewing court must '"decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether [its] decision would affect the outcome in a subsequent proceeding."'" (In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).)
"Even when a case is moot, courts may exercise their 'inherent discretion' to reach the merits of the dispute. [Citation.] As a rule, courts will generally exercise their discretion to review a moot case when 'the case presents an issue of broad public interest that is likely to recur,' 'when there may be a recurrence of the controversy between the parties,' or 'when a material question remains for the court's determination.'" (D.P., supra, 15 Cal.5th at p. 282.) Specific to the dependency context, our Supreme Court has held that courts should consider the following factors when deciding whether to review a moot appeal: (1) whether the challenged order "'could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings,' or '"could have other consequences for [the appellant][ ]"'" (id. at p. 285); (2) whether the order was "based on particularly pernicious or stigmatizing conduct[ ]" (id. at pp. 285-586); and (3) "why the appeal became moot." (Id. at p. 286.) "The factors above are not exhaustive, and no single factor is necessarily dispositive of whether a court should exercise discretionary review of a moot appeal." (Ibid.)
B. Analysis
As noted above, father challenges the August 2022 order removing the children from his custody. In February 2023, however, the juvenile court returned the children to their parents. Under these circumstances, we conclude reversal of the removal order will not "'have a practical, tangible impact on [father's] conduct or legal status.'" (D.P., supra, 14 Cal.5th at p. 277.) Consequently, father's challenge to the removal order is moot. (Ibid.) In so concluding, we acknowledge that father contends this portion of the appeal is not moot because, unless the removal order is reversed, he will be deprived of time to which he would otherwise be entitled to participate in reunification services "should [the Department] seek removal again by way of a supplemental petition pursuant to section 387." (See § 361.5, subd. (a)(1)(B) ["For a child who, on the date of initial removal from the physical custody of the child's parent . . ., was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing . . ., but no longer than 12 months from the date the child entered foster care . . . unless the child is returned to the home of the parent or guardian."].) We reject this argument because it rests entirely on the possibility of "speculative future harm," which is insufficient to avoid mootness. (D.P., supra, 14 Cal.5th at p. 278.)
Having concluded father's challenge to the removal order is moot, we consider whether to exercise discretionary review. Father does not argue or otherwise explain how the factors set forth in D.P. weigh in favor of exercising discretionary review. In any event, having examined and balanced the pertinent considerations, we decline to exercise our discretion to consider the merits of the moot portion of this appeal. (See D.P., supra, 14 Cal.5th at p. 287 ["A reviewing court must decide on a case-by-case basis whether it is appropriate to exercise discretionary review to reach the merits of a moot appeal, keeping in mind the broad principles and nonexhaustive factors discussed" by our Supreme Court in D.P.].)
DISPOSITION
The jurisdictional finding is affirmed. The portion of the appeal challenging the removal order is dismissed as moot.
We concur: MORI, J., ZUKIN, J.