Opinion
B325634
03-25-2024
In re N.W. et al., Persons Coming Under the Juvenile Court Law. v. C.W. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant D.T. James W. Haworth, under appointment by the Court of Appeal, for Defendant and Appellant C.W. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County, No. 18LJJP00761 Donald A. Buddle, Jr., Judge.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant D.T.
James W. Haworth, under appointment by the Court of Appeal, for Defendant and Appellant C.W.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
ENDIX, J.
D.T. (mother) appeals from the juvenile court's assertion of jurisdiction over her five children. Mother contends there was no evidence the children were at risk at the time of the jurisdictional hearing.
C.W., father of N.W., the youngest of the five children, also appeals from the juvenile court's jurisdictional and dispositional orders regarding N.W. C.W. contends respondent Los Angeles County Department of Children and Family Services (DCFS) failed to investigate, and the juvenile court failed to determine, whether N.W. is an Indian child as required under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and its corresponding provisions under California law (see Welf. &Inst. Code, § 224 et seq.).
Further unspecified statutory citations are to the Welfare and Institutions Code.
We conclude substantial evidence supports assertion of jurisdiction in this case. As for C.W.'s appeal, the juvenile court has since returned N.W. to mother's care, thus mooting his ICWA challenge. Accordingly, we affirm the jurisdictional and dispositional orders, and dismiss C.W.'s appeal.
BACKGROUND
1. Underlying facts
The children at issue in this case were interviewed several times, including by a social worker, a dependency investigator, and a sheriff's deputy. The children's descriptions of events varied to some degree from child to child and from interview to interview. During the proceedings, mother challenged the credibility of the oldest child, M.H, in particular. Our review is for substantial evidence and therefore in summarizing the evidence provided by the children, we resolve all conflicts in favor of the judgment and construe the record in the light most favorable to the court's determinations. (See In re S.R. (2020) 48 Cal.App.5th 204, 219; In re Austin J. (2020) 47 Cal.App.5th 870, 885 (Austin J.).) Our summary combines information from various sources, including the detention report and the jurisdiction and disposition report, and is not presented in the order the information is presented in the record.
Mother has five children: M.H., born 2007; J.T., born 2010; twins N.T. and O.T., born 2013; and N.W., born 2022.
C.W. is N.W.'s father. The other children's fathers are not party to this appeal. M.H.'s father is R.H. J.T.'s father is J.T., Sr. Both live out of state. N.T.'s and O.T.'s father is D.K. His whereabouts are unknown.
The family has prior child welfare history. In October 2018, the children were removed from mother based on allegations that she was neglecting M.H.'s medical needs (M.H. has spina bifida), and that mother was suffering from mental illness and was abusing marijuana. In April 2019, the petition was dismissed and the children returned to mother's care.
The record is not clear that the dismissed petition pertained to the October 2018 referral, but given the timing of events we so infer for purposes of this appeal.
In May 2019, another referral alleging neglect by mother was found inconclusive.
Mother had an open domestic violence case in another jurisdiction involving J.T.'s father, J.T., Sr. M.H. and J.T. previously had been removed from mother and J.T., Sr.
On May 24 and 26, 2022, DCFS received the referrals that initiated the instant proceedings. The referrals alleged C.W. had physically abused the children. DCFS then investigated.
M.H. reported mother disciplined her by hitting her with a leather belt hard enough to leave bruises. The last time had been in April 2022. Mother once slapped her in the face. M.H. further reported mother hit N.T. with a belt, the last time being around February 2022.
M.H. reported C.W. also disciplined the children with a belt. M.H. said C.W. was constantly drunk.
M.H. stated that in February 2022, C.W. hit N.T. on the head with his fist. When M.H. asked why C.W. had hit N.T., C.W. punched M.H. in the face, grabbed her hair, and slammed her against the wall. On another occasion in February 2022, C.W. burst into the bathroom, threw M.H. into the shower, and punched her several times in the face and stomach, leaving her teeth numb and her mouth bleeding. M.H. further reported C.W. once punched J.T. in the back.
M.H. said on one occasion C.W. pulled out mother's hair, and on another occasion punched mother in the stomach while she was pregnant with N.W.
J.T. reported C.W. had issues with alcohol and would hit the children. J.T. said mother had hit him and his siblings with a belt, although he refused to give more specific information.
O.T. reported C.W. drank alcohol to the point that mother had to call the police. C.W. punched mother in the head and stomach when she was pregnant with N.W. O.T. further reported C.W. had hit her and N.T. on the head and had grabbed M.H. by the head. The last time C.W. had struck the children was on May 26, 2022. O.T. also described an incident in which C.W. struck M.H. on the back, slapped mother on the cheek, and tried to hit the other children. Mother and the children locked themselves into one of the bedrooms and C.W. kicked down the door.
N.T. reported he would be disciplined with a belt sufficient to leave bruises, although the record does not specify who disciplined him. He said C.W. had a drinking problem and would act crazy, including hitting N.T. and his siblings with a closed fist. On May 26, 2022, N.T. dropped a ketchup bottle and C.W. punched him in the head. In September of the previous year, C.W. tried to choke N.T. by pulling on his shirt. N.T. said in December of the previous year, C.W. punched M.H. twice and threw her against a wall.
N.T. and O.T. both reported that in May 2022, C.W. hit N.T. on the back of the head and grabbed his arm, leaving bleeding marks on N.T.'s arm from C.W.'s fingernails. A sheriff's deputy confirmed seeing the fingernail marks, and a photograph of the injury was included in the record.
Mother admitted C.W. had an alcohol problem but denied he had harmed the children or that there was any physical abuse in the home. She denied C.W. was living in the home. Mother said she sometimes hit N.T. on the hand with her hand or with a rubber ruler, but not hard enough to leave marks or bruises. Mother said C.W. had "whooped" N.T. with a belt but had not left marks. She said J.T. had been hit with a belt on his leg. Mother denied C.W. had ever hit her in the face or stomach.
Although mother denied C.W. was living in the home, he was present in the home at the time the social worker first arrived to interview the family. C.W. said he and mother sometimes popped the children on the bottom with a belt. He denied hitting the children on the head or any domestic violence between him and mother. He admitted he had an alcohol problem.
A sheriff's deputy who spoke to the children following the May 24 and 26 referrals reported all the children had told the deputy C.W. was living at the home, contrary to mother's assertions. Based on the children's reports, C.W. was charged with physical abuse of a child. The incident report, which includes much of the information summarized above, is in the record.
C.W.'s probation officer stated C.W. was on probation for a domestic violence incident, and his presence in the home was in violation of a restraining order. The probation officer had warned mother not to continue violating the restraining order by allowing C.W. into the home, but mother continued to allow C.W. "full access to her and the other children."
A sheriff's department incident report from June 30, 2021 indicated mother had called 911 stating she was being attacked. A male voice was yelling in the background. When deputies arrived, mother and C.W. were in front of the home yelling at each other. Mother told the deputies C.W. was not supposed to be there. She reported he had pulled her hair, pushed her, and punched out the windows in her car. Deputies arrested C.W. after he yelled at them and threatened to punch one of them in the face. The record includes a transcript of mother's 911 call, in which mother states C.W. is drunk and out of control, and C.W. can be heard threatening to hit someone.
Another incident report from March 2022 stated C.W. was found intoxicated and knocking on the door of one of mother's neighbors. Deputies determined C.W. was on probation for domestic violence and was in violation of the protective order barring him from being within a certain distance of mother's home. The record includes a transcript of the 911 call.
2. Dependency petition, detention, and adjudication
DCFS filed a dependency petition seeking to detain all five children, alleging bases for jurisdiction under section 300, subdivisions (a), (b)(1), and (j). The petition alleged the following: Mother physically abused M.H. and N.T. with a belt, which also placed the other children at risk; C.W. physically abused M.H., J.T., N.T., and O.T., including by striking the children with belts and fists, throwing M.H. against the wall, choking N.T., and digging his nails into N.T.'s arm, which placed the other children at risk as well; mother and C.W. engaged in violent altercations in the presence of the children, and mother had failed to comply with a criminal protective order protecting her from C.W.; C.W. had a history of substance abuse and was a current abuser of alcohol; and mother suffered from mental and emotional problems. The petition further alleged mother had failed to protect the children from C.W.'s physical abuse, alcohol abuse, and domestic violence.
The petition originally included failure-to-protect allegations against M.H.'s father R.H. and J.T.'s father, J.T., Sr., but these allegations were deleted by interlineation or dismissed by the juvenile court.
The juvenile court ordered the children detained from mother and C.W. The court released M.H. to her father R.H. The other children were placed in foster homes.
In August 2022, after the children had been detained, a sheriff's department incident report indicated mother had come home to find C.W. there. As she was calling law enforcement to remove him, he kicked her in the back of the leg. Mother told the deputies she had left a box of C.W.'s belongings inside her home for him to collect while she was not there, but he had not left by the time she returned. The deputies determined he was intoxicated. As a result of this incident, C.W. was incarcerated.
In advance of the jurisdiction hearing, mother completed a parenting course and was in the process of completing a domestic violence course.
Mother testified at the jurisdiction hearing on September 28, 2022. She admitted to having struck M.H. on the hand with a rubber ruler in the past, but had not done so for several years. Mother stated she had since learned a different way to resolve her issues with M.H. She denied spanking M.H. in April 2022. Mother also admitted to hitting N.T. on the hand with a ruler, the last time being about a year earlier.
Mother testified that when she realized how much C.W. was drinking, she asked him to move out and he did. C.W. later was arrested when he came to her house and broke the windows in her car. Upon his release after six or seven months, she resumed her relationship with him and allowed him in the home despite the criminal protective order prohibiting it. At that time, mother believed it would be safe to let C.W. in because he was attending an alcohol treatment center. Mother testified that in retrospect, she should have complied with the protective order.
When father resumed his alcoholic lifestyle, mother asked him to leave in November 2021 and he did. She allowed him in the house just to visit his daughter N.W. She said he was never alone with the children. Mother said father would show up uninvited to the home approximately once a month, and mother would call law enforcement. Mother testified she did not intend to resume her relationship with C.W. and would comply with the restraining order.
Mother admitted C.W. had spanked J.T. and N.T. in the past. She said he would spank them with a belt over their clothes, two to three hits for N.T. and three to four hits for J.T. This happened perhaps once a month, but C.W. had not spanked them since sometime the previous year. Mother explained C.W. stopped the spankings at her request, after she had learned about "gentle parenting" from her therapist.
Mother admitted C.W. had grabbed N.T. by the arm to stop him from walking away. Mother said she stepped in and told C.W. not to hold N.T. like that.
Mother testified C.W. never got physical with her except in August 2022 when he kicked her in the leg. C.W. would break car windows or punch holes in the walls and cabinets. When he did this, mother would leave the home with the children. Mother denied C.W. had pulled her hair or shirt.
Mother said she was in group and individual therapy to address posttraumatic stress disorder. She described what she had learned in her domestic violence classes, including the impact domestic violence has on children. She had learned better discipline practices from her parenting course.
On September 29, 2022, following argument, the juvenile court sustained all allegations in the petition against mother and C.W. except the allegations concerning mother's mental and emotional problems, which allegations the court dismissed without prejudice.
For disposition, the juvenile court granted M.H.'s father R.H. sole physical custody and mother and R.H. joint legal custody of M.H., and terminated jurisdiction over M.H. pending receipt of a juvenile custody order. The court ordered J.T. removed from mother and J.T., Sr., but granted DCFS discretion to liberalize visitation up to and including release of J.T. back to parents. The court ordered removal of N.T. and O.T. from mother, and removal of N.W. from mother and C.W., and ordered visitation and reunification services.
The juvenile court also granted mother's request for a three-year restraining order against C.W.
Mother and C.W. timely appealed. In June 2023, while the appeals were pending, the juvenile court terminated the suitable placement orders for J.T., N.T., O.T., and N.W. and returned J.T. to home of parents and N.T., O.T., and N.W. to home of mother. In November 2023, the juvenile court terminated jurisdiction over J.T. and granted mother and J.T., Sr. joint physical and legal custody.
We grant DCFS's request to take judicial notice of the postjudgment minute orders. (Evid. Code, §§ 452, subd. (a), 459.)
DISCUSSION
A. Mother Asserts Challenges to All Bases of Jurisdiction, Thus Surviving DCFS's Motion To Dismiss Her Appeal
DCFS has filed a motion to dismiss mother's appeal. DCFS contends mother did not challenge below, nor does she now challenge on appeal, all allegations in the section 300 petition, specifically the allegations relating to C.W.'s conduct and mother's failure to protect the children from C.W.'s alcohol abuse. Courts have held that if a parent on appeal fails to challenge all bases of jurisdiction, the reviewing court need not reach the challenges the parent does raise. (See, e.g., In re Ashley B. (2011) 202 Cal.App.4th 968, 979 ["As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate."].)
We disagree with DCFS's characterization of mother's appeal. As we discuss post, mother argues jurisdiction was not proper because the children no longer were at risk of harm at the time of the jurisdiction hearing, from either her or C.W. This is a broad challenge that encompasses all of the juvenile court's jurisdictional findings. We therefore deny DCFS's motion to dismiss mother's appeal, and proceed to the address mother's appeal on the merits.
B. The Juvenile Court's Jurisdictional Findings Are Supported by Substantial Evidence of Risk of Harm to the Children at the Time of the Hearing
" 'In reviewing the jurisdictional findings . . ., we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] 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.' [Citations.]" (In re R.T. (2017) 3 Cal.5th 622, 633.)
Mother argues the juvenile court was not entitled to take jurisdiction over the children absent substantial evidence that the children were at risk at the time of the jurisdiction hearing. Mother argues there was no evidence of risk at that time, because C.W. "no longer lived in or frequented the family residence and the [juvenile] court had issued a stay-away order." Mother further argues she no longer posed a risk of physically abusing the children because "the last time any child reported being struck was five months in the past," and "[s]ince that time Mother had participated in a parenting class, had almost completed a domestic violence class, and was engaged in mental health therapy. She had learned there were better ways to communicate with and discipline her children."
Mother is correct that failure-to-protect allegations under section 300, subdivision (b)(1) require proof that "circumstances at the time of the jurisdictional hearing' "subject the minor to the defined risk of harm."' [Citation.]" (In re L.B. (2023) 88 Cal.App.5th 402, 411, italics added.) Mother cites no similar authority regarding allegations under section 300, subdivisions (a) or (j). We will assume arguendo, however, that all jurisdictional allegations must be based on evidence of current risk at the time of the jurisdiction hearing.
We conclude there was substantial evidence supporting a finding of current risk to the children. C.W.'s absence from the family home, and the existence of the protective order, were small assurance given mother's history of letting C.W. into the home despite previous protective orders. Indeed, in August 2022, only a month before the jurisdiction hearing, mother again invited C.W. to come to the home to collect his belongings, leading to another domestic violence incident in which C.W. kicked her and law enforcement had to intervene. Although mother told law enforcement her intention was not to be present when C.W. came for his belongings, the juvenile court fairly could infer that allowing C.W. into the home in any capacity showed poor judgment and an unwillingness to comply with protective orders. Nor was the juvenile court obliged to accept mother's assurances at the jurisdiction hearing that her relationship with C.W. was over and she would abide by the protective order in the future.
As for mother's own abuse of the children, as mother concedes, the last reported incident occurred a mere month before the children were removed from her custody. Although mother describes the incident as five months in the past at the time of the jurisdiction hearing, the children were not with her for four of those months, so mother cannot be credited for not physically disciplining them during that period. Mother cites no authority that completion of a parenting course and partial completion of a domestic violence course compel the conclusion the children no longer were at risk from mother. Even if arguendo mother posed no threat of abusing her children in the future, the concerns about her inability to protect them from C.W. justified assertion of jurisdiction.
C. C.W.'s Appeal Is Moot
C.W. argues DCFS failed to conduct an inquiry as to whether N.W. is an Indian child under ICWA and state law implementing it, and the juvenile court made no ICWA findings as to N.W. DCFS moves to dismiss C.W.'s appeal as moot, contending ICWA no longer applies because the juvenile court returned N.W. to mother's care.
We grant DCFS's motion to dismiss C.W.'s appeal. As we held in Austin J., supra, 47 Cal.App.5th 870, when the juvenile court terminates a foster care placement order and returns the child to the custody of a parent, "the relief that ICWA could provide," namely "invalidation of the foster care placement order," "is no longer available." (Id. at p., 881 fn. 5.) Under that circumstance, the ICWA challenge is rendered moot. (Ibid.)
We acknowledge we have the discretion to consider the merits of C.W.'s challenge despite its mootness, discretion we chose to exercise in Austin J. (Supra, 47 Cal.App.5th at p. 881, fn. 5.) We decline to exercise that discretion here.
C.W. asks us to reconsider Austin J., citing In re Jennifer A. (2002) 103 Cal.App.4th 692, which held an ICWA violation was not harmless merely because the juvenile court placed the child in her father's custody. (Jennifer A., at pp. 700701.) We decline to reconsider Austin J. ICWA by its terms allows a challenge to "any action for foster care placement or termination of parental rights." (25 U.S.C. 1914.) The instant action no longer involves foster care placement and DCFS has not sought to terminate C.W.'s parental rights. ICWA therefore provides no basis to reverse the orders at issue. We express no opinion as to the obligations of the juvenile court and DCFS under ICWA should circumstances change.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed. C.W.'s appeal is dismissed as moot.
We concur: ROTHSCHILD, P. J. CHANEY, J.