Opinion
B323868
03-25-2024
In re D.C., a Person Coming Under the Juvenile Court Law. v. DWIGHT C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 22LJJP00362A Donald A. Buddle, Jr., Judge. Affirmed.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
Dwight C. (father) appeals from the juvenile court's orders asserting jurisdiction over his son, now five-year-old D.C. (the child), and removing the child from his custody. He contends that substantial evidence did not support the court's orders. We affirm.
The Department of Children and Family Services (Department) argues we should dismiss father's appeal as moot because, during the pendency of the appeal, the court issued orders returning the child to mother's physical custody, granting mother and father joint legal custody, and terminating jurisdiction. (In re Rashad D. (2021) 63 Cal.App.5th 156, 163 ["An order terminating juvenile court jurisdiction generally renders an appeal from an earlier order moot"].) Father responds that the Department's argument is premature because the order terminating jurisdiction is not final. (In re Carrie M. (2001) 90 Cal.App.4th 530, 533 ["An order is final when the time for appeal has expired and no timely appeal has been filed or the order has been appealed and affirmed"].) Even if the appeal were otherwise moot, for father's benefit, we explain why his appeal is without merit. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
II. BACKGROUND
A. The Welfare and Institutions Code Section 300 Petition
All further statutory references are to the Welfare and Institutions Code.
On August 25, 2022, the Department filed a section 300 petition that alleged, as later amended and sustained, the following:
"b-1 [¶] On 07/24/2022, . . . father . . violently attacked . . .mother . . . of the child in the presence of the child. [F]ather repeatedly struck . . . mother's head with . . . father's hand. [M]other declined an emergency protective order [(EPO)], failed to seek a temporary or permanent restraining order and advised the District Attorney's office that she did not want it to pursue criminal charges against . . . father. The violent conduct by . . . father and . . . mother's failure to protect the child endangers the child's physical health and safety, creates a detrimental home environment, and places the child at risk of serious physical harm, damage and danger.
Mother, S.A., is not a party to the appeal.
"b-2 [¶] On 08/23/2022, the 3-year-old child['s] . . . mother . . . created a detrimental and endangering situation for the child in that . . . mother left the child home alone, for over 2 hours, with no adult care or supervision. The child was found wandering the streets alone without adult supervision. Such a detrimental and endangering situation created by . . . mother endangers the child's physical health and safety and places the child at risk of serious physical harm, damage, danger and neglect."
B. The Detention Report and Hearing
On July 25, 2022, a social worker spoke with mother about a reported domestic violence incident with father the previous evening while the child was in the home. Mother stated that "on the night of the incident it had escalated." She told father he would be homeless. Mother said she "'instantly regretted it and he just came at me physically, he hit me over the head and I went to the room where he reached over and continued to hit me, he jolted my arm somehow and that's where I felt the hit. I got so scared and all I could do was continue to yell "the baby" so then he left the apartment.'"
Mother called her grandmother and law enforcement. She declined an EPO "as it was not fully explained to her." Mother believed the EPO would immediately take away father's parental rights, and it was the first and only domestic violence incident between them "that [went] beyond normal and verbal." Also, because she and father had decided to separate, she did not feel the need to get an EPO. Father was not residing in the home, had not returned since the incident, and communicated with mother only by phone. Mother did not know where father was, only that he was "'far away.'"
On August 23, 2022, the Department received a referral about a child walking around outside at 5:45 a.m. wearing only a diaper. A Los Angeles County Sheriff's Department (Sheriff's Department) deputy responded to mother's home where he encountered two "transients." They reported they saw the child walk out of a garage alone. The child followed them. They went back to the home, "did not receive a response," and went to another apartment and asked that law enforcement be contacted.
Mother moved from the family home and into another apartment in the same apartment complex where father lived- father continued to live in the apartment where the alleged domestic violence incident occurred.
The deputy walked around the apartment complex and did not see anyone looking for a child. He went to the garage the child was seen exiting, and entered mother's home through the unlocked garage door (the front door also was unlocked). The deputy did not find anyone home. He locked the home and transported the child to the Lancaster station at about 7:30 a.m.
The deputy and the child arrived at the Lancaster station at about 8:00 a.m. At about 8:08 a.m., the Lancaster station received a call from mother reporting that her child was missing. Mother stated she left the child at home to take her father, who was not feeling well, home. Mother stated she contacted the babysitter who was supposed to arrive at the home at 7:00 a.m., and believed the child would be alone for only 15 minutes.
A social worker spoke with the child's babysitter. The babysitter reported that she had worked for the family for two weeks. On the day of the incident, she received a text from mother asking her to arrive at 7:00 a.m., a second text asking her to arrive at 7:45 a.m., and a third text asking her to arrive at 8:15 a.m.-by then, she was already on her way. When the babysitter arrived, mother was at the home. Mother asked the babysitter if the child was with her. When the babysitter said the child was not with her, mother called law enforcement.
A social worker spoke with mother at the sheriff's station. Mother stated she believed she left the home at 6:00 a.m. to take her father home. She arrived back home at 6:45 a.m. Everything appeared normal and all the doors were locked. She called the child's name and he did not respond; she believed he was still asleep.
Mother left home again and went to father's apartment to pick up some items. Father was not home when mother was in his apartment. When she returned home she went to the child's room to check on him. Not finding him there, mother contacted law enforcement. Mother denied ever leaving the child home alone in the past. Mother was arrested for child endangerment.
According to father, mother had a key to his apartment.
At the detention hearing on August 29, 2022, the juvenile court ordered the child detained and ordered monitored visitation for mother and father.
C. The Jurisdiction/Disposition Report and Hearing
On August 29, 2022, the District Attorney filed a charge of misdemeanor child endangerment against mother.
On September 6, 2022, a dependency investigator interviewed father. Father denied any domestic violence between him and mother, stated that there were no criminal charges against him, and would not provide additional information.
According to the Sheriff's Department Incident Report, when sheriff's deputies responded to mother's home on July 24, 2022, mother stated that she and father lived together with their child. Earlier in the day, mother tried to drop off the child with maternal grandmother so mother could work. Maternal grandmother could not watch the child, so mother returned home and asked father to watch the child. Father yelled at mother about their "babysitting situation" and struck mother's head two to three times. The deputy did not notice redness or bruising on mother and she did not complain of pain. The deputy offered mother medical attention, but she declined.
At the September 19, 2022, jurisdiction/disposition hearing, father requested the juvenile court return the child to his custody. He testified he was no longer in a relationship with mother. Their relationship ended "maybe" three months before. On July 24, 2022, he lived with mother. He and mother did not have a domestic dispute or physical altercation on that date. He had never had a physical altercation with mother. He did not know why mother would falsely accuse him of domestic violence.
In 2016, when father and mother were not in a relationship, father was charged with domestic violence. The "criminal court case" was later dismissed. Father explained, "We went to court, and they-she-I guess she didn't show up or something. But I don't know why the case was dismissed."
Minute orders from father's domestic violence case show he was charged with two misdemeanor counts of violating Penal Code section 273.5, subdivision (a) and one misdemeanor count of violating Penal Code sections 242 and 243, subdivision (e)(1). A protective order was issued. During the case, a body attachment was issued for the alleged victim, A.R. On the last day to begin father's trial, father announced ready, the People announced they were unable to proceed, and the trial court granted father's motion to dismiss.
Mother testified that on July 24, 2022, mother and father had a "dispute." Father hit her on the head multiple times. The child was in the apartment, but did not witness father's assault. Mother "den[ied]" a protective order from the responding deputy. When she made her statement to law enforcement on July 24, 2022, she was telling the truth to the best of her ability.
The juvenile court sustained the b-1 count. It found none of father's denials of domestic violence credible. The court found mother credible. It did not believe that "lighting struck twice with respect to the prior incident and this incident." It also found mother failed to protect the child from father's domestic violence, and mother's failure endangered the child.
The juvenile court also sustained the b-2 count. It stated, "[A]ll parents try to figure out when is the best age to leave your child home alone. It certainly isn't three. Especially for a child with special needs and especially considering that it was according to the reports over two hours."
Father and mother testified the child has "special needs." Mother stated he had been diagnosed with a "speech and language disorder," "high energy," and "impulsiveness."
The juvenile court found it was contrary to the child's welfare to return him to his parents. It ordered the parents to participate in family reunification services and ordered mother's and father's visits to be monitored.
III. DISCUSSION
A. The Jurisdiction Order
Father contends the juvenile court's jurisdiction order on the b-1 count was error because there was no substantial evidence of "a current risk of ongoing domestic violence between mother and father"-that is, the child was not at substantial risk of serious physical harm from domestic violence as of the jurisdiction hearing. We disagree.
Because we hold that substantial evidence supports the court's jurisdiction order on the b-1 count, we do not address father's contention that the court's jurisdiction order on the b-2 count is not supported by substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773 ["'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence'"].)
"'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.'" (In re R.T. (2017) 3 Cal.5th 622, 633.)
Under section 300, subdivision (b)(1), a child comes within the jurisdiction of the juvenile court when "[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 . . . [¶] [t]he failure or inability of the child's parent or guardian to adequately supervise or protect the child." "'When the jurisdictional allegations are based solely on risk to the child, that risk must be shown to exist at the time of the jurisdiction finding.' [Citation.] Jurisdiction 'may not be based on a single episode of endangering conduct in the absence of evidence that such conduct is likely to reoccur.' [Citation.]" (In re C.V. (2017) 15 Cal.App.5th 566, 572.)
Initially, father appears to argue the child was not at risk of serious physical harm because he was outside the "zone of danger" when father beat mother. However, the issue at the jurisdiction hearing was not whether the child was at risk during the domestic violence incident on July 22, 2022, but whether a substantial risk of serious physical harm existed as of the September 19, 2022, jurisdiction hearing. (In re Cole L. (2021) 70 Cal.App.5th 591, 607.)
Next, father argues there was no substantial risk of serious physical harm to the child as of the jurisdiction hearing because he and mother no longer lived together and there were no further incidents of domestic violence in the 57 days between the domestic violence incident on July 22, 2022, and the jurisdiction hearing on September 19, 2022.
"'[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [them] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.' [Citation.]" (In re S. O. (2002) 103 Cal.App.4th 453, 460-461.) "Although section 300 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. [Citations.] The court may consider past events in deciding whether a child presently needs the court's protection. [Citations.] A parent's '"[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue.' [Citations.] 'To establish a defined risk of harm at the time of the hearing, there "must be some reason beyond mere speculation to believe the alleged conduct will recur."' [Citation.]" (In re Cole L., supra, 70 Cal.App.5th at pp. 601-602.)
That 57 days passed between father's domestic violence and the jurisdiction hearing is insignificant in light of father's past conduct and the seriousness of his present conduct. Moreover, although father and mother no longer lived together, their lives were still connected-mother lived in the same apartment complex as father, mother had a key to father's apartment, and father and mother had a custody arrangement, before the Department intervened, under which father had custody of the child on Fridays, Saturdays, and Sundays, and mother had custody the rest of the week, ensuring interaction between father and mother.
B. The Disposition Order
Father next contends we should reverse the juvenile court's disposition order removing the child from his custody because the court failed to make required factual findings and the Department failed to show it made reasonable efforts to avoid removal. He further contends substantial evidence does not support the court's removal order.
At the time of the jurisdiction/disposition hearing, the child was placed with his maternal grandmother.
"'At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child.'" (In re D.P. (2020) 44 Cal.App.5th 1058, 1065.)
"'On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence.' ([In re] Ashly F. [(2014)] 225 Cal.App.4th [803,] 809; see Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 ['when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof'].) '"'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.' [Citation.]" [Citation.]' [Citation.]" (In re I.R. (2021) 61 Cal.App.5th 510, 520-521.)
Father argues the juvenile court failed to comply with section 361, subdivision (e) which required the court to state the factual basis for its decision to remove a child from his home. The court complied with subdivision (e) stating that it based its decision to remove the child from father on "the reasons noted and arguments from counsel."
Father suggests the juvenile court's ruling left us to guess as to the arguments on which the court based its removal decision. We need not guess. Only counsel for the child and the Department argued for removal. The child's counsel argued the child should be removed from father based on the "violent altercation" between father and mother and father's failure to take steps to address his violent conduct such as anger management classes or individual counseling. The Department joined the child's counsel's arguments and further argued for removal based on father's refusal to be interviewed so the Department could assess his insight, awareness, and protective capacity.
Father next argues the Department failed to comply with California Rules of Court, rule 5.690(a)(1)(B)(i) which required the Department to discuss the reasonable efforts made to prevent or eliminate removal if it was recommending removing the child from the home. The Department discharged its duty. In the "Child['s] . . . Safety in Home" section of its Jurisdiction/Disposition Report, filed September 13, 2022, the Department stated, "An assessment was conducted to determine the potential for future risk to the safety of the child .... Based on [Department] referral history, neglect issues in the home, domestic violence issues in the home, and the age of the child in the home, the Family can be categorized as being at 'HIGH' Risk for future abuse and/or neglect. Thus, it is respectfully recommended that the continued detention of [the] child . . . from mother . . . and father . . . is necessary to protect the child's safety." In the "Reasonable Efforts" section of the same report, the Department identified the following services: 1. "Regular in person contact with the child," 2. "Regular in person and telephonic contact with . . . mother," 3. "[C]risis intervention, as needed," 4. "[S]upplied mother with needed referrals on numerous occasions," 5. "[P]rovided case management services (including service referrals and linkage) to all parties involved in the case," 6. "[E]nsured current medical and dental services for the child," 7. "Contact with service provided and related [Department] staff as needed," 8. "Conducted interviews with all relevant parties," and 9. "Noticed all relevant parties in a timely manner."
Finally, father argues that substantial evidence did not support the juvenile court's removal order. Substantial evidence supported the order. Father denied that he had beaten mother, and took no steps to address his conduct. (In re D.B. (2018) 26 Cal.App.5th 320, 332 ["In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention. [Citation.]"].)
IV. DISPOSTION
The orders are affirmed.
We concur: BAKER, Acting P. J. MOOR, J.