Opinion
B329580
09-06-2024
In re R.N. et al., Persons Coming Under the Juvenile Court Law. v. JOSHUA N., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Senior Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 23CCJP01092A, Cathy J. Ostiller, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Senior Deputy County Counsel for Plaintiff and Respondent.
MOOR, J.
Joshua N. (father) appeals from the juvenile court's jurisdiction and disposition orders under Welfare and Institutions Code sections 300, subdivision (b), and 361, subdivision (c). Father contends the court's jurisdiction and removal orders were not supported by substantial evidence, and that its orders for monitored visits and individual counseling were an abuse of discretion. Respondent Los Angeles County Department of Children and Family Services (Department) contends that there is substantial evidence to support the court's jurisdiction and removal orders, and the court's disposition orders were not an abuse of discretion. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A. Family Background and Initial Investigation
J.I. (mother, born March 2006) and father met when mother was 15 years old and father was 16 years old. They met in January 2021 and became romantically involved late 2021 or early 2022. The couple moved in with maternal grandmother (MGM) in June 2022, when mother was pregnant. R.N. (minor) was born in November 2022. Mother and father are not married, but have consistently expressed a desire to stay together as a family.
Mother also filed her own notice of appeal. Mother's appeal was dismissed on March 28, 2024, after her appointed counsel filed a brief under In re Phoenix H. (2009) 47 Cal.4th 835, 838, and mother did not file a supplemental brief.
On February 10, 2023, while mother and father were asleep, minor started crying, and father shook mother, trying to wake her up to tend to the infant. Mother did not want to get up, and hit father on the shoulder to tell him to leave her alone. In return father slapped mother on the face. After the incident, MGM observed that mother's demeanor changed and she became more withdrawn. On February 16, 2023, mother disclosed the incident to maternal aunt and MGM. Law enforcement was called and mother sought an emergency protective order, which was denied because too much time had passed since the incident. Mother reported feeling overwhelmed and needing time away from father. Father was arrested and was going to be charged with domestic violence and having sex with a minor because mother was only 16 years old. Also on February 16, 2023, the Department received a five-day referral concerning the February 10, 2023 slapping incident.
On February 23, 2023, the social worker contacted MGM by phone, and MGM agreed to meet with the social worker the following day. The social worker then called mother's phone number, and a male voice answered. When the social worker identified herself, the line disconnected. The social worker called again, and mother answered. Mother acknowledged that father had picked up when the social worker had called previously, but mother could not explain why father had answered her phone or why he had hung up on the social worker. Mother agreed to meet the social worker for an in-person interview, but later rescheduled because she was visiting maternal grandfather (MGF).
The social worker interviewed MGM on February 24, 2023. MGM recounted that three years earlier, MGF took mother to live with him in Sacramento under false pretenses, and MGM was concerned for mother's safety because MGF was neglectful of mother's well-being. MGM claimed she did not have the support of law enforcement or child protective services in her attempts to bring mother back home. MGM reported that mother and father came back to live with MGM after mother learned she was pregnant. Upon learning of the February 10, 2023 slapping incident, MGM and maternal aunt explained to mother and father that with an infant in the home, no violence would be tolerated. When father was released from jail, MGM accepted him back in the home on the condition that he seek services and enroll in counseling, and he agreed. MGM also asked father to get a job and start paying rent. MGM reported mother had a mental health history, with depression and self-harming thoughts. MGM agreed to obtain help for mother and to be vigilant to possible further violence.
On February 27, 2023, the social worker interviewed mother and father separately. Mother described father as "controlling, and having a short temper." She said she and father would "roughhouse play," which she described as father grabbing her shoulder and shaking her body. She said father had thrown her onto a couch or a bean bag, and he would act that way when they argued and he was upset. Once, when she was pregnant and they were living with father's sister in San Diego, they were pillowfighting, and he hit her on the head, causing her pain. Describing the February slapping incident, mother said minor was in his bassinet and was crying. Father was trying to get mother up, and "shook her arm and she refused to get up so she 'smacked him' on the shoulder trying to tell him to leave her alone and in return he slapped her on the face." Mother was in shock and did not know what to do or say, so she got up and fed the baby. Mother agreed to an Up Front Assessment, and that she needed mental health services to address her depression and constantly feeling tired.
In the detention report, the social worker expressed concern that the baby might have been in bed with mother and father, because upon initial inspection, the bassinet appeared to be used for storage.
Father told the social worker that he had been in a relationship with mother for three years, and they did not have any relationship issues. Describing the slapping incident, he said he had tried to wake mother up, but she refused. When she smacked his arm, he slapped her back. He told the social worker:" 'I don't know why I did that.'" " 'I know I shouldn't have done that, but I think it was my reaction from her reaction.'" He denied engaging in roughhouse play with mother or shaking her. Asked if he had ever thrown mother onto a couch or beanbag, he responded" 'No, or we were just playing.'" Father confirmed he and mother were pillowfighting when she was pregnant, stating, "We were just playing," and that mother had not been hurt and did not complain of any pain at the time. Father agreed to enroll in services.
The social worker also interviewed maternal aunt, who had moved back into MGM's home to help mother with the baby. She said she called law enforcement after learning that father had slapped mother, and that MGM had permitted him to return to the home on the condition that he enroll in services to address the domestic violence incident and get a paying job.
In March, the social worker sent texts to mother with contact information for services. On March 15, 2023, the social worker asked mother to have father contact her, and mother responded he was sleeping as he was working the night shift. The social worker sent father two texts to enroll in services, but father did not respond to or acknowledge the texts.
On March 23, 2023, MGM told the social worker about an incident two weeks earlier where she had taken mother to the local school to enroll, and mother left minor in father's care, while father was in bed. When they returned, minor was crying loud enough to be heard outside the home and was sweaty from crying, but father was still asleep. MGM was unaware that father was working a night job, and suspected father had not told her because he did not want to pay rent. Nevertheless, she would not have permitted mother to leave minor in father's care had she known he was working nights.
The social worker also spoke to mother and father by phone about father remaining asleep while the baby was crying. Mother reported the baby was sleeping when she left, she told father she was leaving, and father acknowledged her. Father said he did not remember, and when mother demanded to know why he had not attended to the infant, he said "I was asleep." Father was adamant that he had not heard minor crying. When the social worker asked about services, father responded that he was overwhelmed and needed breathing space. The social worker explained that the Department was concerned that both mother and father were overwhelmed and that minor might get hurt.
Paternal grandmother (PGM) called the social worker after speaking with father, and told the social worker that father had been mother's sole financial provider for the past year, and accused MGM of causing mother stress and anxiety and trying to take father's income from him. When the social worker asked PGM about father's arrest, PGM seemed unconcerned and stated that mother had also hit father.
On March 24, 2023, the social worker met with MGM and the parents at a Department office to go over the Department's ongoing concerns, noting the following: there had been two incidents where the parents were unable to meet minor's needs for feeding and supervision; parents had longstanding relationship issues, including father physically grabbing mother; despite being aware of mother's depression, father called mother a "bad mother" when she asked for his help; and parents had not enrolled in services.
Three days later, on March 27, 2023, father sent a text to the social worker informing her he had moved out of MGM's home. The social worker called father, advised him that she had not asked him to move out, explained that it would be for the court to decide whether he needed to move out, and asked father why he was doing this. Father responded," 'because I'm an unfit parent.' "
On March 28, 2023, MGF called the social worker. He refused to discuss his own criminal history, but said that father was not good support for mother and minor at this time. MGF described himself as having a more lenient parenting style than MGM, who is stricter and sets rules and boundaries; he agreed that MGM wants the best for mother, and that she and maternal aunt were good support for mother and would keep her safe.
Based on mother's mental health, father's anger management issues, and evidence father lacked any understanding of how his actions placed minor at risk of harm, the Department concluded it was necessary to file a petition and seek an order removing minor from father's custody.
B. Petition Allegations and Further Investigation
On April 3, 2023, the Department filed a petition alleging three counts. The petition alleged two identical counts that minor was at risk under section 300, subdivisions (a) and (b), based on the February 10, 2023 incident and prior occasions where father grabbed mother's arm, shook her, and threw her onto furniture, and mother failed to protect minor (counts a-1 and b-1). It also alleged minor was at risk under section 300, subdivision (b) based on mother's inability to provide regular care because of her mental and emotional problems, her failure to participate in mental health treatment, and father's failure to protect minor (count b-2).
The exact wording of the count was: "[Mother and father] have a history of engaging in violent altercations, in the child's presence. In February 2023, the mother struck the father's shoulder with the mother's hand. The father stuck [sic] the mother's face with the father's hand. The child was present during the violent altercation. On prior occasions, the father grabbed the mother's arm, shook the mother and threw the mother onto furniture. On a prior occasion, the father struck the mother's head with a pillow, during the mother's pregnancy with the child, causing pain to the mother. Such violent conduct on the part of the father and mother endangers the child's physical health and safety, creates a detrimental home environment and places the child at risk of serious physical harm, damage, danger and failure to protect."
At an initial hearing on April 17, 2023, the court ordered minor detained from father and released to mother on the condition she continue residing in Department-approved housing, including either MGM or MGF. The court ordered mother to comply with all mental health services, father to have monitored visits with minor, and gave the Department discretion to liberalize father's visits. It also ordered the Department to provide family preservation services to mother and to assess closing the case with a voluntary contract under section 301.
A dependency investigator interviewed mother, father, MGM, and MGF in early May. Mother, father, and MGM all reviewed the history of the relationship between mother and father. They first met when PGM and MGF were dating and lived together for three months. Mother and father's romantic relationship began in early 2022. Mother had a miscarriage before becoming pregnant with minor. Mother and father could no longer live with MGF after mother's pregnancy, because MGF's girlfriend did not approve of the relationship or the pregnancy. Before mother and father moved in with MGM, they had lived with father's sisters, until that became unworkable. PGM would not allow mother to live in her home because mother was still a minor, and because MGM had initiated a child welfare referral against her when she was living with MGF. Living with MGM was stressful for mother, and father felt that he had to protect mother from the stress caused by MGM.
Mother and father wanted to remain together as a family. They both reported that father financially supports mother, and MGM does not provide financial support.
Mother downplayed the seriousness of prior incidents of alleged violence between her and father. She claimed that she and father have never been violent, and that her sister forced her to call law enforcement. She also denied the petition allegation that she did not participate in mental health services, explaining that she previously participated in therapy, was never placed on medications, and that mental health services were previously terminated when the Department ended its investigation. Mother did acknowledge prior adverse experiences, including physical abuse by MGM and the separation of mother's parents. Mother had previously experienced thoughts of suicide and selfharm, but she reported she had not self-harmed since 2020. She was concerned about her current mental and emotional state, because she was experiencing some depressive symptoms, possibly related to post-partum. She was open to receiving services to develop her parenting skills and address her mental health.
Father acknowledged hitting mother's cheek with an open hand in February 2023, but denied he hit her with enough force to cause significant pain. He denied being physically aggressive towards mother, shaking her or throwing her onto any furniture. He admitted they had pillow fights, but not when she was pregnant.
Father is one of eleven siblings, although his only full siblings are one sister and one brother; the remaining eight have the same mother (PGM) and are much older. Paternal grandfather (PGF) was abusive, and PGM intentionally kept father and his siblings away from PGF. PGF registered as a sex offender in 2010, and had recently started serving a sentence of incarceration. The record is silent as to PGF's offenses. Father denied any drug use other than occasional marijuana use, which he discontinued after the Department investigation started. He reported having years of therapy after his parents' divorce around 2015. He believed he was diagnosed with PTSD and depression, but he worked through his traumas in therapy and now looked at each new day in a positive way.
Father reported moving around a lot when he was young, living in New Mexico and Arizona before returning to California when he was around 14 years old. In Sacramento, he decided he wanted to emancipate from his parents, and was close to doing so in early 2022. At that time, father reconnected with mother and began a romantic relationship with her. According to father, mother became pregnant when she was sixteen and he was seventeen. They told MGF, who was shocked but supportive. MGF's girlfriend did not support the couple or the pregnancy, so they had to move out and find another place to live.
MGM described parents playing rough with each other. MGM did not approve of that type of horseplay, and warned parents that it was unhealthy and could lead to them disrespecting each other. She found father to be impatient if he did not get his way and felt parents would benefit from learning about healthy boundaries. MGM wanted to repair her relationship with mother. She was also concerned that if mother was not under a court order to participate in therapy, she would not do so.
MGF and his wife were willing to support mother and minor, and felt that mother would have better access to schooling with them in Sacramento. Both felt that mother and father would benefit from a parenting program and counseling. MGF had known father since father was 16 years old. He learned of the February 2023 domestic violence incident from the investigating social worker. Father lacked a stable father figure in his life and could benefit from learning new coping skills.
Father enrolled in a Fatherhood Program on April 12, 2023, and attended minor's medical appointment with mother on April 21, 2023. The social worker viewed father's presence at the doctor's visit as violating the court's order for monitored visits. Father missed his first monitored visit on May 9, 2023, because he overslept, but he rescheduled for the following day.
In the Department's jurisdiction and disposition report, the Department recommended finding all the petition allegations to be true, based on mother's view that the February 2023 incident was an isolated incident, concerns that mother and father have a "co[]dependent relationship with unhealthy boundaries," and evidence that mother and father are more focused on when they can see each other, rather than learning strategies to more effectively care for and protect minor. The Department also recommended against a voluntary services contract because both parents would benefit from mental health counseling, and mother's parents believed mother would not participate absent a court order.
On May 10, 2023, father asked the social worker if mother could attend his visits with minor. The social worker emphasized that minor was the focus of the visits, and father understood. After the scheduled visit, father expressed concerns that minor was having frequent diaper rashes, and minor had a bug bite, ear wax, and his nails needed to be cut. Father had already spoken to mother about the diaper rash and asked if she needed any different products or rash creams.
The Dependency Investigator spoke by phone with PGM on May 16, 2023. PGM emphasized that neither MGM nor MGF were supporting mother, even though they were capable of doing so. She claimed both maternal grandparents had neglected mother's mental health needs. Instead, father was mother's sole source of support, and was a great father, doing most of the caretaking when he was living in MGM's home. PGM believed father could take care of minor, and she was willing to cosign an apartment for father in Arizona, where she was moving soon, but he was unwilling to leave mother, mother was unwilling to live in Arizona, and PGM was unwilling to cosign for an apartment in California. PGM said father was not controlling, but was acting out of concern for mother. The family could not live with PGM because of past conflict between PGM and MGM. PGM was very critical of MGM, and claimed that mother would not say anything against MGM due to fear of being separated from minor. PGM offered to pay for mother's and father's counseling, but MGM was against counseling.
On May 16, 2023, paternal great-grandparents told the dependency investigator that father had lived with them for about two months, but they knew nothing about why the Department became involved or removed minor from father's custody. Father had only shared with paternal greatgrandparents that he was trying to regain custody of minor. Because of differences in their schedules, paternal greatgrandparents hardly saw father, but they believed him to be a responsible person with a good character. PGM did not believe paternal great-grandparents' home would be a good environment for father or minor, as paternal great-grandparents enabled PGF and placed her children, including father, in harm's way while PGM was trying to leave a domestically violent relationship with PGF. C. Jurisdiction and Disposition Hearing
The jurisdiction and disposition hearings took place on May 18, 2023, and the court received the Department's reports into evidence, heard testimony from father, and heard argument from all parties. After argument, the court struck the petition allegation under subdivision (a), finding that minor was not placed directly in harm's way by the domestic violence between mother and father. The court noted that "what comes out . . . more than anything else is that we are dealing with two very young parents who probably don't have a very good sense right now about what domestic violence is ...." It also struck the count relating to mother's mental health. The court did, however, sustain the allegation under section 300, subdivision (b), finding that the domestic violence and the dynamic of the parents' relationship placed minor at risk of harm. The court agreed with the Department and minor's counsel that the February 10, 2023 incident "does not appear to be just a one-time occurrence" where father struck mother in an isolated incident. Instead, the court found that there "has been a power-differential relationship, a controlling situation here for the past several years," and because mother was a young mother and parents were planning to stay together, mother was not in a position to recognize the beginnings of a domestic violence dynamic. The court found the Department had not met its burden on the second subdivision (b) count, relating to mother's mental health, and struck that allegation.
After entertaining argument about minor's placement, the court ordered that minor would be removed from father and released to mother on the condition that mother remain in MGM's home or another home approved by the Department. The court ordered monitored visits for father, as well as a case plan that included a parenting class, individual counseling to address communication, healthy relationships, codependency, unresolved trauma, domestic violence with mother, and the fact that mother was a young teenager when the relationship began. It denied father's request for unmonitored visits, but gave the Department discretion to liberalize visits, and added an order for conjoint counseling with mother. Father filed a timely notice of appeal.
We grant the Request for Judicial Notice filed by the Department on April 24, 2024.
On March 26, 2024, the court terminated jurisdiction and entered a juvenile custody order, granting mother and father joint legal custody of minor, and sole physical custody to mother, with unmonitored visits for father.
DISCUSSION
A. Substantial Evidence Supports Jurisdiction Under Section 300, subdivision (b)(1)
Father contends there was insufficient evidence to support the jurisdictional finding against him. He argues that the February 2023 incident was isolated and unlikely to recur, and the other incidents were not serious enough to rise to the level of domestic violence and both remote and uncertain as to time. Father asks us to consider contrary evidence that mother and father were just playing in the earlier incidents, and both were exhausted at the time of the February 2023 incident. While there may have been some conflicting or ambiguous evidence in the record, that does not require us to determine as a matter of law that the evidence in support of jurisdiction was insufficient when viewed in the light most favorable to the juvenile court's decision.
" 'Section 300, subdivision (b)(1), authorizes a juvenile court to exercise dependency jurisdiction over a child if 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 . . . to adequately supervise or protect the child, or . . . by the inability of the parent . . . to provide regular care for the child due to the parent's . . . mental illness, developmental disability, or substance abuse." (§ 300, subd. (b)(1).)' [Citation.] A dependency court is not required to 'wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.' [Citation.] Where jurisdictional allegations are based solely on risk to the child, and not on past injury, a juvenile court ordinarily determines whether a substantial risk of harm exists at the time of the jurisdiction hearing." (In re J.M. (2019) 40 Cal.App.5th 913, 921.)
Courts have repeatedly held a child's exposure to domestic violence may support jurisdiction under section 300, subdivision (b)(1). (See, e.g., In re Jesus M. (2015) 235 Cal.App.4th 104, 112-113; In re T.V. (2013) 217 Cal.App.4th 126, 134-135 (T.V.); In re R.C. (2012) 210 Cal.App.4th 930, 941-942; In re E.B. (2010) 184 Cal.App.4th 568, 575-576; In re Heather A. (1996) 52 Cal.App.4th 183, 194 (Heather A.).) "[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [a child] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (Heather A., supra, 52 Cal.App.4th at p. 194.)
We review a juvenile court's jurisdictional orders for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 (Yolanda L.).) 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. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.).) "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. [Citation.]" (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. [Citations.]" (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." [Citation.]' [Citation.]" (Yolanda L., supra, 7 Cal.App.5th at p. 992.)
Mother and father's statements, their respective histories and family dynamics, and their own relationship dynamic provided substantial evidence of risk of harm to minor stemming from the likelihood of future domestic violence. Mother's early response to the slapping incident prompted a law enforcement's arrest of father and mother seeking an emergency protective order. In her initial interview with the investigating social worker, mother described father as controlling and having a short temper; she recounted specific incidents where father struck mother and caused her pain.
In contrast to mother's reports, father denied any domestic violence, instead characterizing his actions as two teenagers "just having fun and living life to the fullest." He denied mother's claims that he had shaken her, thrown her onto furniture, or hit her on the head with a pillow while she was pregnant and caused her pain. Mother, who had initially acknowledged feeling overwhelmed, later minimized the prior incidents and claimed she had been pressured by maternal aunt into calling law enforcement. Nevertheless, in light of mother's acknowledgment that she was suffering from post-partum depression, father's denials and his actions during the Department's investigation- hanging up on the social worker, his statements that mother was a "bad mother," and that he needed breathing room when asked about services, followed by moving out of MGM's home because he thought he was an unfit parent when confronted with the Department's concerns-demonstrate a dynamic in which it is reasonable to infer that an infant, cared for by a young couple struggling to meet daily demands, was at risk of future harm. The risk of harm persists, in light of father's statements denying his conduct and that any of his physical acts caused mother pain. (In re A.F. (2016) 3 Cal.App.5th 283, 293 [" '[d]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision' "]; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["[o]ne cannot correct a problem one fails to acknowledge"].) On this record, the juvenile court could reasonably conclude that the nature of the relationship between mother and father placed minor at substantial risk of harm. Therefore, we find substantial evidence to support the sustained jurisdictional allegation.
Recognizing the state of the record and our general deference to jurisdictional findings supported by substantial evidence, father also argues the Department should have pursued a voluntary contract, rather than filing a dependency petition. Father's argument is not convincing, because the Department is not required to pursue a voluntary contract, and father's conduct could reasonably have caused the Department to lack confidence in his willingness to abide by a voluntary agreement. Indeed, despite agreeing to MGM's demand that he enroll in services, and agreeing with the social worker to do the same, father only enrolled in a parenting program after the petition was filed, and had only been to four sessions by the date of the adjudication.
B. Substantial Evidence Supports Removal Order
In challenging the sufficiency of the evidence supporting the court's removal order, father does not argue there is insufficient evidence to support the finding that there is clear and convincing evidence of risk of harm; instead his sole contention regarding the removal order is that removal was unwarranted because there were reasonable alternatives to removal, such as unannounced visits, family preservation services, housing assistance, or wraparound services. We reject this argument, finding substantial evidence that there were no reasonable alternatives to removing minor from father's custody.
Section 361, subdivision (c)(1) provides for the removal of a dependent child from the physical custody of the parent "with whom the child resides at the time the petition was initiated ...." if the court finds by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional wellbeing of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." Subdivision (d) contains similar provisions with respect to removal from a parent with whom the child did not reside. (§ 361, subd. (d) [removal requires finding of substantial danger, as in subd. (c)(1), for the parent to live with the child rather than for the child to return home].) "[B]oth subdivision (c) and subdivision (d) impose the same factfinding requirements and heightened clear and convincing burden of proof for removal." (In re S.F. (2023) 91 Cal.App.5th 696, 720 [any error in removal order under section 361, subdivision (c), rather than subdivision (d) was harmless].)
" '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.)
At the time of the disposition hearing, father was living with paternal great-grandparents, had only recently started a parenting program, and had not yet started individual counseling. During the period he was still in MGM's home, when left to care for minor for a few hours, father did not hear minor crying; MGM stated that had she known father was working nights, she would not have left minor in his care. Father also had challenges communicating with the Department, first failing to respond to communication efforts from the social worker and then moving out under the mistaken impression that he was an unfit parent while the Department was still investigating and had not yet filed a petition. Later, when father was living with paternal great-grandparents, PGM did not believe the home was a good environment for father or for minor, because the paternal great-grandparents had not been supportive of her when she was trying to leave PGF, who had been abusive to her and her children. In addition, the difference between father's work schedule and paternal great-grandparents' schedule meant that they hardly spoke to each other. Despite father living with paternal great-grandparents for two months, they were unaware of why minor had been removed from father's custody. It is reasonable to infer that paternal great-grandparents would not be available to care for minor while father was working or sleeping, based on paternal great-grandparents' own statements that father worked at night and slept during the day, while paternal great-grandparents worked during the day, so they hardly saw each other. At the disposition hearing, after the Department expressed concern about paternal greatgrandparents, minor's counsel asked that the court either order a pre-release investigation of paternal great-grandparents' home or condition any such release on having the home assessed, if the court was considering release to father. The court also had reason for concern over minor's safety, given that minor was only six months old at the time of the disposition hearing, and the record included evidence of earlier incidents where father slept through minor crying and missed his first monitored visit because he overslept. Under these circumstances, there was substantial evidence to support the court's determination that were no reasonable alternatives that would protect minor's health, safety and welfare if he were returned to father's custody. We find adequate evidentiary support for the court's removal order.
C. Father's Challenge to the Juvenile Court's Disposition Orders for Individual Counseling and Monitored Visits is Moot
Father contends the court's order requiring his visits with minor to be monitored and requiring him to participate in individual counseling were an abuse of discretion. We decline to reach the merits of this issue because the juvenile court's March 26, 2024 order terminating jurisdiction and issuing a custody order giving father unmonitored visits renders this portion of father's appeal moot. "An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citation.]" (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054.) We have considered the factors bearing on discretionary review of moot questions identified in In re D.P., supra, 14 Cal.5th at pages 286 through 287, and we decline to exercise our discretion here.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
I concur: KIM, J.
BAKER, Acting P.J, Concurring in Part and Dissenting in Part
I agree substantial evidence supports the juvenile court's jurisdiction finding, and I agree Joshua N.'s (Father's) challenge to the orders for individual counseling and monitored visits are moot.
I respectfully dissent, however, from the majority's decision to affirm the juvenile court's decision to remove minor R.N. from Father's physical custody. Under the somewhat less deferential standard of review we are obligated to apply when evaluating such orders (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005, 1011), there is no substantial evidence R.N.'s physical health could not be protected without removing the child from Father's custody.
By the time of the disposition hearing, the parents were already living separately and the juvenile court could have ordered that arrangement continue. Although Father was initially reluctant to participate in services before dependency proceedings commenced, after the proceedings were underway he was proactively participating in a fatherhood program. Thus, with the supervision of the child services agency that the sustained jurisdiction finding conferred (which can include measures like unannounced home visits and wraparound services), R.N.'s physical health could be protected in Father's custody. Indeed, that conclusion is consistent with the juvenile court's subsequent order (which we have judicially noticed) for unmonitored visitation with Father, minor's counsel's advocacy at the disposition hearing in favor of maintaining Father's (shared) custody of the child, and the thin but sufficient basis on which jurisdiction was taken in the first place (in the juvenile court's words, the "foundation of a domestic violence relationship").
The majority's contrary determination comes down to an assertion (technically, assertions plural because the majority mentions it twice) that R.N.'s physical safety was in jeopardy because Father did not wake on one occasion when R.N. was crying in his bassinet. If that were the standard for removing a child from a parent's custody, an awful lot of working parents of infants would lose custody of their children. Thankfully, that is not the standard, and today's decision affirming the removal order is an anomaly.
The majority appears to fault Father for moving out of the family home before he was ordered to do so. That penalizes Father for taking a step protective of R.N. The majority also invokes the grandmother's criticism of the great-grandparents' home, but that criticism appears to stem from a dispute unrelated to R.N.'s welfare.