Opinion
B320330
10-03-2023
In re F.H. et al., Persons Coming Under the Juvenile Court Law. v. S.P., 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, Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, Super. Ct. No. 21CCJP04662 Anabelle G. Cortez, Judge.
Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
In this appeal concerning the dependency proceedings relating to 17-year-old F.H., 13-year-old A.W., and 8-year-old S.R., S.P. (mother) challenges the jurisdictional findings relating to her non-accidental infliction of physical harm on her two older children, as well as the findings entered in support of F.H.'s removal from her custody. She also asserts the Department of Children and Family Services (Department) failed to ask several extended family members whether they had any Indian ancestry, and requests that we issue an order directing the Department to comply with its duty of inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law.
The children each have a different father, who 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.
We affirm the challenged jurisdictional findings. We also affirm the order removing F.H. from mother's custody. Finally, we dismiss as moot the portion of the appeal relating to ICWA.
DISCUSSION
I. Jurisdictional Findings
At the adjudication hearing held in February 2022, the juvenile court found true most of the allegations asserted in the operative first amended petition filed on the children's behalf under Welfare and Institutions Code section 300. Relevant to this appeal, the court found that mother placed the children at risk of physical and emotional harm because she "seriously physically harmed" F.H. and A.W. on multiple occasions (counts a-1, a-3, b-1, b-3, j-1, and j-3, as amended by interlineation), and was unable and unwilling to provide F.H. with ongoing care and supervision, as mother requested F.H.'s removal from her care in October 2021 (counts b-4 and j-4).
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court also found A.W. was at risk of harm due to her father's unresolved substance abuse issues (count b-5). Mother challenges this finding by way of a brief, two-sentence footnote in her opening brief. Her assertions of error, however, are not accompanied by reasoned analysis. Nor are they supported by citations to the record or legal authority. We therefore treat these conclusory arguments as forfeited and do not consider them on the merits. (SeeBenach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
A. Mootness
1. Governing Principles
"A court is tasked with the duty '"to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it."' [Citation.] 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.'" (D.P., supra, 14 Cal.5th at p. 282.) In dependency cases, our Supreme Court has held that courts should consider the following factors when deciding whether to review jurisdictional findings in a moot appeal: (1) whether the finding "'could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings,' or '"could have other consequences for [the appellant] beyond jurisdiction[ ]"'" (id. at p. 285); (2) "whether the jurisdictional finding is based on particularly pernicious or stigmatizing conduct[ ]" (id. at pp. 285-586); and (3) "why the appeal became moot[,]" bearing in mind that "where . . . the case becomes moot due to prompt compliance by parents with their case plan, discretionary review may especially be appropriate." (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.)
2. Analysis
The Department raises two arguments relating to the mootness of mother's jurisdictional challenges. First, it contends mother's contentions relating to A.W. and S.R. are moot because, at the six-month review hearing held in October 2022, the juvenile court terminated jurisdiction over both children and returned them to mother's custody. Second, the Department argues that with respect to all three children, this appeal is moot because mother only challenges the jurisdictional findings relating to her infliction of physical harm upon F.H. and A.W., and does not dispute the findings that the children were at risk of harm due to her inability and unwillingness to care for F.H.
We agree with the Department's second argument and conclude mother's jurisdictional challenges relating to all three children are moot. As noted above, the juvenile court found true the allegations that mother caused serious physical harm to F.H. and A.W. Based on those allegations, it exercised jurisdiction over the two older children under section 300, subdivisions (a), (b), and (j), and exercised jurisdiction over S.R. under subdivision (j). Independent of those grounds for jurisdiction, however, the court also exercised jurisdiction over F.H. under section 300, subdivision (b), and exercised jurisdiction over A.W. and S.R. under subdivision (j), based on mother's unwillingness and inability to provide F.H. with ongoing supervision and care. Consequently, reversal of the former findings (i.e., the findings at issue on appeal) will have no "'practical, tangible impact on [mother's] conduct or legal status'" because the latter findings will remain undisturbed, and furnish the basis for jurisdiction, as well as the order removing F.H. from mother's custody (i.e., the dispositional order challenged on appeal). (D.P., supra, 14 Cal.5th at p. 277.) We therefore conclude mother's jurisdictional challenges are moot.
In light of this conclusion, we consider whether to exercise discretionary review of mother's jurisdictional challenges. On this point, we note that "it may serve the interest of justice" to review jurisdictional challenges where, as here, the appeal is moot because the "parent does not challenge all jurisdictional findings, but only [some] finding[s] involving particularly severe conduct." (D.P., supra, 14 Cal.5th at p. 286.) We also note that the disputed findings are "based on particularly pernicious . . . conduct[,]" namely, mother's non-accidental infliction of serious physical harm to F.H. and A.W. on multiple occasions. (Id. at pp. 285-286; see also In re L.O. (2021) 67 Cal.App.5th 227, 237-238 [noting findings that the "[f]ather 'knowingly or negligently' harmed the child or exposed him to a substantial risk of physical harm are 'pernicious'"].) Therefore, the nature of the disputed allegations also weighs in favor of exercising discretionary review. For these reasons, we will address mother's jurisdictional challenges.
B. Substantial Evidence Review
1. Governing Principles
Pursuant to section 300, subdivision (a), 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 inflicted nonaccidentally upon the child by the child's parent or guardian." In addition, at the time the petition was adjudicated in this case, section 300, subdivision (b)(1), provided that the 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 ...." Moreover, per section 300, subdivision (j), a child may fall within the juvenile court's jurisdiction if the court finds "[t]he child's sibling has been abused or neglected, as defined in [section 300] subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions."
"'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.) 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.)
2. Analysis
Mother argues that the jurisdictional findings relating to her non-accidental infliction of serious physical harm to F.H. and A.W. are not supported by substantial evidence. In so doing, she notes those findings were based entirely on statements from F.H. and A.W. She then contends those statements should not have been credited because F.H. has "behavioral issues and problems with substance abuse," and A.W. recanted her statements and "was also known to family members to be untruthful."
We reject mother's argument because it disregards the applicable standard of review. As noted above, as the reviewing court, "[w]e do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts." (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) Instead, we view the record in the light most favorable to the juvenile court's findings and determine whether they are supported by substantial evidence. (In re Yolanda L., supra, 7 Cal.App.5th at p. 992.) As discussed below, the record contains sufficient evidence to support the findings at issue.
Throughout the Department's investigation in the underlying case, F.H. and A.W. consistently reported mother has caused them physical harm on multiple prior occasions. They have also corroborated each other's statements.
A.W. was interviewed about mother's alleged abuse on three separate occasions. The first interview took place at her school, the second interview occurred at her home while she was still in mother's care, and the third interview was held at her maternal great-grandmother's home following her detention from mother. At the beginning of the second interview, A.W. recanted all of her prior allegations of harm. Shortly thereafter, however, she quietly disclosed that mother and S.R. told her to lie to the Department. Then, speaking in a lower tone, A.W. provided statements consistent with her prior allegations of physical harm by mother.
With respect to the physical harm to A.W., A.W. reported mother has slapped her in the face and on the side of her head. She also related mother has punched her in the nose, causing it to bleed, pulled her hair, punched her in the stomach, kicked her in the shin, and forced her to hold a piece of paper against the wall with her nose. Further, A.W. reported that on one occasion when mother became upset at her for stealing, mother held her hand over the flame of a burner on a gas stove, causing an injury that left a scar. A.W. stated that the next day, mother took her to a hotel room where a friend of her stepfather was staying, made her get into the closet, and told her to sleep there for the night. F.H. confirmed A.W.'s statements and reported either observing firsthand or hearing from A.W. about many of mother's acts described above. According to F.H., A.W. has gone to school with marks and bruises, but would lie about how she sustained those injuries, and would not tell anyone else about mother's conduct except F.H.
With respect to the physical harm to F.H., F.H. reported mother has hit her once or twice in the past. She also stated mother has thrown objects at her. Consistent with these statements, A.W. related F.H. told her that mother threw something at her, and that she believed F.H. because she saw a bruise and some redness around F.H.'s jaw.
The record reflects that, at the time of the adjudication hearing, mother had yet to fully acknowledge or otherwise take responsibility for her actions. Instead, mother told the Department that her older children had lied about their reports of harm, claimed F.H. simply wanted to get mother in trouble with the Department, and accused F.H. of telling A.W. and S.R. to lie to the Department. Further, mother stated she did not kick, hit, or slap A.W. She also denied using physical discipline on the children, denied placing A.W.'s hand over a lit stove, denied making A.W. sleep in a closet, and denied pulling A.W.'s hair.
On this record, the juvenile court could reasonably find mother has non-accidentally caused serious physical harm to her two older children on numerous occasions. (See § 300, subd. (a).) In addition, the court could appropriately find that all three children were at serious risk of physical harm because, at the time of the adjudication hearing, mother had not acknowledged the impropriety of her actions and therefore might engage in similar behavior in the future. (See § 300, subds. (a) &(b)(1).) Thus, the challenged jurisdictional findings are supported by substantial evidence.
II. Removal of F.H. from Mother
A. Governing Principles
Pursuant to section 361, subdivision (c)(1), the juvenile court may remove a child from the custody of a parent if it finds, by clear and convincing evidence, "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being 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." "A juvenile court's removal order at a disposition hearing will be affirmed on appeal if it is supported by substantial evidence." (In re V.L. (2020) 54 Cal.App.5th 147, 154.)
In Conservatorship of O.B. (2020) 9 Cal.5th 989 (O.B.), our Supreme Court clarified the nature of substantial evidence review applicable to a challenge to the sufficiency of the evidence supporting a finding made under the clear and convincing evidence standard. It held: "[A]n appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at pp. 10111012.)
B. Analysis
Mother contends the juvenile court erred by removing F.H. from her care because its findings under the two-pronged test set forth in section 361, subdivision (c)(1), are not supported by substantial evidence. For the reasons discussed below, we conclude her arguments are unavailing.
Regarding the first prong of the applicable test, mother relies on the same arguments underlying her jurisdictional challenges to contend "[t]he evidence does not support a finding by clear and convincing evidence that there is a 'substantial danger to the physical health, safety, protection, or physical or emotional well-being' of F.H. if the child was returned home.'" (Quoting section 361, subdivision (c)(1).) For the reasons stated in section I.B.2, ante, we reject her arguments and conclude that, on the record in this case, a reasonable fact finder could find it highly probable that returning F.H. to mother would create a substantial danger to her physical and emotional well-being. (O.B., supra, 9 Cal.5th at p. 1011.)
In addition to the evidence previously discussed, we note the record contains ample other evidence to support the juvenile court's finding under the first prong of the applicable test. Mother reported F.H. has been diagnosed with major depressive disorder and social anxiety, that F.H. was on medication for a short period of time, that F.H. has engaged in self-harming behavior by cutting herself on her upper thighs, and that F.H. has been enrolled in therapy since May 2021, after F.H.'s step-father found a suicide note in F.H.'s room. Consistent with mother's reports, F.H. stated she has been seeing a therapist for a while due to depression, admitted to using a razor blade to cut her legs, and told the Department that "[s]he had several moments where she wanted to end her life, but never developed a plan." Even though mother was aware of F.H.'s mental health issues and history of self-harming behavior, F.H. reported mother has told her to kill herself several times, and that "her triggers are when mother . . . tells her to go kill herself." F.H. also related mother constantly calls her foul and vulgar names and has stated she does not care about F.H. A.W. reported that she has heard mother speak to F.H. in this manner.
When speaking to the Department, mother either denied making the statements above or minimized their severity. In addition, the record shows mother largely blamed F.H. for their disagreements and her behavioral issues, believing they arose out of F.H.'s refusal to follow mother's rules and F.H.'s disrespect for mother and her step-father. Mother suggested F.H.'s behaviors could be corrected by sending her to boot camp. Consequently, the evidence reflects mother lacks insight into how her verbally abusive behavior affects F.H.'s emotional well-being. Accordingly, based on this evidence, as well as the evidence discussed in section I.B.2, ante, "a reasonable fact finder could have found it highly probable" that returning F.H. to mother would create a substantial danger to her physical and emotional well-being. (O.B., supra, 9 Cal.5th at p. 1011.)
With respect to the second prong of the test for removal, mother contends: "[T]here were reasonable means by which [F.H.] could have been protected without the drastic measure of removing [her] from [m]other's care. For example, [m]other agreed to allow F.H. to be placed with relatives for a period of time." We reject mother's contention because we fail to see how mother's proposed disposition is an alternative to removal. So far as we can tell, mother's suggested alternative is essentially identical to removal, as it would indefinitely place F.H. outside the home in the care of others while she is under the supervision of the Department and the juvenile court.
In any event, the record contains sufficient evidence to support a finding that there were no available alternatives to removal. On October 1, 2021, mother told the Department to "'be prepared to take [F.H.]'" and consented to F.H.'s detention from her care because F.H. "has behavioral issues that she cannot control and [she] does not know what to do" about them. Further, as discussed above, mother has not fully acknowledged or taken responsibility for her actions causing F.H. to suffer physical and emotional harm, and therefore may engage in those behaviors in the future if F.H. were allowed to remain in her care. On this record, we conclude that "a reasonable fact finder could have found it highly probable" (O.B., supra, 9 Cal.5th at p. 1011) that "there are no reasonable means by which [F.H.'s] physical health can be protected without removing [her] from [mother's] . . . physical custody." (§ 361, subd. (c)(1).)
In sum, for the reasons discussed above, we conclude the juvenile court's findings under section 361, subdivision (c)(1), are supported by substantial evidence. The juvenile court therefore did not err by removing F.H. from mother's custody.
III. ICWA
Mother contends the Department failed to discharge its duty of initial inquiry under ICWA because it did not interview several of F.H.'s extended family members with whom it had contact about their Indian ancestry. She therefore "requests that this [c]ourt order [the Department] to execute and complete in good faith its duty of inquiry should F.H. remain in out of home care." The Department responds that this portion of the appeal should be dismissed as moot, citing In re Baby Girl M. (2022) 83 Cal.App.5th 635 (Baby Girl M.). We agree with the Department.
In September 2022, while this appeal was pending, the juvenile court ordered the Department to "[c]onduct [a] full ICWA inquiry follow up with all known living relatives." Consequently, "there is no effective relief we can now provide[ ]" because "all we could order [on remand] . . . is that the Department and juvenile court fulfill their inquiry and notice obligations under ICWA and related California law[,]" and the Department has been ordered by the juvenile court to do just that. (Baby Girl M., supra, 83 Cal.App.5th at pp. 638-639.) In addition, we note that "we are not in a position to micromanage that process in this appeal (detailing, for instance, all those who must be interviewed, what they must be asked, and what must be included in any notice to tribes that is required)[ ] ....The juvenile court must direct that process, at least in the first instance." (Id. at p. 639, original italics.) Accordingly, we dismiss as moot the portion of the appeal relating to ICWA. (Ibid.)
DISPOSITION
The challenged jurisdictional findings are affirmed. The dispositional order relating to F.H. is affirmed. The portion of the appeal relating to ICWA is dismissed as moot.
WE CONCUR: MORI, J. ZUKIN, J.