Opinion
B298684
06-02-2020
In re J.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.C., Defendant and Appellant.
Patricia G. Bell, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP02749A-C) Appeal from orders of the Superior Court of the County of Los Angeles, Phillip L. Soto, Judge. Affirmed in part, dismissed in part. Patricia G. Bell, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
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I. INTRODUCTION
F.C. (mother) appeals from the juvenile court's order asserting jurisdiction over her children—J.M., E.J., and N.C.—under Welfare and Institutions Code section 300. She also challenges the court's dispositional order as to N.C., which allowed N.C. to remain in the custody of her father, J.H., under a preexisting family law order. We dismiss mother's appeal of the jurisdictional order as to J.M. and E.J. as moot. We also dismiss her appeal of the dispositional order as to N.C. as moot. But we exercise our discretion to consider mother's appeal from the jurisdictional order as to N.C. and affirm that order.
All statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
A. Section 300 Petition
On May 1, 2019, the Los Angeles County Department of Children and Family Services (Department) filed a petition under section 300, subdivisions (a), (b)(1), and (j) that alleged jurisdiction over J.M. (then age 12), E.J. (then age 8), and N.C. (then age 2).
As relevant for purposes of this appeal, it alleged in paragraph b-1:
"The children['s] mother . . . and [] mother's male companion, [Z.J.], father of [E.J.], have a history of engaging in violent altercations. On 3/23/19, [Z.J.] walked towards [] mother in an aggressive manner, yell[ed] at [] mother and threatened to hit [] mother, in the presence of the children, [E.J.] and [N.C.] On 3/23/19, [m]other yelled at [Z.J.] while holding a knife. [Z.J.] swung [his] arms and . . . mother stabbed [Z.J.'s] wrist, inflicting a bleeding laceration . . . On a prior occasion, . . . mother and [Z.J.] engaged in a violent altercation during [m]other's pregnancy with the child, [N.C.]. On prior occasions, [Z.J.] texted and harassed . . . mother. On prior occasions, the parents engaged in verbal altercations . . . . Such violent conduct on the part of [Z.J.] against [] mother . . . place the children at risk of serious physical harm, damage, danger and failure to protect." B. Detention Report and Hearing
The petition also alleged as to E.J., counts b-2 and j-1 against mother and Z.J., who is not a party to this appeal. Because Z.J. is not a party to this appeal and we dismiss mother's appeal as to E.J. as moot, we do not discuss the facts that support these other counts.
On March 23, 2019, police responded to a report of domestic violence between mother and Z.J. By the time the police arrived at the location, the residence of E.J.'s paternal grandmother, mother had fled the scene and Z.J. was bleeding from a six-inch laceration to his wrist that required transportation to the hospital.
Z.J. told the police that while he was at the residence, mother texted that she and her new boyfriend were dropping E.J. off for a visit. Z.J. became angry and ran downstairs to confront mother's boyfriend. As Z.J. approached her car, mother got out of the car, and the two began yelling at one another. During the altercation, mother stabbed Z.J. with a knife.
The police interviewed mother who stated that she and Z.J. had dated for approximately 10 years, but for the past three years, they had not been dating. Z.J. threatened to "fuck her up," and mother had 20 voicemail messages as evidence of prior threats. Mother further reported that Z.J. had one prior arrest for engaging in domestic violence against her. According to mother, on the day of the incident, as she pulled into the driveway of the residence, Z.J. walked toward her in an aggressive manner, yelling "I'm going to fuck you up." Out of fear, mother grabbed a pocket knife from the car door and got out of the car. Z.J. came toward her and, to keep him away from her, she slashed at him with the knife.
The police interviewed E.J. who explained that mother had driven him to the residence for a visit with Z.J. N.C. was in the back seat of the car. When they arrived, Z.J. approached the car and yelled at mother. Mother got out of the car with the knife in her hand. Z.J. then walked toward mother, as if to hit her. As Z.J. and mother yelled at each other, E.J. got out of the car so that he could block N.C.'s view. E.J. was afraid that Z.J. would hurt mother.
A surveillance video of the incident showed Z.J. take a fighting stance as he approached mother's car. The video also showed Z.J. raise both of his fists as if to strike mother. Mother then pushed Z.J. away, using the hand that held the knife.
During an interview following the incident, mother told a social worker that she was involved in a family law case regarding custody of N.C. and "[didn't] have time for this drama." She explained that she had a previous domestic violence incident with Z.J. when N.C. was a baby, and repeated that she did not have time for this trouble. And when asked what she planned to do to ensure the children's safety, mother stated that she intended to file for a restraining order against Z.J.
In a subsequent interview, mother played for a social worker some of the voicemail messages that Z.J. left for her. In the messages, Z.J. yelled and threatened mother's boyfriend. Mother told the social worker about a prior incident between her and Z.J., which occurred when mother was pregnant with N.C. According to mother, following an argument with Z.J., she started to bleed as a result of stress, called 911, and Z.J. was arrested for being combative with the police when they arrived. No such arrest, however, was included in Z.J.'s criminal history report.
The social worker also spoke with E.J.'s paternal grandmother, who described mother's relationship with Z.J. as a "'love/hate relationship.'" Paternal grandmother further advised that she had seen the altercation between mother and Z.J., but did not realize that mother had a weapon. Paternal grandmother confirmed that the current incident was not the first time the two had argued in that manner.
During a follow-up interview, the social worker asked mother whether she had obtained a restraining order against Z.J. Mother responded that she had not, but that she would obtain one when she had time. But mother later informed a social worker that she did not intend to obtain a restraining order against Z.J. because she did not need one. C. Jurisdiction/Disposition Report and Hearing
During a follow-up interview with a social worker, mother denied that she and father had violent altercations in the past. She further denied that N.C. was in the car on the date of the altercation with Z.J.
A social worker interviewed Z.J., who denied trying to strike mother on the day of the incident. He claimed that he knew that N.C. was in the car during his altercation with mother because he "'heard someone say that [N.C.] was in the car, and that's when [he was] hit with the blade.'"
At the jurisdiction/disposition hearing, mother's counsel informed the juvenile court that mother would request a temporary restraining order if the court assumed jurisdiction over the children. Counsel argued that, during the incident, mother had acted in self-defense. Counsel also explained that mother did not expect Z.J. to be at paternal grandmother's house when she dropped E.J. off for a visit.
The juvenile court, however, rejected mother's argument, stating, "[I]t's not really about who started the fight and who ended the fight. It's really about whether or not there's a domestic violence relationship going on and whether or not mother was protective or not." The court then sustained all the counts, including count b-1, and declared the three children dependents of the court.
Following the juvenile court's jurisdictional ruling, mother filed a request for a restraining order against Z.J. In that request, mother swore that Z.J. had "assaulted or attempted to assault [her];" "caused, threatened, or attempted bodily injury on [her];" and "caused . . . [her] to fear physical and emotional harm." Mother further stated that "[Z.J.] has threatened to attack [mother] on several occasions. On the most recent occasion he charged her car in an aggressive manner while swinging his arms in a threatening manner as if to attack her. He has further verbally attacked and threatened her on many occasions in person as well as via phone and text."
As to disposition, the juvenile court initially indicated that mother would maintain custody of all three children. N.C.'s counsel then informed the court that N.C.'s father had physical custody of N.C., but that mother and N.C.'s father shared legal custody. After a discussion held off the record, the court indicated that "the children will stay with [mother] for now. [¶] Any and all family law orders applying to [N.C.] will be in full force and effect."
Following another discussion off the record, N.C.'s counsel advised the juvenile court: "So apparently father now has physical custody through family law court. They share legal custody. Mother has weekend visits. She's still fighting that. But apparently there is a finalized order for now at least."
The Department's attorney then suggested that the juvenile court order a shared custody arrangement between N.C.'s parents: "I'm being reminded, Your Honor, that since you have open jurisdiction right now, you can make that decision even though there's a pending family law case. And it would be superior jurisdiction to the family law court. [¶] My suggestion—and I'm sure [mother's] counsel would agree—is that you resolve this today. I would submit on a 50/50 [custody arrangement] with primary [custody] to [] mother at least that way it doesn't take anything away from [N.C.'s] father. And then the parties can thereafter go to family law court and try to modify it if they so desire."
The juvenile court rejected that arrangement explaining: "Thanks for that input, but the problem is notice. Apparently, [N.C.'s father] never got notice of today's hearing because he was supposedly whereabouts unknown. We know he cannot be whereabouts unknown if he is in family law court. All he has to do is come back here, and say, 'Hey, you've got to unwind this order. We had a hearing in family law court and never got notice of this court's hearing. And you can't just take my rights away without notice and an opportunity to be heard.' [¶] . . . [¶] [] Okay. I'll have to put [N.C.'s] father for placement of [N.C.]. And let the family law court work it out. Mother is to get whatever visits the family law court has given her with regards to [N.C.]."
Mother timely appealed from the jurisdictional and dispositional orders. D. Termination of Jurisdiction
While this appeal was pending, on January 13, 2020, the juvenile court terminated jurisdiction over all three children, finding that the conditions that justified the initial assumption of jurisdiction no longer existed. The court stayed the termination orders until the juvenile custody order hearing, which it set for January 17, 2020.
On January 17, 2020, the juvenile court lifted the stay terminating jurisdiction and released J.M. and E.J. to mother. As to N.C., the court lifted the stay terminating jurisdiction, entered a custody order, and released N.C. to parents. Our record does not include a copy of the custody order as to N.C.
We have taken judicial notice of these subsequent juvenile court proceedings and asked the parties to brief why mother's appeal should not be dismissed as moot.
II. DISCUSSION
A. Appeal as to J.M. and E.J. is Moot
"As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot. [Citation.] However, dismissal for mootness in such circumstances is not automatic, but 'must be decided on a case-by-case basis.'" (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) "[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error." (In re N.S. (2016) 245 Cal.App.4th 53, 60.) A court ordinarily will dismiss an appeal when it cannot grant effective relief, but may "exercise its inherent discretion to resolve an issue when there remain 'material questions for the court's determination' [citation], where a 'pending case poses an issue of broad public interest that is likely to recur' [citation], or where 'there is a likelihood of recurrence of the controversy between the same parties or others.'" (Id. at p. 59.) The party seeking such discretionary review, however, must demonstrate the specific legal or practical negative consequences that will result from the jurisdictional findings they seek to reverse. (In re I.A. (2011) 201 Cal.App.4th 1484, 1493.)
Mother contends that her appeal as to J.M. and E.J. is not moot because dismissal for mootness would allow the jurisdictional findings as to those children to "stand and . . . adversely affect her appeal as to [N.C.]" We disagree. The final order as to those children terminated jurisdiction and placed them in mother's custody, and she has not shown any specific legal or practical adverse consequences from the juvenile court's jurisdictional findings as to those children. Thus, there is no effective relief on appeal that we can provide mother. (See In re I.A., supra, 201 Cal.App.4th at p. 1495 [future impact on family law proceeding too "speculative"].) B. Jurisdiction over N.C.
According to mother, the final custody order granted physical custody of N.C. to her father, which may impact future family law proceedings concerning mother's relationship with N.C. We agree that on these facts, mother's appeal from the jurisdictional findings as to N.C. is not moot. (See In re Cristian I. (2014) 224 Cal.App.4th 1088, 1096, fn. 6 [appeal not moot, despite termination of juvenile court jurisdiction, because dispositional order continued to affect the mother and her appeal challenged the juvenile court's authority to make a child custody determination]; In re J.K. (2009) 174 Cal.App.4th 1426, 1431-1432 [appeal not moot as sustained jurisdictional findings had adverse effect on parent's custody rights].)
We thus review the court's jurisdictional order as to N.C. only. "'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.)
Exposure to domestic violence may support jurisdiction under section 300, subdivision (b)(1). (In re R.C. (2012) 210 Cal.App.4th 930, 941; In re E.B. (2010) 184 Cal.App.4th 568, 575-576.) "Children can be 'put in a position of physical danger from [spousal] violence' because, 'for example, they could wander into the room where it was occurring and be accidently hit by a thrown object, by a fist, arm, foot or leg . . . .'" (In re E.B., supra, 184 Cal.App.4th at p. 576.)
Mother argues there was insufficient evidence to support the jurisdictional findings under section 300, subdivision (b)(1)—failure to protect from domestic violence. Mother contends that Z.J. had never previously been violent toward her and that mother "at all times acted appropriately." We disagree with mother's claims.
Mother reported threatening voicemail messages that Z.J. left for her. She further reported calling 911 during a prior altercation with Z.J., while she was pregnant with N.C. Despite those prior incidents, when Z.J. approached mother's car (and the record supports a conclusion that N.C. was in the car), rather than drive away, mother got out of the car with a knife in hand, engaged in an argument with father, and ultimately stabbed him. Even assuming mother acted in self-defense, she declined to obtain a restraining order even after the incident, claiming that she did not need one. And, following the incident, she denied that she and Z.J. had a history of domestic violence. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge"].) Accordingly, sufficient evidence supports the jurisdictional order under section 300, subdivision (b) based on mother's failure to protect N.C. from Z.J.'s domestic violence. C. Dispositional Order as to N.C. is Moot
Mother's appeal also challenges the legal basis for the juvenile court's dispositional order as to N.C. which followed the preexisting family court order. But the subsequent order terminating jurisdiction resulted in a permanent custody order that released N.C. to both parents. As a result, the interim dispositional order as to N.C. has been supplanted by a new and different order and that new order is currently under appeal in case number B304657. Although mother claims that the dispositional order will have an adverse effect on her appeal from the final custody order, she fails to specify any legal or practical negative consequence that will result from the dispositional order. Instead, she relies on the decision in In re A.R.(2009) 170 Cal.App.4th 733. But that case, unlike here, did not involve a subsequent appeal from the juvenile court's final order terminating jurisdiction. The father in In re A.R. challenged only the jurisdictional and dispositional orders, without appealing from the final order. Because mother's subsequent appeal challenges the court's final custody order based on the facts and circumstances in existence at the time that order was entered, this case is procedurally distinct from In re A.R., and that distinction supports our conclusion that mother's appeal from the dispositional order as to N.C. is moot.
III. DISPOSITION
Mother's appeal from the jurisdictional and dispositional orders of the juvenile court as to J.M. and E.J. is dismissed as moot. Mother's appeal of the dispositional order as to N.C. is also dismissed as moot. We affirm the court's jurisdictional order as to N.C.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN, P. J.
BAKER, J.