Opinion
B324680
03-27-2024
In re B.W. et al., Persons Coming Under the Juvenile Court Law. v. I.O., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey M. Blount, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 17CCJP00643E-F Hernan D. Vera, Judge. Affirmed.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey M. Blount, Senior Deputy County Counsel, for Plaintiff and Respondent.
MARTINEZ, J.
INTRODUCTION
Mother I.O. appeals from the juvenile court's jurisdiction findings and disposition orders declaring her children, B.W. and R.H., dependents of the court and removing the children from her custody. Mother contends the evidence was insufficient to support the findings that the children were at risk of harm due to her substance abuse and mental health issues. She also contends there was insufficient evidence to justify their removal from her custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has three children: C.C. (born 2004), B.W. (born 2008), and R.H. (born 2016). When dependency proceedings began, Mother, C.C., and R.H. lived with the maternal aunt. B.W. lived with her father but often visited Mother and the siblings at the maternal aunt's home. On August 11, 2022, the Department of Children and Family Services (Department) filed a petition pursuant to Welfare and Institutions Code former section 300, subdivisions (a) and (b)(1). The petition initially included all three children but the Department amended it to exclude C.C. after she turned 18.
All undesignated statutory references are to the Welfare and Institutions Code unless otherwise specified. Section 300 was amended effective January 1, 2023, after the juvenile court issued its 2022 jurisdiction findings in this case. (Stats. 2022, ch. 832, § 1.) The amendments do not impact our analysis. We therefore cite to the current version for ease of reference.
A. Prior Dependency Proceedings
The Department received three prior referrals regarding Mother. Two were substantiated.
A July 2020 allegation of general neglect due to drug use was deemed unfounded.
A voluntary case was opened from December 27, 2013 to August 22, 2014 involving allegations that Mother attempted suicide by a car crash. She sustained bruises in the car crash and was placed on an involuntary psychiatric hold pursuant to section 5150. It was reported Mother attempted suicide 10 years before. Mother reported she used methamphetamines from June to November 2013 and had been sober for three years prior to her relapse. She last used methamphetamines two weeks before her suicide attempt. She used marijuana throughout this period because it made her feel better. Mother also reported she would hear numbers speak to her and that she was the bride of the antichrist and was going to hell. She later said she made this all up.
On August 31, 2017, Mother was brought to the emergency room because she was hearing voices. Mother reported she used methamphetamines and marijuana but not in front of the children. She was going through psychotic episodes and had not slept in a week. At the hospital, she was hitting a pillow against the bed and talking to herself.
A juvenile court case was opened from September 1, 2017 to October 9, 2019. The juvenile court sustained allegations under subdivision (b)(1) of section 300 that Mother was unable to provide regular care and appropriate supervision for C.C., B.W., and R.H. due to her mental and emotional problems as well as her substance abuse. The court also sustained failure to protect allegations against R.H.'s father.
When the court terminated its jurisdiction over the children, it issued a family law order (also known as an exit order) granting Mother legal and physical custody of R.H. and monitored visitation for R.H.'s father. The court further granted legal custody of B.W. to Mother and B.W.'s father but awarded B.W.'s father sole physical custody with supervised visits by Mother. The record indicates the court did not issue an exit order relating to C.C. Mother reported C.C.'s father was deceased. These custody orders were in place when the current proceedings were initiated in 2022.
B. Initiation of Current Proceedings
On June 11, 2022, the police responded to a report of a family disturbance when Mother and the maternal uncle engaged in a physical altercation. The police report stated Mother's "left eye looked bruised and swollen." Mother's niece (the maternal cousin) reported to the officer that she observed Mother verbally provoking the maternal uncle and they shoved each other. The officer found probable cause to arrest the maternal uncle for battery. The police report noted Mother did not display any indication she suffered from a mental illness.
On August 11, 2022, the Department filed a petition under section 300, subdivisions (a) and (b), as to C.C., B.W., and R.H. The a-1 and b-1 counts alleged C.C. and R.H. suffered or were at substantial risk of suffering serious physical harm due to Mother's altercation with the maternal uncle and Mother's failure to protect them. B.W. was not present during the incident. The petition also alleged Mother was incapable of providing the children with regular care and supervision due to her substance abuse (b-2 count) and her mental and emotional problems (b-3 count). The b-4 and b-5 counts alleged R.H.'s father and B.W.'s father, respectively, and Mother endangered the children by violating the previous court's monitored visitation orders. The petition was later amended to add counts b-6 and g-1, both alleging R.H.'s father was unwilling to provide care for R.H.
Mother reported to the children's social worker that she, C.C., and R.H. lived with the maternal aunt. The maternal uncle did not live there but often visited to bathe because he lived in a van. The maternal aunt also allowed him to store his belongings in the back of the house. Mother stated she argued with the maternal uncle after he accused her of touching his belongings. At some point, he pushed her, and she fell to the floor. Mother denied sustaining any injuries from her fall or from the argument. She stated her eye was injured when she hit her face on the side of the bunk bed a few days beforehand. Mother indicated the maternal uncle was released hours after the incident and no criminal charge was filed against him. She acknowledged C.C. and R.H. were home at the time of the incident but asserted they were in the bedroom and did not witness it.
The maternal aunt reported she took the children in when they were removed from Mother during the previous dependency proceeding. She wanted what was best for the children. The maternal aunt believed Mother often saw herself as the victim and used her mental health as an excuse to gain sympathy. The children's needs were primarily met by C.C. and the maternal aunt.
In a subsequent interview, the maternal aunt reported she asked Mother to move out, but Mother refused, and the aunt began eviction proceedings. The maternal aunt wanted C.C. and R.H. to continue living with her. By the time of the jurisdiction hearing, Mother had moved out and was homeless.
The maternal aunt disclosed she and C.C. had discussed C.C. living with her once she turned 18. Mother, on the other hand, wanted C.C. to move to Tijuana, Mexico with her and R.H. so C.C. could care for R.H. When C.C. refused, Mother became upset and broke C.C.'s cell phone.
The children's social worker interviewed each child separately. All three reported a good relationship with Mother, the maternal uncle, and the maternal aunt. R.H. described Mother as "'the best mom, so nice'" because she took care of him and was funny. C.C. described Mother as "overall good."
C.C. and R.H. confirmed they were in the bedroom during the incident but C.C. went to the living room when she heard a commotion. She observed Mother provoking the maternal uncle. At some point, Mother grabbed his shirt and he pushed her face back, causing her to fall on the floor. C.C. stated, "'It's my mom that always causes trouble. That's just how she is. She has it in her head that my uncle said some things about her in the past and she won't let go of it. It's like she wants him to get in trouble.'"
C.C. stated she was able to take care of herself and would turn 18 soon. She indicated R.H., then six years old, was young and still required supervision and care, which was primarily provided by the maternal aunt. C.C. explained that when she and R.H. were returned to Mother's care after the prior dependency proceedings, it was under the condition Mother continue to live with the maternal aunt. B.W. described the maternal aunt as "always nice and like a mom."
C.C., B.W., and the maternal aunt knew of Mother's past struggles with her mental health and substance abuse but believed they were no longer issues for Mother.
Upon the Department's request, Mother agreed to a drug test and tested positive for amphetamines and methamphetamines on July 28, 2022. Mother blamed her relapse on the stress of the Department's investigation. On August 8, 2022, the juvenile court issued orders removing the children from Mother's custody: C.C. was placed in foster care, B.W. remained with her father, and R.H. was placed with his father.
Approximately 10 days after R.H. was placed in his home, R.H.'s father informed the children's social worker he was unable to keep R.H. with him. On August 19, 2022, R.H.'s father called the maternal aunt to pick up R.H, and thereafter asked to be taken off the case, refused further contact with the Department and the maternal aunt, and ignored their calls. The court granted the Department discretion to place R.H., and the Department approved R.H.'s placement with the maternal aunt.
C. Jurisdiction and Disposition Report
The Department filed a Jurisdiction and Disposition Report on September 21, 2022 disclosing, among other things, more recent statements by Mother, the children, and the maternal cousin regarding Mother's mental health and substance abuse.
1. Mother's Statement
Mother began using marijuana when she was 12 years old and alcohol when she was 15 years old. She used marijuana daily and methamphetamine off and on depending on what she was going through. Her alcohol and drug use became a problem in 2012 when she became suicidal. Mother admitted she used methamphetamine in July 2022 in her car outside of the maternal aunt's home while the children were inside. She acknowledged she had no excuse for relapsing.
Mother reported she was diagnosed with unspecified psychosis in 2012 and mental health professionals were leaning toward a diagnosis of schizophrenia because she heard voices. Mother said she started taking medication in 2018 but she still heard voices. When the dependency investigator urged her to report hearing voices, Mother responded, "Okay." Mother met with her psychiatrist regularly and participated in individual counseling once per month. She last saw her psychiatrist in June 2022 and her next appointment was September 13, 2022.
Mother's therapist confirmed she saw Mother approximately once every month and Mother seemed to be consistent with her treatment and medication.
2. The Children's Statements
All three children were aware of Mother's mental health struggles and substance abuse issues.
On August 9, 2022, 18-year-old C.C. disclosed she noticed Mother had become paranoid over the past two years. C.C. initially thought it was due to Mother's mental health issues but now believed it was due to Mother's drug use. C.C. observed Mother exhibit various symptoms, such as "'paranoia, talking to herself, hearing voices and aggression.'" C.C. stated Mother always struggled with her mental health but C.C. believed Mother was currently stable because she was on medication and met with her therapist.
Fourteen-year-old B.W. believed Mother had been "clean" for five years and relapsed only after the children's social worker came to the home to investigate the most recent allegations. B.W. further believed Mother was bipolar but had been taking her medication. B.W. reported Mother told her she was hearing voices again but B.W. did not recall what Mother said the voices were saying. B.W. denied she ever heard Mother say she wanted to hurt herself or anyone else. When asked what she would change about Mother, B.W. answered, "'That she owns up to what she has done. She always thinks she's the victim and doesn't take accountability for her actions.'"
B.W. reported the maternal aunt was primarily responsible for her care when she previously lived with Mother but B.W. decided she wanted to live with her father because "[it's] better over here."
Six-year-old R.H. confirmed he knew what drugs were, explaining, "you take them and they are not good for kids." He denied knowing what type of drugs Mother uses. R.H. believed Mother used drugs because C.C. said she had seen her taking drugs. R.H. understood Mother had started to use drugs again right before he was sent to live with his father and "[t]hat's why we had to get out of the house." He denied that Mother smoked or drank.
R.H. reported the maternal grandmother, C.C., the maternal aunt, and the maternal cousin had cared for him since he was a baby while Mother "only took drugs and went to sleep." He observed that Mother slept a lot. Mother was "lazy to make food for herself. She wanted [C.C.] to make her food and take her something to drink."
R.H. further reported he knew Mother had heard voices for a long time, she used bad words, and talked to the voices. He would ask Mother if she was talking to herself but "she says that she is hearing voices and not to worry about it."
3. The Maternal Cousin's Statements
The maternal cousin believed Mother was using drugs. Approximately one year before, Mother called the police on the maternal cousin and told them the cousin hit her, causing her to lose consciousness. After that incident, Mother confirmed to the cousin she was using drugs. The cousin called her mother (the maternal aunt) to discuss her suspicions.
The cousin described Mother as being more attentive and responsive to her children when she was sober. Otherwise, she "would just be mad," throw her kids in the car, and "zoom away." Mother slept all day and stayed up all night, and she yelled at her children. The maternal cousin confirmed she, the maternal aunt, and C.C. would cook for B.W. and R.H., not Mother. Mother made C.C. clean up and cook and kept C.C. from going to college.
The maternal cousin recalled Mother reported hearing voices after she gave birth to R.H. and was placed on a psychiatric hold because she was a danger to herself. Neither R.H.'s father nor B.W.'s father had any insight into Mother's drug use or mental health.
D. Jurisdiction and Disposition
The juvenile court held the jurisdiction and disposition hearing on September 21, 2022 and sustained the following allegations:
b-2 "The children['s] . . . mother, [I.O.], has a history of substance abuse including methamphetamine and alcohol and is a current abuser of amphetamine and methamphetamine, which renders the mother incapable of providing the children with regular care and supervision. On 7/28/22, the mother had a positive toxicology screen for amphetamine and methamphetamine. The child [R.H.] is of such young age requiring constant care and supervision and the mother's substance abuse interferes with providing regular care and supervision of the child. The children . . . were prior dependents of the Juvenile Court Services due to the mother's substance abuse. The mother's substance abuse endangers the children's physical health and safety, and places the children at risk of serious physical harm, damage, and danger."
b-3 "The children['s] . . . mother, [I.O.], has mental and emotional problems including diagnoses of unspecified psychosis, auditory hallucinations, depression and suicidal ideation and has exhibited paranoid and aggressive behavior, which renders the mother unable to provide regular care and supervision of the children. On prior occasions, the mother was involuntarily hospitalized for the mother's mental and emotional problems. The mother failed to take the mother's psychotropic medication as prescribed. The children . . . were prior dependents of the Juvenile Court Services due to the mother's mental health problems. Such mental and emotional problems on the part of the mother endangers the children's physical health and safety, creates a detrimental home environment and places the children at risk of serious physical harm, damage, and danger."
The juvenile court additionally sustained the following b-6 allegation that applied only to R.H. and his father: "The child [R.H.]'s father [D.H.] is unable to provide the child with ongoing care and supervision. Such inability on the part of the father to provide the child with ongoing care and supervision endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger." The court struck the remaining allegations.
At disposition, the Department requested the court close the matter for B.W. with a custody order that she continue to live with her father. The Department further requested the court remove R.H. from the parents, and order Mother to comply with a full drug program with testing, to complete parenting classes, to participate in individual counseling, and to undergo a psychological assessment. The Department also requested monitored visits with both parents. Minor's counsel joined in the Department's request, additionally requesting counseling for R.H.
Mother's counsel noted "Mother's objection to the removal of both of the children" and requested unmonitored visits. She also requested the court strike the parenting classes requirement as well as the psychological assessment. The Department agreed on the condition Mother's current psychiatrist provide a report. B.W.'s father concurred with closing the case as to B.W. but requested sole legal custody. R.H.'s father requested unmonitored visits and no reunification services for him but otherwise agreed to the case plan proposed by the Department.
As to B.W., the juvenile court maintained the existing custody arrangement; it awarded joint legal custody to the parents, sole physical custody to B.W.'s father, and monitored visits for Mother. The court then indicated it would terminate jurisdiction as to B.W., finding the conditions which justified the initial assumption of jurisdiction no longer existed. The order terminating jurisdiction and granting custody and visitation as described above was filed on September 29, 2022.
As to R.H., the juvenile court removed him from the custody of both parents and ordered family reunification services be provided. The court found by clear and convincing evidence that R.H.'s return to either parent would create a substantial risk of detriment to him. The court based its findings on Mother's positive drug test plus her recent mental health episodes that affected her parenting and R.H.'s father's inability to care for him. By the time of the jurisdiction and disposition hearing, R.H. was living with the maternal aunt and Mother had moved out.
Mother timely filed a notice of appeal on October 5, 2022 challenging the jurisdiction findings, disposition order, and termination order. Neither R.H.'s father nor B.W.'s father appealed. B.W.'s father subsequently requested appointment of counsel to protect his interests because Mother's appeal potentially impacted his rights. We granted the request and he filed a letter joining in the Department's brief urging this court to affirm the juvenile court's orders.
On April 13, 2023, Mother appealed from the juvenile court's section 366.21 order continuing its jurisdiction over R.H. and removal from Mother's custody in In re R.H. (Apr. 13, 2023), No. B328561. That appeal was dismissed pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, 838.
DISCUSSION
On appeal, Mother requests reversal of the juvenile court's jurisdiction findings and disposition orders. We separately consider the court's findings and orders as they relate to each child because 14-year-old B.W., who resides with her father (the nonoffending custodial parent) and over whom the court has terminated its jurisdiction, presents very different circumstances from six-year-old R.H., who has been removed from both parents, resides with the maternal aunt, and continues to be the subject of an open dependency case.
Mother notes in passing in her appellate briefs that the evidence does not support the court's order for monitored visitation as to either child. Yet, Mother does not present any legal or factual arguments on appeal that that part of the disposition order was erroneous; she focuses on whether removal of the children was improper. We thus consider any argument regarding the court's monitored visitation order to be forfeited. (See In re Daniel M. (2003) 110 Cal.App.4th 703, 707, fn. 4. [failure to raise issue in appellate brief results in forfeiture of issue on appeal].) On our own motion, we take judicial notice of the juvenile court's March 22, 2023 order modifying Mother's visitation with R.H. to unmonitored day visits in a neutral setting. (See Evid. Code, §§ 452, subds. (c)-(d), 459.) To the extent Mother contends it was error to order monitored visitation for R.H., that argument is now moot. (See In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).)
A. B.W.
1. Substantial Evidence Supports the Jurisdiction Findings
We first address whether substantial evidence supports the jurisdiction findings regarding Mother's substance abuse and mental health problems. We conclude there is sufficient evidence that Mother's continued mental health issues and substance abuse presented a substantial risk of harm to B.W. at the time of the jurisdiction hearing.
Although jurisdiction over B.W. has been terminated, Mother's appeal of the jurisdiction findings is not moot because Mother's notice of appeal includes the court's termination order and the findings serve as the basis for that order. (See D.P., supra, 14 Cal.5th at pp. 276-277; see also In re Gael C. (2023) 96 Cal.App.5th 220, 225; In re Rashad D. (2021) 63 Cal.App.5th 156, 159.)
a. Applicable law and standard of review
Section 300, subdivision (b)(1)(D), authorizes the juvenile court to assume jurisdiction 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 inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse."
A jurisdiction finding under section 300, subdivision (b)(1)(D), requires evidence that "(1) substance abuse [or mental illness] (2) makes a parent or guardian unable to provide regular care for a child and (3) this inability has caused the child to suffer serious physical harm or illness or creates a substantial risk of such harm or illness." (In re N.R. (2023) 15 Cal.5th 520, 558 (N.R.); see In re R.T. (2017) 3 Cal.5th 622, 624 (R.T.) ["section 300(b)(1) authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child"].) "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." (In re Cole L. (2021) 70 Cal.App.5th 591, 601-602 (Cole L.).) "A parent's '"[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.'" (Id. at p. 602; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1048.)
We review the juvenile court's jurisdiction findings for substantial evidence in light of the whole record. (See In re I.C. (2018) 4 Cal.5th 869, 892; R.T., supra, 3 Cal.5th at p. 633 ["'In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them.'"].) Substantial evidence is "evidence which is reasonable, credible, and of solid value." (In re I.C., at p. 892; accord, Cole L., supra, 70 Cal.App.5th at p. 602.) "'[W]e 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.'" (R.T., at p. 633; Cole L., at p. 602 ["while substantial evidence may consist of inferences, any inferences must rest on the evidence; inferences based on speculation or conjecture cannot support a finding"].) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re E.E. (2020) 49 Cal.App.5th 195, 206; accord, In re D.B. (2018) 26 Cal.App.5th 320, 328-329.)
b. Analysis
Mother argues substantial evidence does not support the jurisdiction findings because there was insufficient evidence Mother presented a current risk of harm to the children. Mother asserts the juvenile court's findings were based solely on her past substance abuse and mental health issues. According to Mother, the Department failed to demonstrate her one-time relapse was sufficient to support the substance abuse finding. Mother also argues she was managing her mental health appropriately through monthly therapy, regular psychiatric appointments, and consistent medication.
Mother presents an incomplete picture of the record. The evidence demonstrates Mother suffered from mental health and substance abuse problems that presented a risk of harm to B.W. at the time of the jurisdiction hearing.
Mother admitted to hearing voices but did not disclose this to her mental health care providers. When the dependency investigator explained it was very important for her to tell her psychiatrist she was still hearing voices, Mother responded, "Okay." C.C. observed Mother exhibit symptoms of "paranoia, talking to herself, hearing voices and aggression." R.H. and B.W. likewise knew Mother heard voices.
Mother was aware hearing voices could precipitate a psychotic episode; she was hospitalized for hearing voices in 2017 and in 2013 when she attempted suicide and reported hearing numbers speak to her. Yet, she displayed no urgency when she was told she needed to disclose hearing voices to her providers. When R.H. asked Mother about hearing voices, she told him "not to worry about it." Under these circumstances, Mother did not fully and appropriately manage her mental health issues.
Further, Mother tested positive for methamphetamines two months prior to the jurisdiction hearing. Mother reported she uses marijuana consistently but uses methamphetamine off and on, depending on "what [she's] going through throughout the years." Mother acknowledged her most recent relapse was due to the "negativity" resulting from the Department's investigation and what she felt was a lack of support.
The evidence also shows Mother's substance abuse or mental illness made her unable to provide regular care for the children. Throughout the proceedings, the maternal aunt, C.C., B.W., and R.H. reported Mother did not provide care for the children. C.C. indicated the maternal aunt was "typically the one to provide most of the care and guidance" to the children. C.C. explained the previous juvenile court conditioned the return of the siblings to Mother's custody on Mother residing with the maternal aunt. B.W. and R.H. confirmed the maternal aunt was primarily responsible for their care. R.H. further observed Mother required C.C. to make her food and bring it to her. R.H. and the maternal cousin noted Mother mostly slept and stayed in her room. This is substantial evidence that Mother's substance abuse and inadequately treated mental health issues rendered her unable to provide regular care for B.W., creating a substantial risk of harm.
We reject Mother's argument that the maternal aunt's support is evidence the children were not at substantial risk of harm in Mother's care. This fact cuts against Mother; it demonstrates that it is the maternal aunt, not Mother, who provides regular care for the children.
Mother relies on In re Drake M. (2012) 211 Cal.App.4th 754 (Drake M.) and In re L.W. (2019) 32 Cal.App.5th 840, but those cases do not support her position. Mother cites these cases for the proposition that drug use, without more, is insufficient to support jurisdiction under section 300, subdivision (b)(1). But as set out above, Mother's drug use was not the sole reason for the court's order. Jurisdiction was properly asserted over B.W., not only because Mother tested positive for methamphetamines but also because Mother's mental health issues and her inability to provide regular care for the children, combined with her positive test and her use of drugs, created a substantial risk of harm to B.W.
Drake M., supra, 211 Cal.App.4th 754 has been disapproved by the California Supreme Court on a number of grounds. In N.R., supra, 15 Cal.5th at pages 550, 557, the high court disapproved Drake M.'s interpretation of the term "substance abuse" and its tender years presumption. In D.P., supra, 14 Cal.5th at page 283, the court disapproved Drake M. for the proposition that discretionary review of a moot appeal is appropriate where jurisdiction findings serve as a basis for disposition orders. The court held that an appeal is not moot under those circumstances. (Ibid.)
2. Mother Forfeited Her Challenge to the Removal of B.W., but Even If the Issue Were Preserved the Termination of Jurisdiction Moots Mother's Appeal From the Disposition Order
Mother next challenges the juvenile court's disposition order removing B.W. from her custody under section 361, subdivision (c)(1), only. As an initial matter, it is unlikely the juvenile court relied on section 361, subdivision (c), to remove B.W. from Mother, a noncustodial parent. The disposition order cited to section 361, subdivisions (a)(1), (c), and (d), as well as section 362, subdivision (a), as grounds for its removal of B.W. from Mother. The court further noted it applied "to noncustodial parent(s)/legal guardian(s) the constitutional and statutory safeguards available to custodial parents," indicating it understood there were differences between custodial and noncustodial parents.
Section 361, subdivision (c)(1), does not apply here because it only affects custodial parents and Mother is a noncustodial parent with respect to B.W. B.W.'s father retained sole physical custody and B.W. resided with him during the entirety of these proceedings. (§ 361, subd. (c) ["A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated."]; In re Dakota J. (2015) 242 Cal.App.4th 619, 628 ["the statute does not contemplate that a child could be removed from a parent who is not living with the child at the relevant time"].)
The other statutes cited by the juvenile court-section 361, subdivisions (a)(1) and (d), and section 362, subdivision (a)-are not limited only to custodial parents. Mother, however, does not address whether removal was proper under these statutes and has thus forfeited the issue. (Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 653 ["An appellant abandons an issue by failing to raise it in the opening brief."].) We affirm the disposition order under these circumstances.
In all events, Mother's appeal from the disposition order is moot because the juvenile court's exit order superseded it. (See Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1165 ["the exit order 'shall be a final judgment and shall remain in effect after [the juvenile court's] jurisdiction is terminated'"]; see also § 362.4, subd. (b) [custody and visitation orders "continue until modified or terminated by a subsequent order of the superior court"].) The disposition order no longer adversely affects Mother. So even if the issue were not forfeited, we would be unable to grant Mother any effective relief and would dismiss that part of the appeal as moot. (See D.P., supra, 14 Cal.5th at pp. 276-277.)
B. R.H.
1. Jurisdiction Was Appropriate Based on the Allegations Against R.H.'s Father
The juvenile court's jurisdiction over R.H. is supported by the sustained allegations against R.H.'s father, who did not appeal from those findings or orders. "As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings." (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) Thus, "we need not address jurisdictional findings involving one parent where there are unchallenged findings involving the other parent." (In re Briana V. (2015) 236 Cal.App.4th 297, 309; accord In re Janet T. (2001) 93 Cal.App.4th 377, 392 ["in normal circumstances a finding against one parent is a finding against both in terms of the child being adjudged a dependent"].)
In any event, the jurisdiction findings as to R.H. are supported by substantial evidence, as we have set out above with regard to his sister B.W. Indeed, the evidence even more strongly supports a finding of risk of harm to R.H. due to his age. (N.R., supra, 15 Cal.5th at p. 559 ["a child's youth and maturity level can bear upon the care that the child may require and whether a parent's or guardian's substance abuse places the child at substantial risk of serious physical harm. Courts can properly take these facts regarding a child into account, together with all other relevant evidence, in deciding whether the government has met its burden at the jurisdictional stage"].)
2. Removal Was Supported by Substantial Evidence
Unlike with B.W., Mother has not forfeited her challenge to R.H.'s removal. Nor is her appeal from R.H.'s disposition order moot since jurisdiction over R.H. was not terminated. Accordingly, we consider whether R.H.'s removal was proper.
a. Applicable law and standard of review
"When the court has found jurisdiction under section 300, it then must conduct a disposition hearing." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; § 358, subd. (a) ["After finding that a child is a person described in Section 300, the court shall hear evidence on the question of the proper disposition to be made of the child."].) A disposition hearing determines "'where the child will live while under the court's supervision.'" (In re A.S. (2011) 202 Cal.App.4th 237, 247, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 (O.B.).)
"Under section 361, subdivision (c)(1) children may not be removed from their home 'unless the juvenile court finds clear and convincing evidence' of a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being 'and there are no reasonable means' for protecting the children other than removal from their home. The statute 'is clear and specific: Even though children may be dependents of the juvenile court, they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no "reasonable means" by which the child can be protected without removal.'" (In re Ashly F. (2014) 225 Cal.App.4th 803, 809; see § 361, subd. (c)(1); In re I.R. (2021) 61 Cal.App.5th 510, 520 (I.R.).)
"'A removal order is proper if it is based on proof of (1) parental inability to provide proper care for the minor and (2) potential detriment to the minor if he or she remains with the parent.' [Citations.] It is not required that the parent be dangerous or that the child have been harmed before removal is appropriate. [Citation.] 'The focus of the statute is on averting harm to the child.'" (In re D.D. (2019) 32 Cal.App.5th 985, 996.) "'"The court may consider a parent's past conduct as well as present circumstances."'" (In re A.F. (2016) 3 Cal.App.5th 283, 292.)
"'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.'" (I.R., supra, 61 Cal.App.5th at p. 520; accord O.B., supra, 9 Cal.5th at pp. 1011-1012.) "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." (O.B., at pp. 1011-1012.)
b. Analysis
Mother argues the Department failed to make reasonable efforts to prevent or eliminate the need for removal of R.H. from her custody. According to Mother, the court could have ordered R.H. to remain in her custody "conditioned on residing in the maternal aunt's home, consisten[tly] testing clean, and continuing to participate in the mental health treatment she was already receiving." Mother's proposal ignores that the maternal aunt evicted Mother from her house and did not want to live with Mother. Mother otherwise does not assert she is able to safely care for R.H. without the maternal aunt's help. Mother has failed to meet her burden on appeal to demonstrate there is no substantial evidence to support the disposition order removing R.H. (See In re E.E., supra, 49 Cal.App.5th at p. 206.)
In any case, the same facts supporting dependency jurisdiction, set out in our discussion involving B.W., support the court's findings on removal as to R.H. (§ 361, subd. (c)(1).) Taking into account the clear and convincing standard of proof, the record provides substantial evidence R.H. faces substantial danger to his physical and emotional well-being if left in Mother's care given her inadequately treated mental health issues, her drug use when faced with hardship, and her demonstrated inability to provide regular care for the children.
DISPOSITION
The jurisdiction findings and disposition orders as to B.W. and R.H. are affirmed.
We concur: SEGAL, Acting P. J. FEUER, J.