Opinion
B307335
03-26-2021
In re MALLORY G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.G., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 20CCJP01694A) APPEAL from orders of the Superior Court of Los Angeles County. Debra Losnick, Judge. Reversed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
____________________
L.G. (Father) challenges the juvenile court's assertion of jurisdiction over his daughter, Mallory G., under Welfare and Institutions Code section 300, subdivision (b). The juvenile court found Father has substance abuse issues that render him incapable of providing regular care for the child. Because there is insufficient evidence showing Father's issues caused, or created a substantial risk of causing, serious physical harm to Mallory, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2020, DCFS received a referral alleging Father is an alcoholic, does not keep food in the house, and cusses at his children when he drinks, including calling 13-year-old Mallory a "bitch." According to the reporting party, Father also tried to get Mallory to go with him to get a pizza, but she refused because he was drunk. At the time, Mallory was living with Father, her 18-year-old brother, Perry, and Father's girlfriend. Mallory's mother died in 2018.
During an investigation by the Los Angeles County Department of Children and Family Services (DCFS), Father said he suspected maternal grandmother was the reporting party, and he accused her of trying to tear the family apart.
Father said he will drink a beer or two when he is watching sports, or after finishing his chores, but he does not drink to the point of intoxication. He admitted using profanity when he drinks, but he denied directing it at his children. Father also denied driving under the influence of alcohol. He said he is a truck driver, which requires he hold a Class A driver's license, and he would never risk that license by driving under the influence of alcohol. Father agreed to drug test for DCFS.
According to Mallory, when Father drinks, he gets sleepy and quiet, and he is never aggressive. She did not think he has a drinking problem. Mallory said Father has never referred to her using a profanity, although he would sometimes use profanity around her.
As to the pizza incident, Mallory said she did not want to go with Father because he was acting "funny." She clarified that he was "not that drunk." Mallory also said Father had previously picked her up from school while he was drunk. During a subsequent interview, however, she said she did not actually know whether he was drunk.
Mallory said there is always enough food to eat, and she feels safe at home. According to the social worker, Mallory did not have any visible marks or bruises, and she was well groomed. The social worker also reported that Father's home was organized and clean, with plenty of food available.
Perry believed Father has a drinking problem, but he did not know how many drinks Father would have at one time. Perry said Father does not become physically aggressive when he drinks, but he does use profanity. He denied that Father directs the profanity at Mallory.
Perry said Father once drove him while drunk, but he drove normally and was not swerving. Perry could not articulate how he knew Father was intoxicated. According to Perry, Mallory told him that Father once drove her while drunk.
Maternal grandmother said she was concerned about Father's drinking, but she did not know how much or how often he drinks. She said he calls Mallory and Perry names when he drinks.
A family friend claimed Father has a history of "extreme alcoholism," although she had never seen him drunk. She had overheard Father yelling at maternal grandmother over the phone. She had also heard Father cuss at the children and refer to them using profanities. The family friend had not had contact with Father since Mallory's mother passed away.
A DCFS social worker held a Child and Family Team (CFT) meeting at Father's home on March 17, 2020. Father told the social worker he drank a couple beers before the meeting, and part way through the meeting he began drinking another beer. The social worker believed Father was under the influence of alcohol.
During the meeting, Mallory was biting her shirt sleeve and seemed nervous. Father yelled at her to take the sleeve out of her mouth. He also raised his voice at Mallory when she declined to show the social worker her back and torso as part of a wellness check.
At one point, Father told the social worker that Perry "just wants to run on the streets." This angered Perry, and he charged towards Father. Father stood up but remained calm, and he tried to soothe Perry. Father did not raise his voice or lunge at Perry. Perry eventually went to his room.
About a week after the CFT meeting, the court authorized removal of Mallory from Father's custody. Later that day, Father left a voicemail for the DCFS social worker in which he called her a "bitch." Father left another voicemail for the social worker the next day, and he repeatedly referred to her as a "bitch" and used other profanities. According to the social worker, Father's speech was slurred.
DCFS filed a petition asserting Mallory is a person described by Welfare and Institutions Code section 300. The petition alleged two counts under subdivision (b)(1). Count b-1 alleged Father "has a history of substance abuse and is a current abuser of alcohol which renders the father incapable of providing regular care for the child. On 03/17/20 and prior occasions, the father was under the influence of alcohol while the child was under the father's care and supervision. Said substance abuse by the father endangers [Mallory's] physical health and safety and places the child at risk of serious physical harm, damage, danger, and failure to protect."
All further undesignated statutory references are to the Welfare and Institutions Code unless otherwise noted.
Count b-2 alleged Father "placed [Mallory] in a detrimental and endangering situation in that the father drove a car while under the influence of alcohol with the child as a passenger in the car."
Following a detention hearing, the court released Mallory to Father's home on the condition that he not drink alcohol. DCFS subsequently reported that Mallory was doing well under Father's care, and there were no concerns about her immediate safety or Father's ability to protect her. Father had tested negative on six drug tests, and he was a "no show" for four tests. Father had also recently enrolled in family preservation services, although he refused to participate in other services unless ordered by the court.
The court held a combined jurisdiction and disposition hearing on August 21, 2020. Father testified that he had not consumed alcohol since instructed by the court, and he denied abusing any other substances. He also denied ever driving Mallory after drinking.
Father claimed he told the social worker prior to the March CFT meeting that he would drink a beer during the meeting. Father's thinking was that he could show her how he interacts with his children while drinking.
The court sustained count b-1 with minor amendments, explaining only that "[t]here is a factual basis contained in the reports that I've read today for these findings." The court dismissed count b-2—which alleged Father drove Mallory while he was under the influence of alcohol—noting there was insufficient evidence to support it. As to disposition, the court declared Mallory a dependent of the court, placed her in Father's home, and ordered Father participate in services.
Father timely appealed.
DISCUSSION
I. Mootness
While this appeal was pending, the juvenile court terminated its jurisdiction over Mallory and released her to Father. In response to our request for supplemental briefing, DCFS urges us to dismiss the appeal as moot. Father, in turn, insists we should decide his appeal on the merits because it could negatively affect him in the future.
On our own motion, we take judicial notice of the juvenile court's February 22, 2021 minute order.
"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 (C.C).) As the court explained in In re Joshua C. (1994) 24 Cal.App.4th 1544, the "fact that the dependency action has been dismissed should not preclude review of a significant basis for the assertion of jurisdiction where exercise of that jurisdiction has resulted in orders which continue to adversely affect appellant . . . . Moreover, refusal to address such jurisdictional errors on appeal by declaring the case moot has the undesirable result of insulating erroneous or arbitrary rulings from review." (Id. at p. 1548.)
Here, Father contends the juvenile court's jurisdictional findings may cause him to suffer future negative consequences. Among other things, he argues the findings may affect future dependency proceedings and result in his name being included in the Child Abuse Central Index. (See § 361.3, subd. (a)(5) [in determining whether a removed child should be placed with a relative, the court must consider whether the relative has been responsible for acts of neglect]; Pen. Code, § 11170, subd. (a) ["The Department of Justice shall maintain an index of all reports of child abuse and severe neglect submitted pursuant to Section 11169."].) According to Father, his inclusion in the index would preclude him from volunteering for his child's sports and school activities. Moreover, an order dismissing the appeal as moot would bar him from ever challenging his inclusion in the index. (Pen. Code, § 11169, subds. (d) & (e).)
The adverse collateral effects Father fears may be speculative at the moment. (See Pen. Code, § 11169, subd. (c) [reporting agency must notify the known or suspected child abuser that he or she has been reported to the index].) However, out of an abundance of caution, we will consider the merits of his appeal. (See C.C., supra, 172 Cal.App.4th at p. 1489 [exercising discretion to consider an otherwise moot appeal despite the prejudice being "highly speculative" because "dismissal of the appeal operates as an affirmance of the underlying judgment or order"].)
II. The Juvenile Court Erred in Sustaining the Petition
Father contends there is insufficient evidence to support the juvenile court's finding that Mallory is a person described by section 300, subdivision (b). We agree.
" '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 . . . of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.' " (In re R.T. (2017) 3 Cal.5th 622, 633.)
Under section 300, subdivision (b), the juvenile court may exercise jurisdiction over a child when 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 or guardian to adequately supervise or protect the child, . . . or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's . . . substance abuse." (§ 300, subd. (b)(1).)
In re David M. (2005) 134 Cal.App.4th 822 (David M.) is instructive. In that case, the mother tested positive for marijuana at the time of her child's birth, but the child was completely healthy and tested negative for drugs. (Id. at p. 826.) The juvenile court asserted jurisdiction over the child and a sibling under section 300, subdivision (b)(1), in part based on allegations regarding the mother's substance abuse. The appellate court reversed, explaining that, although the mother seemed to have substance abuse issues, there was no evidence showing those issues caused, or created a substantial risk of causing, serious harm to the children. The court explained: "Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative." (David M., supra, at p. 830.)
Disapproved of on other grounds by In re R.T. (2017) 3 Cal.5th 622.
The same is true here. Although there is considerable evidence indicating Father had unresolved substance abuse issues, there is insufficient evidence showing those issues caused, or created a substantial risk of causing, serious physical harm to Mallory. Instead, the uncontradicted evidence shows Mallory was physically healthy and well cared for, and Father was raising her in a clean home with plenty of food, in which she felt safe. (See In re Destiny S. (2012) 210 Cal.App.4th 999, 1004 [jurisdiction based on the mother's drug use was improper where the undisputed evidence showed the home was neat and clean, there was adequate food, and the child had no behavioral or discipline issues].)
DCFS insists jurisdiction was appropriate based on the evidence showing Father's alcohol use resulted in "hostile, aggressive, and bullying behavior," including raising his voice at his children, using profanity in their presence, and leaving threatening voicemails for the social worker. We do not disagree that Father's behavior was troubling and inappropriate. However, as the court explained in In re Jesus M. (2015) 235 Cal.App.4th 104, "we are repeatedly called on to review jurisdictional findings where . . . one parent has behaved badly, undeniably causing family trauma, but presents no obvious threat to the children's physical safety." (Id. at p. 112.) This is one of those cases.
It is not enough, as DCFS seems to suggest, that Father's conduct may have caused Mallory to suffer emotional harm. " 'Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.' " (In re Alysha S. (1996) 51 Cal.App.4th 393, 399.) That a child may be emotionally harmed does not provide a basis for jurisdiction under section 300, subdivision (b). (In re Daisy H. (2011) 192 Cal.App.4th 713, 718; In re Jesus M., supra, 235 Cal.App.4th at p. 112.)
Section 300, subdivision (c) permits the court to take jurisdiction over a child who is "suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care." DCFS did not allege emotional abuse under section 300, subdivision (c), nor does it argue jurisdiction was proper under that subdivision.
We are also not persuaded by DCFS's passing suggestion that jurisdiction was warranted based on the evidence showing Father had driven and attempted to drive Mallory while intoxicated. The juvenile court did not assert jurisdiction over Mallory based on such evidence. Rather, it asserted jurisdiction under count b-1, which specifically alleged Father's substance abuse rendered him "incapable of providing regular care" for Mallory. The court, moreover, dismissed for lack of evidence count b-2, which alleged Father drove Mallory while under the influence of alcohol. Accordingly, we decline to consider whether the juvenile court could have asserted jurisdiction based on evidence showing Father had driven and attempted to drive Mallory while intoxicated. (See In re Jesus M., supra, 235 Cal.App.4th at p. 113 [declining to consider evidence of domestic violence where the juvenile court expressly disavowed such evidence as the basis for asserting jurisdiction].)
Because we reverse the jurisdictional findings and dispositional orders, we need not consider Father's contention that DCFS and the court failed to comply with the Indian Child Welfare Act.
DISPOSITION
The jurisdictional and dispositional orders are reversed.
BIGELOW, P. J. We concur:
GRIMES, J.
WILEY, J.