Opinion
B297750
04-21-2020
In re J.J. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Z.C.-J. et al., Defendant and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Appellant Z.C.-J. Linda Rehm, under appointment by the Court of Appeal, for Appellant R.J. Mary C. Wickham, County Counsel, Kristine P. Miles, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. Nos. 18CCJP07321A-C) APPEAL from orders of the Superior Court of Los Angeles County, Craig S. Barnes, Judge. Affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Appellant Z.C.-J. Linda Rehm, under appointment by the Court of Appeal, for Appellant R.J. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel for Plaintiff and Respondent.
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Appellate counsel for the Department of Children and Family Services (Department) regularly urges us not to reach the merits of a parent's appeal where a jurisdictional finding was also sustained against the other parent. This case stands as a reminder that mootness may not be a barrier where the outcome of an appeal determines whether a parent is an "offending" versus a "non-offending" parent. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
The juvenile court asserted jurisdiction over mother and father's three children (ages 17, 15 and 8) due to mother's mental health issues and father's alleged failure to protect the children from mother. The court removed the children from mother's care, and placed them with father. Mother was granted monitored visits. Mother and father both appealed.
Mother argues insufficient evidence supports the court's finding of neglect and the removal order. She further argues the court abused its discretion in not allowing her unsupervised visits. We find no error in these court's rulings.
Father appeals from the jurisdictional finding against him and argues there was insufficient evidence he failed to protect the children. The Department argues that father's appeal is moot because jurisdiction over the children is still supported by the finding against mother, and while this appeal was pending the court terminated jurisdiction over the children. Finally, the Department argues substantial evidence supports the finding that father failed to protect the children, causing the children to be at risk of harm. We agree with father that the court's finding he neglected the children is not supported by substantial evidence. We exercise our discretion to reach this issue because it could prejudice father in any future dependency proceedings. We therefore strike the jurisdictional finding against him, and affirm the orders as modified.
FACTUAL AND PROCEDURAL BACKGROUND
1. Early Referrals of Neglect
In 2014, the Department received a report about mother. The reporting party said that mother "exhibited strange behaviors" such as carrying a baseball bat to school, and claiming she was being followed. The referral was "substantiated" and a petition for neglect was filed. However, the case was dismissed in 2015 with a finding of insufficient evidence of neglect.
In 2017, mother and children were at a Denny's restaurant when mother argued with a waitress and manager. The police were called, and the children told officers that mother often fought with strangers, embarrassing the children. The incident was reported to the Department, but a case was not initiated. According to Department records, the matter was "evaluated out." 2. The Current Petition
The present case was initiated in response to an incident in October 2018, when mother was arrested for fighting with high school students outside of younger daughter's elementary school. Mother had a golf club with her and brandished it at the students. The police arrested her and she was placed on a psychiatric hold. The mental health facility diagnosed mother with psychosis but released her the next day with a recommendation that she seek follow-up treatment.
After mother's release, the Department interviewed the family. At the time, son was 17 years old, older daughter was 15, and younger daughter was 8. The children were living primarily with mother but spent every other weekend with father. However, during the week, father picked them up every day from home and ferried them to their bus stops and would drop them back off at mother's home after school.
Younger daughter said she had not witnessed the incident at school when mother was arrested but she had seen mother talking to herself at other times. Older daughter said mother had gotten into other fights with people in public due to mother's unfounded belief that people were "bullying" or "stalking" her. The child said mother's conduct made "no sense" because these people did not "even know her." Mother had recently been arrested at a post office for a fight. The guard had "tackled [her] to the floor because of how violent she was getting." Older daughter felt worried about mother's "bizarre" behavior. Although older daughter "just move[d] out of the way" during these incidents, she felt guilty because mother blamed her for not standing by her. Older daughter said while mother took "good care" of the children, mother "needs help."
Son reported that he "just walk[ed] away" during mother's confrontations with strangers, and that mother also blamed him for not condoning her behavior. He said that mother had been kicked out of a Denny's restaurant when she fought with a waiter she believed was mocking her. Son was worried about mother and felt "fed up and tired." While he thought mother was "a good mom," he also thought she "needs a little help to see a doctor."
Mother denied any mental illness, and claimed that the high school students in front of younger daughter's school had "attacked" her. Mother said "she did not attack the children with [the golf club] until one of the high school students swung at her and the other child was kicking her." She said she did not need any services.
Father was an elementary school teacher. He and mother had been divorced for several years and had joint custody of the children. According to father, mother had been "exhibiting delusional behavior" for years, but had never sought any professional help. He was worried about mother's "bizarre behavior" around the children, and believed she needed to be evaluated by mental health professionals. Father reported that the Department had already investigated allegations of neglect by mother, but had not found them substantiated.
Father also described several incidents when mother had fought with strangers, including a "physical altercation" with a woman at the post office. Father said that during these incidents, the police had always expressed concerns about mother and promised to "report the incidents to [the Department]. However, they never report them." Father stated he had "lost hope in the system as he has been down this road with mother, presented his concerns and they have been minimized and dismissed."
The Department filed a petition for general neglect under Welfare and Institutions Code section 300, subdivision (b)(1). The petition alleged that mother's "history of mental and emotional problems, including delusional and bizarre behavior" rendered her incapable of caring for and supervising the children. 3. The Detention Hearing
All further statutory references are to the Welfare and Institutions Code.
At the detention hearing on November 15, 2018, the Department recommended the children remain in mother's care and participate in family maintenance services. The juvenile court found a prima facie case was made that the children were dependents under section 300. Although the Department's counsel asked the court to order mother to complete a psychiatric evaluation and individual counseling, the court declined to do so. The children were released to their parents' care, with family maintenance services to be provided. 4. The Amended Allegation Against Father
Two months later, in mid-January 2019, the Department filed an amended petition adding an allegation of neglect against both parents under section 300, subdivision (b)(1). The amended petition alleged that mother had engaged in "violent altercations with unknown individuals in the presence of the children" in 2017 and 2018, and father was aware of these incidents. "Such violent conduct on the part of the mother and father's failure to protect the children endangers the children's physical health and safety . . . ."
That same month, in January 2019, the Department filed the jurisdiction/disposition report. The Department stated that both mother and father had agreed to cooperate with services. The children felt safe in their parents' care, and mother had not been aggressive toward them. However, mother had exposed the children to verbal altercations with strangers that distressed the children. The Department recommended the children remain in mother and father's care with family maintenance services "to ensure that mother follows through with mental health evaluation and any follow-up recommendation." The Department again asked the court "to order mother to participate in a 730 [psychological] evaluation." (Emphasis original.) 5. Mother's Refusal to Cooperate with the Department
Mother did not follow through with the mental health evaluation or cooperate with the Department. On February 4, 2018, the Department reported that mother had refused to participate in any services. She also refused to talk with the Department social worker on the phone, and accused the Department of "persecut[ing]" and "slander[ing]" her. She denied any mental health issues and refused to participate in a mental health evaluation.
On February 26, 2019, a social worker attempted to visit mother's home. Mother denied him access and screamed at him. The following day, father told the social worker he was concerned mother's behavior would "put the children's in harm's way."
On March 8, 2019, father called the social worker and said mother was refusing to let him see the children. During the phone call, the social worker heard mother screaming at father to leave and using profanity. Father reported that mother had "verbally abuse[d]" son and forced father out of the house. Father called law enforcement who persuaded mother to relinquish the children to father for his weekend visit. During the altercation, younger daughter was sitting in the corner of the room, holding her suitcase and sobbing.
According to the social worker, mother was "now lashing out at the children calling them traitors." Son refused to return to live with mother after this incident, and chose to remain with father. Older daughter also said she wanted to live with father but was afraid of telling mother. Father stated he was able and willing to take physical custody of the children.
On March 22, 2019, the Department sought an order from the court removing the children from mother's custody. The court signed the removal order and released the children to father. 6. The Jurisdiction and Disposition Hearings
The jurisdiction hearing was held on March 28 and April 3, 2019. At the hearing, the Department's and children's counsel asked the court to sustain the petition, arguing that mother's behavior placed the children at risk of harm. Neither counsel addressed the allegations against father.
Mother's counsel asked the court to dismiss the petition entirely because the Department had failed to show that mother's conduct had harmed her children or posed a risk to them. Mother's counsel also blamed father, arguing "this is a family court case" and "there is no evidence father went to family court to resolve this family's issue. He called the Department. Father has not done everything he claims to have done. . . . If there's jurisdiction, the father is failure to protect because he hasn't done everything."
Father's counsel asked the court to strike the allegation against father, arguing that father had been trying to obtain "help for mother for years," and had "been forthcoming because he wants for mom to receive help, and he doesn't know what more he can do." Counsel cited testimony by the social worker that father had been cooperative, "forthcoming with his concerns," had "done a lot to try to get help for mom," and the children had not expressed any concerns about living with father.
The court concluded that mother's conduct had placed the children at risk of harm: "You can't act out in front of your kids and put them in a situation where they feel terrified. . . . 'The police showed up. Is someone going to get shot? Is someone going to get hurt? Is mom going to get her head bashed in? Is someone going [to] fling something and hit me with it?' That's not acceptable."
The court also found that father had failed to protect the children: "I saw that the social worker with Dad was calling authorities. The social worker didn't get an answer. So both of them gave up.[] Both of them did nothing. . . . You needed to do something. I know your frustration but being a parent is hard. No one said it's easy, but you've got to step up."
It is unclear which incident the court is referring to when the court says that father and the social worker "gave up" on calling the authorities.
The juvenile court also faulted the Department for failing to follow up with the mental health facility that had diagnosed mother with psychosis. We note that the Department made multiple requests for an order for a psychological assessment of mother, and the court declined to order an assessment until this hearing.
The court sustained the petition and removed the children from mother's custody, releasing them to father. Mother was granted monitored visits, and ordered to participate in individual counseling. She was also ordered to submit to "psychological testing." Mother and father timely appealed.
While this appeal was pending, son turned 18 and the court terminated jurisdiction over him. The court also terminated jurisdiction over daughters and entered a juvenile custody order, granting father sole legal and physical custody of them. The court found that mother had not completed individual counseling, mental health treatment, and was not taking prescribed medications; and granted her monitored visitation.
We have taken judicial notice of these events.
DISCUSSION
Mother and father both appeal. Mother challenges the jurisdictional and dispositional orders, arguing insufficient evidence supports the court's jurisdictional findings against her and issuance of the removal order. Mother further argues the court abused its discretion in ordering that her visits be monitored. We find no error.
Father argues there was no substantial evidence he neglected the children. The Department in opposition faults father for not seeking physical custody of the children prior to the current proceedings, and points out that father was not able to prevent mother from accosting strangers in front of the children. The Department further argues that father's appeal is moot. We disagree with the Department's arguments, and find that insufficient evidence supports the finding of neglect against father. We order the jurisdictional finding against father stricken, and affirm as modified. Mother's Appeal 1. Substantial Evidence Supports the Jurisdictional Finding Against Mother
Mother contends substantial evidence does not support the finding that her children were persons described by section 300, subdivision (b)(1). We review jurisdictional orders for substantial evidence. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) "In doing so, 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.)
As is relevant here, section 300, subdivision (b)(1) requires that the Department prove three elements by a preponderance of the evidence: (1) the parent's inability to provide regular care for the child due to mental illness; (2) causation; and (3) a "substantial risk" of "serious physical harm." At issue here is whether the Department met its burden of showing that the children were at substantial risk of serious physical harm as a result of mother's conduct.
Mother contends that a parent's delusional beliefs are not sufficient to show that a child is at substantial risk of suffering serious physical harm. She further argues that "any potential harm to the children was pure speculation." We agree with mother that a parent's delusional beliefs due to a mental illness are not, by themselves, sufficient to show that a child is at risk of serious physical harm. (See In re A.L. (2017) 18 Cal.App.5th 1044, 1050 [harm may not be presumed from the mere fact of a parent's mental illness].) However, here, we are confronted with mother's behavior, not just her beliefs.
It was the danger posed by mother's aggression towards others that supported the court's finding of neglect. The court noted that irrespective of whether mother was delusional or reasonably provoked, her aggressive behavior drew the children into dangerous situations. This finding was supported by substantial evidence. Mother repeatedly engaged in altercations, sometimes physical, with strangers and these fights had escalated to the point where the police intervened multiple times. Once, mother was tackled by a security guard. When the older children either walked away or moved out of the way during these fights, mother reprimanded them for not supporting her. It was reasonable for the court to conclude that because mother repeatedly engaged in intense fights with strangers in front of her children and urged her children to support her during these fights, that the children might be drawn into a physical altercation and be harmed. This was substantial evidence the children were at risk of serious physical harm.
Mother argues that at most this evidence suggests the children may be at risk of emotional harm, not covered by section 300, subdivision (b)(1). Not only does substantial evidence support the risk of physical harm, the case law on which mother relies does not convince us otherwise. She cites four cases in which the Court of Appeal found insufficient evidence that a parent's mental illness placed the children at substantial risk of serious physical harm. In all four cases, the Court of Appeal reversed a jurisdictional finding because of insufficient evidence a parent's neglectful conduct created a substantial risk of serious physical harm.
These cases are distinguishable. In In re James R. (2009) 176 Cal.App.4th 129, the Court of Appeal found that "any causal link between" the mother's mental health issues and "future harm to the minors was speculative." (Id. at p. 136.) Although the mother had suicidal ideation prior to the birth of her children, there was no evidence this had continued after her children were born. (Id. at pp. 136-137.) Here, by contrast, mother's mental health issues persisted and had escalated at the time of the jurisdictional hearing, and the court articulated the risk of harm to the children based on mother's behavior. (Cf. In re Jesus M. (2015) 235 Cal.App.4th 104, 112 [father's harassment of mother in front of the children had presented "no obvious threat to the children's physical safety"]; In re David M. (2005) 134 Cal.App.4th 822, 830 [agency failed to identify "specifically how the minors have been or will be harmed" by the parents' mental illness].)
In In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319, the Court of Appeal found insufficient evidence that the mother would "act out" her violent delusions such that there was a substantial risk her son would suffer serious physical harm as a result. The Court of Appeal noted that she had "voluntarily participated in extensive therapy for herself." (Ibid.) Here, by contrast, mother had acted out violently based on her delusions, and also refused to participate in services that were intended to address her mental illness.
2. Substantial Evidence Supports the Removal Order
Mother contends there was insufficient evidence that removal was necessary for the children's protection because (1) it was speculative they would be harmed by her combative behavior with strangers, (2) by the time of the dispositional hearing, mother had shown willingness to participate in services, and (3) mother had taken good care of the children and met all their daily needs. We have already concluded the threat of harm to the children was not speculative. We therefore focus our discussion on the other two arguments, and conclude the removal order is supported by substantial evidence.
" 'A removal order is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]' [Citation.] [¶] We review a removal order for substantial evidence notwithstanding the clear and convincing standard used by the juvenile court. [Citation.]" (In re Alexzander C. (2017) 18 Cal.App.5th 438, 451.)
Mother makes two claims in support of her argument that removal was unnecessary to ensure the children's safety: (1) her counsel's statement at the dispositional hearing that mother was willing to participate in services established she would, in fact, do so; and (2) mother took care of all the children's daily needs. We conclude the record shows otherwise.
Mother consistently showed an unwillingness to cooperate with the Department and participate in services. She did not return the social worker's calls, and was hostile to social workers who attempted to visit the children, sometimes refusing them access. Mother refused any services from the Department. Although mother's counsel said at the dispositional hearing that she was now willing to cooperate with the Department (which is what mother had also represented three months earlier), there was no evidence she had taken any steps in that direction such as beginning counseling.
Although mother took care of some of the children's daily needs, she also caused them significant emotional distress. The record showed she called them traitors, and blamed them for not standing by her during confrontations. In addition, the older children expressed feelings of fear—son was "scared" for "the safety of [his] little sister" who was too young to understand that mother was delusional. Older sister said mother got "angry with her for no reason," "often calls her a traitor," and older sister was "fearful of her mother's reactions." Younger sister sobbed while mother was screaming at father to leave when he attempted to take the children for their weekend visit.
This, in addition to the risk of harm presented by mother's combative behavior in public, there was substantial evidence of detriment to the children if they remained in mother's custody. 3. The Court Did Not Abuse its Discretion in Ordering Monitored Visits for Mother
Mother contends the court abused its discretion in limiting her contact with the children to monitored visitation because the evidence was uncontroverted that "no safety issues exist when the children are alone with mother." "An order setting visitation terms [is reviewed for an] abuse of discretion." (In re Brittany C. (2011) 191 Cal.App.4th 1343, 1356.) We addressed above mother's argument that her behavior at home caused the children emotional distress. Further, her refusal to release the children to father for his scheduled visit, and her resistance to cooperating with the Department also raised the risk she would not comply with any conditions placed on unmonitored visitation. The court's order of monitored visitation was not arbitrary or unreasonable. Father's Appeal 1. Father's Appeal Is Not Moot
Father argues there is no substantial evidence he neglected the children. The Department counters that father's appeal is not justiciable because if we were to reverse the judgment as to father, the unchallenged findings as to mother still support the assertion of dependency jurisdiction over the children. The Department further argues father's appeal is moot because jurisdiction was terminated as to the children while this appeal was pending. We disagree.
"Arguably termination of the court's jurisdiction renders the appeal moot. [Citation.]" (In re J.K. (2009) 174 Cal.App.4th 1426, 1431.) Likewise, the question of mootness also arises when the juvenile court's exercise of jurisdiction over the child is appropriate at least with respect to section 300 allegations against the other parent. (Ibid.)
This notwithstanding, the potential outcome of father's appeal is the difference between father being an "offending" parent versus a "non-offending" parent. (In re Drake M., supra, 211 Cal.App.4th at p. 762.) The juvenile court's finding that father neglected his children may have "far-reaching implications with respect to future dependency proceedings in this case and father's parental rights." (Ibid.) Thus, even though father's appeal will not affect the court's finding that the children were dependents under section 300, we conclude his appeal is not moot. 2. Substantial Evidence Does Not Support the Finding of Father's Neglect
Father argues insufficient evidence supports the juvenile court's finding that the children were at risk of suffering serious physical harm as a result of his failure to protect them from mother. According to father, although the court found he did nothing, father was very involved in his children's lives and took all reasonable actions to protect them. The Department in opposition makes two points. One, "nothing in the record" shows that father "made any attempt to seek physical custody of the children," citing to "see all CTs, generally." Two, "mother['s] violence perpetrated on unknown strangers in the children's presence persisted despite father's apparent 'best [efforts].' " We find the Department's arguments unconvincing.
We first address the Department's points. One, it was the Department that bore the burden at the jurisdiction hearing of proving that father's failure to protect the child created a current and substantial risk the children would suffer serious physical harm. (§ 300, subd. (b)(1).) Here, the Department did not present any evidence as to whether father had sought physical custody of the children in family court. Father did not testify, and the reports did not address this. When the Department's social worker was asked if she knew "whether or not" father had "ever approached the family law court with his concerns" about mother, the social worker testified she did not know. The Department may not rely on the absence of evidence in the record to show that father did not seek custody of the children in family court.
Had the Department presented evidence that father failed to seek custody in family court, we still question whether this would have been enough to substantiate a finding of neglect. At the beginning of this case in November 2018 and after the amended petition was filed in January 2019, the recommendation of the Department was that the children remain with mother with the support of family maintenance services. That a trained social worker opined the children's interests were best served by remaining in mother's custody at that time suggests that it would have been futile for father to have attempted to obtain full custody from the family court. It was only when mother continued to refuse to comply with the Department and her aggressive behavior escalated that the Department, in March 2019, concluded the children should be removed from mother's custody. We see nothing in the law that requires a parent to open a family law case while dependency proceedings are pending. On the contrary, we presume the entire family's interests are better served if the dispute is handled by a single forum.
The Department next contends that despite father's best efforts, he was unable to prevent mother from fighting with strangers while the children were present. While we agree with this, we do not conclude this amounted to neglect. First of all, father was not present at most of these encounters. Father was very involved in the children's lives and acted in many ways to protect them. He picked the children up every morning to ferry them to their bus stop, and every afternoon, to return them home. The children stayed with him every other weekend. After mother started to exhibit delusional behavior, father obtained assurances from the police that they would contact the Department about mother's behavior. When the Department initiated investigations, father cooperated fully and told the authorities mother needed mental health assistance. According to the Department's social worker, he was "forthcoming with his concerns" and had "done a lot to try to get help for mom." Finally, he provided a home for the children when the two older ones decided they wanted to live with him and when the Department finally removed the children from mother's care.
Father did not "do nothing" to protect his children. Instead, other than being with mother every time she had a physical alteration and breaking up the fights, there was little more for father to do. Although the Department decided to amend the petition to include an allegation against father, neither the Department's counsel nor children's counsel addressed the allegation against father at the jurisdictional hearing. No one cited to any portion of the record that showed father had failed to take appropriate action to protect the children, and we have not discovered such evidence in our review of the record.
Because the allegation against father is not supported by substantial evidence, it must be stricken.
DISPOSITION
The jurisdictional finding that father failed to protect the children from mother in count b-2 is stricken. The jurisdictional and dispositional orders are affirmed as modified.
RUBIN, P. J. WE CONCUR:
MOOR, J.
KIM, J.