Opinion
B231312
10-25-2011
In re CHARLES W. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. STEVEN W., Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK85217)
APPEAL from an order of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
Steven W. (Father) appeals the dependency court's order regarding jurisdiction and disposition. Kristina C. (Mother) has not appealed. We find that since domestic violence between the parents occurred, at times in the presence of the children, substantial evidence supported the dependency court's finding of jurisdiction. The dependency court's disposition order removing the children from their parents' care is now moot since the children have been returned to the parents. Accordingly, we affirm.
FACTS
Detention
This matter came to the attention of the Department of Children and Family Services (DCFS) on November 15, 2010. That day, shortly after midnight, Father walked into the police station, reporting that Mother had punched him in the face with a closed fist shortly before midnight on November 14, causing his nose to bleed. He had blood on his nose and hands. He stated that Mother had hit him other times in the past and he wanted to document this incident.
Father and Mother had been together for about 10 years and had three children. According to Father, about six months before, Mother discovered that he had had an affair. Mother was very upset about the affair and their relationship had gone downhill. They had been going to counseling but had been unable to work out their problems. That night, they got into an argument about the affair and Mother reacted by hitting him. Mother had also hit him in the face with a closed fist during the previous summer, that time also causing his nose to bleed. Mother was arrested for domestic battery on November 15 and the couple's three children were brought into the police station.
Charles, who was eight years old, was interviewed by a caseworker. He appeared to be free of any signs of abuse and neglect, and was able to distinguish between the truth and a lie. Charles reported that there had been fighting in the home. When asked what kind, he responded, "the hurting kind." He stated that Mother had hit Father during the summer, causing Father's nose to bleed. After being hit, Father walked away from Mother.
The younger two children, ages six and three, were also interviewed. They denied ever seeing physical altercations between the parents, but had heard them arguing. After being interviewed, the three children were detained with the maternal grandparents.
Mother was interviewed by a caseworker at the Pasadena Jail. Mother stated that she had been very hurt and upset for about six months because of Father's affair. She admitted that she had struck him in the past due to his infidelity. One time, when they were taking a walk, she hit him with a tree branch on the back of the legs. The other time was the incident in the summer when she hit him in the face, causing his nose to bleed.
Mother adamantly denied hitting Father on November 14, 2010. Mother stated that Father had a history of hitting himself and had caused his own injuries. She stated that Father became upset after she threatened to get a restraining order against him. According to Mother, Father was in and out of the family home, and his inconsistent relationship caused emotional harm to the children. Separately, Mother told a police officer that Father had hit her in the past, causing bruises and marks.
On November 16, Mother phoned the caseworker to tell her that the criminal case was dropped, and she wanted her children returned to her custody. The caseworker explained to her that the criminal and child welfare cases were not the same, and she would need to go to court to address the child welfare concerns. According to the caseworker, Mother minimized her participation in the domestic violence incidents and did not seem to understand DCFS's concerns.
The caseworker also spoke to Father on November 16. He admitted that he had hit himself in the past, but maintained that Mother hit him in the face with a closed fist on November 14, causing his injuries. The caseworker determined that the children were at risk due to Mother's ongoing physical violence toward Father, his apparent inability to protect himself, and the children's exposure to the violence.
On November 17, 2010, another caseworker telephoned Mother. Mother now claimed she never told anyone that Father had hit her. She also denied ever hitting Father.
DCFS filed a dependency petition on November 18, 2010. The petition alleged, pursuant to section 300, subdivisions (a) and (b), that the parents had a history of engaging in violent altercations in the children's presence, which placed the children at risk of physical and emotional harm, damage, and danger.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
The detention hearing was held on November 18. Both parents were present, along with the maternal grandparents. The parents' attorneys argued that detention was not justified. The children's attorney, however, recommended detention from the parents, as did DCFS. The dependency court found a prima facie showing had been made that the children were persons described by section 300, and that substantial danger existed to their physical or mental health. The court ordered the children detained with the maternal grandparents. The court ordered monitored visits for the parents, so long as they did not visit together.
Jurisdiction and Disposition
In the jurisdiction/disposition report, dated December 22, 2010, DCFS reported that the three children remained in the home of their maternal grandparents, where they were doing well. Charles, the oldest, had good grades and had tested in the top three percentile nationally for third grade students.
The DCFS report noted that Mother continued to deny hitting Father on November 14, 2010. Mother believed that Father hit himself in the face out of rage because she would not reunite with him. Mother maintained that she had only two physical altercations with Father, once when she slapped him in the face, and once when she lightly hit him with a tree branch on the legs. She stated that Father had never hit her and that most of the arguments they had were out of the presence of the children. Mother said Father was "out of his mind, I mean emotionally."
Father was interviewed on December 17, 2010. He admitted that there had been several domestic violence incidents with Mother. Father stated that when Mother first found out about his affair, she slapped him on the face and he bled. He thought that one of the children saw him with a bloody napkin in his hand. Contrary to his prior statements, he indicated that he was not sure what happened on November 14. He stated that after arguing with Mother he walked outside the house, when he felt a hard hit to his face. He did not know who hit him. After being hit, he went to the police station.
Charles, the eight-year-old, was interviewed at the maternal grandparents' home. He denied seeing the domestic violence on November 14. He stated that he had seen a physical altercation between Father and Mother about three months prior, when he saw Mother slap Father. The six-year-old, who was also interviewed, stated that he had never seen any physical altercations between his parents, but had seen Father with a bloody napkin on one occasion.
The contested jurisdiction/disposition hearing was held on December 29, 2010. Both parents and the maternal grandmother testified.
Father was called to testify first. He stated that prior to November 14, 2010, he and Mother had two physical altercations. The first incident was when she slapped him in the face in the summer. Their attempt to work through the affair was very difficult and emotional, and on that day, Mother found out Father had lied about details and slapped him. According to Father, it caused a "little trickle of blood." He stated they were alone in a closed garage at the time of the argument and the slap. After he started to bleed, he walked briefly into the house to grab a tissue, and then walked back into the garage, opened it, and walked out the front. The children were playing in the driveway and Charles saw the bloody tissue.
The second incident occurred not long after the first. Mother and Father were taking a walk and discussing issues relating to Father's affair. Mother had picked up a branch from the ground and was picking leaves from it as they walked. When she discovered another lie told by Father, she hit him on the back of the leg with the branch. Father characterized the hit as "more playful than anything. It was not a real hard hit."
Father further testified that he and Mother had been in therapy since the early part of 2010. In November they were still trying to reconcile, but both could tell the relationship was coming to an end. On November 14, Father went to the house where Mother and the children were living to help put the children to sleep. After the children fell asleep, Father stayed to talk to Mother about their relationship. As they discussed things, Father got upset and angry and told her to "fuck off." Mother then asked him to leave. Father testified he did not have a clear recollection of what happened next. He stated he walked out the front door and felt like he got hit in the face and started to bleed, but he did not know where the hit came from. Father felt that he did not hit himself and, at the time, he thought that Mother had hit him. Mother told him she was going to get a restraining order against him, and so he went to the police to document what had happened.
Father admitted that, other times, when talking with Mother about the affair, he became distraught and hit himself in the head. He estimated this occurred on two occasions. He also stated that after Mother found out about the affair they talked about the affair on an almost daily basis. Father denied ever harming or hitting Mother. Father stated that the family often did activities together. He said that Mother was a "really good mom," and he felt that he was "a great dad." He stated that neither he nor Mother was a threat to the children.
Mother was called next. She admitted that she must have slapped Father "pretty hard" in the summer since he started to bleed. She said she regretted the act very much and that the children did not witness it. She stated that the incident with the tree branch occurred less than a week later when she uncovered more lies about his affair. As for the November 14 incident, she testified that she did not see how the injury occurred. She saw Father walk outside into the driveway, and he came back and wiped blood on the window at the front of the house. She said she was very shocked and opened the door to tell him, "If you behave this way, I'm going to get a restraining order tomorrow morning." Mother admitted to also seeing "a lot" of blood on her car.
Mother further testified that she never told a police officer that Father had hit her. She testified that, in reality, Father "never, never, never laid a finger on me in any way that would make me be afraid of him." She stated that she had previously gotten a bruise when she reached inside a car to take a house key away from Father.
Mother also testified that she and Father frequently took the children places together and had family dinners. She said that both she and Father loved their children very much. According to Mother, she and Father did not speak about his affair every day, though she could understand why Father would think that. She stated that after the children had been removed, he still came to the house to help her, and that they saw each other almost every day. She said they still had a relationship as friends, but had no romantic relationship.
After Mother testified, the parents' attorneys both moved pursuant to section 350, subdivision (c) to dismiss the counts for lack of risk of serious physical injury. The dependency court granted the motion in part, deleting three sentences of allegations pertaining to individual acts of violent behavior between the parents. The court denied the request to dismiss the allegations in their entirety. The court stated that at least some of the violent behavior was in the children's presence, and that the parents were "both in total denial about the impact of their totally dysfunctional relationship on the children from what you have in evidence at this point." The court commented that they had been in counseling for a long time and had not progressed from when they started. According to the court, the "crux" of the case was "the dysfunctional relationship that at times has resulted in physical injuries to one or both parents and that is placing these children at risk and it appears to be ongoing to this day." The court found a letter from the parents' therapist revealing. That letter stated, in part, "As long as [Mother] and [Father] remain separate and refrain from interacting with each other, I believe that [Mother] is capable of and likely to parent responsibly, effectively, and lovingly. Away from the conflictual relationship with [Father], [Mother] has worked to consistently and carefully nurture, protect, and support all three children." Despite the content of this letter, the parents continued to have daily interactions with each other.
Counsel for the children and DCFS both requested that the court sustain the remaining allegations. Father and Mother's counsel both contended that the matter should be dismissed. The court sustained the petition, finding the allegations true as amended, and finding that the children were persons described by section 300, subdivisions (a) and (b). After further evidence and argument, the court declared the children dependent of the court under section 300, subdivisions (a) and (b). DCFS was ordered to place the children with the maternal grandparents, and provide reunification services and visitation. The parents were ordered not to visit at the same time.
Appeal and Further Proceedings
On January 10, 2011, Father (but not Mother) filed an appeal of the dependency court's jurisdiction and disposition findings.
On August 22, 2011, this court took judicial notice of a minute order from the dependency court dated March 24, 2011. That order found both parents to be in compliance with their reunification plan and ordered that the children be returned to their parents' care. Their primary residence was to be with Mother, and Father was allowed overnight visits with the children.
DISCUSSION
I. Substantial Evidence Supports the Dependency Court's Finding of Jurisdiction.
Father contends that there was insufficient evidence to sustain the petition against him. He argues that the dependency court should not have found jurisdiction under either section 300, subdivision (a) or subdivision (b), because there was not a substantial risk that the children would suffer serious physical harm.
Section 300, subdivisions (a) and (b) state, in pertinent part: "300. Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] (a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. . . . [¶] (b) 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 . . . ."
We review the dependency court's findings for substantial evidence. "In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) All conflicts are resolved and all legitimate inferences are drawn in favor of the dependency court's order. (Ibid.) "[W]e review the record in the light most favorable to the court's determinations." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We do not reweigh the dependency court's determinations of fact or credibility. (Ibid.)
Viewed in light of these principles, the record supports the dependency court's finding of jurisdiction. Appellant's argument that jurisdiction was improper is based around the contentions that the children were doing well in school and that a dysfunctional relationship between the parents is not sufficient in itself to justify jurisdiction. Appellant also contends that there was an insufficient basis to determine that harmful acts could continue in the future. The problem with appellant's arguments is that they essentially ignore the reason that the dependency proceeding was initiated in the first place. It is undisputed that acts of domestic violence between the parents occurred. The record also supports the determination that at least one of the acts was in the direct presence of Charles, and that the children were aware of and affected by the violence.
A long line of cases have held that domestic violence harms children and is a valid basis for finding dependency jurisdiction. "'Both common sense and expert opinion . . . indicate spousal abuse is detrimental to children.'" (In re Sylvia R. (1997) 55 Cal.App.4th 559, 562, citing In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5.) The dependency court need not wait until a child suffers actual physical harm before finding jurisdiction. "It is clear to this court that domestic violence in the same household where children are living is neglect; it is a failure to protect [children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A., supra, 52 Cal.App.4th at p. 194.)
In In re Basilio T. (1992) 4 Cal.App.4th 155, 168-169, the appellants argued, as Father does here, that there was no evidence that the children suffered physical harm, and there was insufficient evidence for the trial court to find they were at substantial risk of serious harm. The Court of Appeal disagreed. "The social study report relates a history of confrontations between [parents], some of which were violent and which apparently involved the minors. Although these past occurrences are not described in great detail, they are sufficient to show a pattern of violent behavior that has not been corrected . . . . Although the evidence is by no means overwhelming, given the deference we must accord a juvenile court's factual findings [citation], we conclude there is substantial evidence to support the jurisdictional findings." (Id. at p. 169.)
A similar analysis applies here. Soon after the November 14 incident, Charles told the social worker that there had been "the hurting kind" of fighting in the home. He said he saw his mother hit his father in the face during the summer. When interviewed in December, the six-year-old son said he noticed a bloody tissue held by Father. Furthermore, the November 14 incident took place, at least for the most part, in the same house as the children. Mother and Father argued and Father told Mother to "fuck off." According to Father's initial recounting of the events, Mother hit him with a closed fist. Father apparently bled profusely, as he wiped blood over the front window of the house and there was blood near Mother's car. The children were aware of the violent incident. Even if they did not hear the arguing and fighting, which was unlikely, they were brought into the police station the night of the incident.
The dependency court was also justified in finding that the parents' dysfunctional relationship, which at times escalated into violence, was likely to continue. Mother physically abused father on at least three occasions. Furthermore, according to the police report, Mother stated that Father had previously hit her, causing bruises and marks. Although Mother later denied making this statement, her explanation of bruises she received evidenced a potentially violent relationship with Father. According to Mother, she argued with Father about his possession of a house key and bruised herself when she reached into a car window to take the key away from him.
Mother and Father appeared unwilling or unable to recognize how their relationship posed a threat to the children. The letter from the parents' therapist stated that as long as they "remain[ed] separate and refrain[ed] from interacting with each other" Mother was "capable of and likely to parent responsibly, effectively, and lovingly." Despite this conditional statement, Mother and Father continued to see each other nearly every day and talked about Father's affair on an almost daily basis. Moreover, they appeared to minimize the effects of their potentially harmful relationship. Father went from stating that Mother had punched him with a closed fist on two separate occasions to claiming that she had slapped him only once, and that he did not know how he got hit the second time.
In sum, substantial evidence supported a finding of jurisdiction. This finding was certainly appropriate under section 300, subdivision (b), as domestic violence is frequently found to give rise to jurisdiction under that subdivision. (See, e.g., In re Heather A., supra, 52 Cal.App.4th at p. 194; In re Basilio T., supra, 4 Cal.App.4th at p. 168.)
Appellant contends, however, that even if jurisdiction was proper under subdivision (b), we should find that it was improper under subdivision (a). We note that there is authority for a finding of jurisdiction under subdivision (a) when a child is exposed to domestic violence. (See In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-599.) But, in any event, since we find that jurisdiction was supported under subdivision (b), it is unnecessary to determine whether it was also appropriate under subdivision (a).
"When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see also In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Father points out that some cases have examined the appropriateness of jurisdiction under multiple statutory grounds, based on a finding that resolution of the various grounds could potentially affect future dependency proceedings. (See In re John S. (2001) 88 Cal.App.4th 1140, 1143; In re D.C. (2011) 195 Cal.App.4th 1010, 1015.) While we agree that such an approach can be called for in certain cases, this approach is not compelled based on the facts present here.
Unlike the cases cited by appellant, in which the alleged factual bases for jurisdiction were unique as to the appellant (In re John S., supra, 88 Cal.App.4th 1140; In re Anthony G. (2011) 194 Cal.App.4th 1060) or jurisdiction was premised only on acts committed by the appellant (In re D.C., supra, 195 Cal.App.4th 1010), the acts giving rise to jurisdiction here involved both Father and Mother. "[T]he court takes jurisdiction over children (section 300); it does not take jurisdiction over parents." (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) "[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Mother did not appeal from any of the dependency court's findings, including whether jurisdiction was proper under subdivision (a) or (b). Since jurisdiction has been established, we need not determine if it was justified under multiple grounds. II. The Dependency Court's Disposition Finding Is Moot.
Following the filing of appellant's opening brief, the dependency court ordered that the children be returned to Mother and Father's care. Respondent DCFS requested that we take judicial notice of this order, which we did. In its respondent's brief, DCFS argued that because of the order, the court's earlier disposition order removing the children from the parents' care has been rendered moot.
We agree that court's disposition order is now moot and need not be revisited. "[A]n action which originally was based upon a judiciable controversy cannot be maintained on appeal, if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed." (Environmental Coalition of Orange County, Inc. v. Local Agency Formation Com. (1980) 110 Cal.App.3d 164, 170.) Since the children have been returned to their parents' care, there is no utility in reexamining the original placement of the children with the maternal grandparents. This conclusion is further compelled by the fact that, following the request for judicial notice and the filing of the respondent's brief, Father did not dispute that the issue is moot in his reply brief.
DISPOSITION
The December 29, 2010 order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.