Opinion
B232228
11-21-2011
In re A.R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARISA S., Defendant and Appellant.
Neal B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant Deputy Counsel, and Jeanette Cauble, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK84588)
APPEAL from orders of the Superior Court of Los Angeles County. Stanley Genser, Commissioner. Affirmed.
Neal B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant Deputy Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Marisa S. (Mother), mother of two girls (referred to herein as AR and AH) appeals the juvenile court's jurisdictional and dispositional orders finding jurisdiction over AH and placing custody with the girl's father, Raymond H.Mother contends the orders are not supported by substantial evidence. Mother also contests the order placing AR in the home of her maternal grandfather. We conclude substantial evidence supports the court's jurisdictional and dispositional orders and that the issue concerning the placement of AR with MGF is moot.
AH's father, Raymond H., participated in the proceedings below but is not a party to this appeal.
Raymond S., the maternal grandfather, will be referred to as MGF to distinguish him from AH's father, Raymond H.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
The family came to the attention of the Department of Children and Family Services (DCFS) in October 2010. AR was nearly 15 at the time; AH had just turned 5. Mother had called the police for assistance in retrieving AR from the home of MGF. AR informed police officers and the caseworker brought in by the officers that she was afraid to go home because Mother had punched her in the face and beat her with a belt several months earlier. In July, the reported date of the beating, Mother had taken AR to stay with her father, Robert R. But AR felt awkward with Robert as she "hardly kn[ew]" him and went to stay with her MGF instead. AR further reported that Mother had repeatedly thrown her out of the family home, leaving her on one occasion with no place to go. AR also reported that she had been failing in school because Mother expected her to stay home to provide day care for AH and that Mother was a frequent heavy drinker and had once driven while intoxicated with AR in the car.
AR said she had been beaten because Mother caught her having sex with her boyfriend and that Mother had punched her in the face when AR tried to show her how to look for a number on her cell phone. The caseworker observed no marks or bruises and Mother denied ever hitting AR hard enough to leave marks, but AR and AH both reported that AR had marks on her body after being disciplined by Mother.
AR's father was not involved in the proceedings below and is not a party to this appeal.
AH, who was then living with Mother, was interviewed. She confirmed that she had occasionally been left home alone with AR and that AR had been hit with a belt. AH stated that although Mother occasionally disciplined her by spanking her, she felt safe in the home and believed that Mother took good care of her. Mother admitted she had hit AR with a belt, blaming it on the girl's bad behavior, including having sex, using drugs, cursing, and disobeying and hitting Mother.
Other family members interviewed at the time of detention expressed concern about Mother's parenting ability and emotional health. MGF stated that Mother was "verbally abusive" and "dysfunctional" and that AR had complained of being left alone all night with her little sister. The maternal grandmother, Marlene F., stated that when she questioned the wisdom of leaving AR with her father, whom the girl barely knew, Mother had said it was "good punishment" and that she hoped AR would "rot." AH's father, Raymond H., who had custody of his daughter every other week, stated that Mother often left the children alone at night while she went out drinking with her friends. Raymond also reported that Mother had left voicemails threatening him and his fiancée and had engaged in a car chase with him and AH in 2009.
Mother subsequently obtained letters from her siblings, several friends, and her employer, who wrote approvingly of her parenting skills and said that she did not abuse alcohol. In addition, AR's father spoke approvingly of her parenting skills.
Raymond later explained that Mother had become angry when he brought his fiancée along on a visit with AH, which took place in a park. Mother showed up and (Fn. continued on next page.) demanded that the child be returned to her, although Raymond's visitation time was not up. Raymond left the park with AH and his fiancée in his car. Mother chased after them in her car. Raymond flagged down a police car. When he stopped, Mother jumped out of her car and tried to grab AH. Mother was arrested and spent the night in jail. When she got out, she left multiple threatening voice messages on Raymond's phone.
The children were detained. AH was placed with her father. AR was placed in foster care. Mother suggested either of her parents as temporary custodians for AR, but Marlene had no room and MGF had a criminal conviction in his past.Subsequently, Mother objected to placing AR with MGF, claiming he had an unresolved alcohol problem. Mother also expressed concern that MGF was too permissive. She claimed that he had allowed AR's boyfriend to spend time with her in his home and that AR had gotten a tattoo since moving in with MGF. In addition, Mother said that when she had approached MGF about having AR live with him on a prior occasion, he agreed but sent the girl to live in another relative's home almost immediately. After a hearing in January 2011, the court placed AR with MGF.
MGF had been arrested for driving under the influence in 2000 and was subsequently convicted of reckless driving. AR's father had a criminal history as well.
Mother provided a list of witnesses to support her allegations. They were interviewed by the caseworker and found to have little or no current information about MGF or his drinking habits.
B. Jurisdiction/Disposition
Interviewed for the jurisdiction/disposition report, AR reported that Mother had hit her with a belt, her hands, and her fists and had been doing so since her childhood. She further reported that Mother had once choked her. AR said she did not want to live with Mother ever again or even to speak with her on the telephone. With respect to being left alone to care for AH, AR said Mother had "sometimes" left them alone until 2 or 4 a.m. She said that she and AH had also been taken to their grandmother's home when Mother wanted to go out on weekends.
AH denied seeing Mother hit AR and denied being hit herself. Raymond, AH's father, said he had seen Mother "pop [AR] in the face," either "with the back of her hand or with her fists." Raymond further stated that when they were together, Mother drank "most weekends" and was a "binge drinker." MGF also reported that Mother frequently drank on the weekends.
Mother denied ever hitting AR with her fist. Mother denied drinking daily or even weekly. She admitted she had once driven AR after drinking, but said that when she started drinking that night, she had not been expecting to go out and believed the girl was spending the night with a friend. Mother denied ever leaving the girls alone all night. Mother stated that AR sometimes went to stay at a friend's house of her own volition and that she "could not control [AR]." Mother said she could not believe that she might lose custody of AH "because [AR] got out of control." She stated that she wanted AH returned to her, but that AR could stay in foster care.
Mother was tested for drugs and alcohol in October, November, and December 2010 and January and February 2011. All the tests were negative.
Mother later prepared a written statement which stated: "Not to sound like I don't care or don't want [AR] back but given the situation and the way she has accused me of these things and not caring that her sister would be devastated by being ripped away from her mother[,] I do not want [AR] back in my home. I can't see myself living with her and getting along after all she has done."
In January 2011, a caseworker conducted a lengthy "forensic" interview with AH. AH continued to state that Mother occasionally spanked her but denied any serious abuse. She stated that although Mother "dr[a]nk beer," she preferred to live with Mother.
At the jurisdictional hearing, AR testified that she fell behind in school because Mother made her stay home and watch AH two or three days a week. AR further stated she was left alone with AH until late at night "[a] couple of times." She said Mother drank on the weekends (Friday and Saturday) and sometimes Sunday and Tuesday. When Mother drank, she consumed three or four drinks at a time. AR again described an incident a year earlier, when Mother drove her home from her boyfriend's house while apparently quite drunk. AR stated Mother had kicked her out of the family home twice, both times in July 2010. The first time, AR called a friend and stayed with the friend's family for a brief period. The second time, Mother took the girl to her father's house. AR testified Mother had hit her with a belt on three or more occasions, including when Mother caught her and her boyfriend having sex. On that occasion, Mother hit her on the arms and legs with the belt, called her names -- including "slut" and "bitch" -- and seemed to be out of control. On another occasion, Mother hit her in the face with a fist. AR also stated that Mother frequently hit her on the back of the head with an open hand and sometimes slapped her.
AR testified that when they got home, she had to physically help Mother into the apartment from the car and into and out of the bathtub.
AH's father Raymond testified that approximately two and a half years earlier, Mother had thrown hot coffee or cocoa at him when they ran into each other at a furniture store and had then hit and scratched him. AH was with Mother at the time. After this incident, Raymond obtained a restraining order. Raymond explained that Mother was in violation of the restraining order in 2009, when she chased him and AH with her car. Mother also violated the restraining order by repeatedly calling Raymond earlier that day to complain about the presence of his fiancée during his visitation with AH and by leaving threatening messages on his voicemail after being released from jail.
Raymond kept the voicemails and they were played into evidence at the jurisdictional hearing. In the recordings, Mother threatened to "slit [Raymond's] fuck[ing] throat" and said his fiancée was "lucky the police showed up when they did" because "[s]he was about to get dragged through the street."
Mother testified with respect to the drunk driving incident that AR's boyfriend's house was only about a minute from her apartment. She denied that AR had regularly cared for AH when Mother was at work, stating that AH was enrolled in day care. She said AR only occasionally babysat when AH was sick, when the day care was closed, or when Mother did not have the funds to pay. Mother contended that at the time, AR was participating in independent study, which required her to do school work at home, and was not missing classes. Mother admitted she kicked AR out of the house once in July 2010, but testified that she arranged with a girlfriend's mother to take her in. Mother admitted hitting AR when she believed AR was high on Ecstasy.
After the evidence was submitted, the court found jurisdiction appropriate under Welfare and Institutions Code section 300, subdivision (a) (serious physical harm), finding true that Mother physically abused AR by striking AR with a belt and striking her face with her fists, and that these actions "endanger[ed] the child's physical and emotional health and safety" and placed both AR and AH "at risk of physical and emotional harm, damage, danger, [and] physical abuse . . . ." The court also found jurisdiction appropriate under section 300, subdivision (b) (failure to protect), finding true (1) that Mother created "a detrimental and endangering situation" for AR by driving the child in a vehicle while she was under the influence of alcohol; (2) that Mother created "a detrimental and endangering situation" for AH by chasing Raymond H.'s vehicle while the child was a passenger in the vehicle and attempting to remove the child from the vehicle; (3) that Mother had "a history of alcohol abuse," was "a current abuser of alcohol," and was "under the influence of alcohol while the children were in [her] care and supervision," rendering her "unable to provide regular care of the children," "endanger[ing] the children's physical and emotional health and safety," and "creat[ing] a detrimental home environment"; (4) that Mother excluded AR from the home without making an appropriate plan for her care and supervision, "endanger[ing her] physical and emotional health and safety," "creating a detrimental home environment"; and (5) that Mother "left the children home alone without adult supervision throughout the night," "endanger[ing] the children's physical and emotional health and safety," "creat[ing] a detrimental home environment."
Undesignated statutory references are to the Welfare and Institutions Code.
With respect to all the subdivision (b) findings, the court found that Mother's actions placed both AR and AH at risk of "physical and emotional harm."
The court-ordered disposition plan placed AH with her father, Raymond, placed AR with MGF, and required Mother to attend an alcohol abuse program with random testing, parenting classes, individual counseling to address case issues, including anger management, and required Mother to be evaluated by a psychiatrist and to take any prescribed medication. Mother was also directed to attend conjoint counseling with AR when recommended by the girl's therapist.
Mother stated at the hearing that she wanted nothing to do with AR.
DISCUSSION
A. Jurisdiction
Mother challenges the court's jurisdictional finding with respect to AH, contending there was no substantial evidence of a risk to the younger girl. In order to assert jurisdiction over a minor, the juvenile court must find that he or she falls within one or more of the categories specified in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) DCFS bears the burden of proving by a preponderance of the evidence that the minor comes under the juvenile court's jurisdiction. (Ibid.; In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) On appeal from a jurisdictional order, "we must uphold the court's findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings." (In re Veronica G., supra, 157 Cal.App.4th at p. 185.)
The court found jurisdiction appropriate under section 300, subdivisions (a) and (b). Under subdivision (a), a child comes within the jurisdiction of the juvenile court if he or she "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." Subdivision (b) permits the court to adjudge a child a dependent of the juvenile court where "[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 the failure or inability of his or her parent or guardian to adequately supervise or protect the child, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's . . . substance abuse." For purposes of both subdivision (a) and subdivision (b), "evidence of past conduct may be probative of current conditions," but "the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; „[t]here must be some reason to believe the acts may continue in the future.'" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, quoting In re Jennifer P. (1985) 174 Cal.App.3d 322, 326; accord, In re Veronica G., supra, 157 Cal.App.4th at p. 185; In re J.N. (2010) 181 Cal.App.4th 1010, 1023.) "[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." (§ 300, subd. (a); see In re Rocco M., supra, 1 Cal.App.4th at p. 823 [finding "guidance" in this language for determining what constitutes a substantial risk of serious harm under subdivision (b)].)
The evidence supports the court's finding of future risk of serious physical harm to both children under subdivisions (a) and (b). A year prior to the hearing, Mother picked AR up from her boyfriend's house and drove her home. At the time, Mother was so drunk she had difficulty standing. Mother claimed she was not aware that she would be required to drive that evening, but this does not excuse her behavior. She could have asked someone else to drive AR home or left the girl where she was until a safe alternative could be found. This was not an isolated instance of bad judgment. In 2009, she chased Raymond and AH in her car, only a short time after throwing a hot drink in Raymond's face and attacking him in front of the child. Just prior to the detention, she beat AR with a belt, hit her in the face with her fist, called her terrible names, and turned her out in the street to fend for herself. Mother has never expressed any remorse for her treatment of AR. To the contrary, she maintained throughout the proceeding that her conduct was justified by AR's adolescent misbehavior and also blamed AR for causing her to lose custody of AH.
We note that Mother's refusal to take responsibility for her actions appears to be a consistent pattern. After her arrest and brief incarceration in 2009 for violating the restraining order and chasing Raymond when he had AH in his car, she called and threatened Raymond and his fiancée, blaming them for what happened.
Mother contends that as most of the behavior described in the petition's allegations involved AR, this case "was simply about an out-of-control teenager and a mother's reaction to that behavior" that "ha[d] nothing to do with [AH]." AH was directly involved in the incident where Mother chased Raymond's car and tried to snatch the girl from it. The fact that AH did not happen to be in Mother's car the day she imperiled AR by driving after drinking heavily was sheer happenstance; it did not compel the conclusion that AH would never be in similar danger. Mother's failure to realize she was too inebriated to drive on that occasion established her serious lack of judgment. The court could reasonably conclude the same risk of danger would arise should either girl unexpectedly need a ride in the future, especially given Mother's drinking patterns. Moreover, the evidence that Mother physically abused AR was uncontested. While the serious abuse occurred in the more recent past, Mother did not dispute AR's testimony that she had been slapping and hitting the girl for some time. The court could legitimately infer that AH would be similarly mistreated as she grew older or that the removal of AR from the home, would cause AH to become the object of parental abuse. (See In re Edward C. (1981) 126 Cal.App.3d 193, 203.)
Mother contends there was no evidence to support that having AR occasionally babysit AH when Mother went out at night placed either child at risk. AR testified that she had been left alone to babysit AH until 2 or 4 a.m. "a couple of times" and had earlier stated that it happened "sometimes." The court found that Mother's decision to leave the children alone "throughout the night" supported its jurisdictional finding under section 300, subdivision (b), failure to protect and supervise. We need not resolve this issue. Even were this finding to be stricken, the remaining allegations found true by the court would support jurisdiction over both children and the court's dispositional plan. (See In re Daniel C.H. (1990) 220 Cal.App.3d 814, 837 [court need not address whether last minute amendments to petition violated father's due process rights because "[t]he allegations of the original petition alone [were] sufficient to sustain the court's jurisdictional and disposition orders" and "amendments were superfluous[] and not necessary to the disposition"]; 10 Witkin, Summary of Calif. Law (10th ed. 2005) Parent and Child, § 622, p. 751 ["A general finding that the allegations of the petition are true is sufficient to declare a child a dependent child of the court."].) That Mother occasionally left AH in the care of her 14-year old sister until well after midnight added support to the general finding of jurisdiction under subdivision (b), failure to supervise.
The court made no finding concerning Mother's reputed practice of taking AR out of school to provide day care for AH.
B. Disposition
Mother contends that insufficient evidence supported removal of AH from her custody and care. After finding that a child is a person described in section 300 and therefore the proper subject of dependency jurisdiction, the court must determine "the proper disposition to be made of the child." (§ 358.) "A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [that] [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) On review of the court's dispositional findings, "we employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
To support its dispositional order removing custody from a parent, "the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) "The . . . child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child." (Ibid.; accord, In re Kristin H., supra, 46 Cal.App.4th at pp. 1656-1658; see also In re Y.G. (2009) 175 Cal.App.4th 109, 116 [juvenile court may "consider a broad class of relevant evidence in deciding whether a child is at substantial risk from a parent's failure or inability to adequately protect or supervise the child."].)
The court's finding that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of both girls if they were returned home was based on the evidence that Mother physically abused AR on multiple occasions, turned AR out of the home with nowhere to go, routinely drank heavily, drove AR after drinking heavily, and chased a car in which AH was a passenger because she was angry at the driver. The order was supported.
C. Custody
Mother contests the court's decision to place AR with MGF. While the appeal was pending, AR was moved from the custody of MGF to the custody of Marlene F., the maternal grandmother. Respondent thus contends this portion of the appeal has become moot. We agree.
Marlene and MGF are no longer together.
Generally, "[w]hen no effective relief can be granted, an appeal is moot and will be dismissed." (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) "We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) As AR has been moved from MGF's custody, Mother has received the relief she sought with respect to her older daughter. Moreover, the court's original custody decision can have no impact on Mother in future proceedings. We, therefore, conclude this portion of the appeal is moot.
DISPOSITION
The court's jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur: EPSTEIN, P. J. WILLHITE, J.