In re William M. CA2/7 ( 2021 )

Filed 6/30/21 In re William M. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re WILLIAM M. II, et al., B307619, B308854
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct. Nos.
19CCJP03005A
19CCJP03020A
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
WILLIAM M.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Sabina Helton, Judge. Appeals as to William M. II are
affirmed. Appeal as to Levi M. is dismissed.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Tracey Dodds, Principal Deputy
County Counsel, and Sarah Vesecky, Senior Deputy County
Counsel, for Plaintiff and Respondent.
_____________
William M., the father of 15-year-old William M. II and
nine-year-old Levi M., appeals the juvenile court’s disposition
orders removing his sons from his custody after the court
sustained amended petitions alleging William had used
inappropriate physical discipline that placed both children at
substantial risk of serious physical harm. Without disputing the
court’s jurisdiction findings, William contends its disposition
orders are not supported by substantial evidence and there were
less restrictive means other than removal to keep his children
safe.
William also appeals the juvenile court’s order, made while
his appeals were pending, terminating dependency jurisdiction
over William II with a juvenile custody order awarding
William II’s mother, T.Q., sole physical and legal custody and
limiting William to monitored visitation. William contends the
court erred in granting T.Q. sole legal custody of William II.
We affirm the juvenile court’s orders as to William II.
While these matters were pending on appeal, the juvenile court
terminated its jurisdiction over Levi. Because William has not
appealed that termination order, we dismiss the appeal
challenging Levi’s removal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
William and T.Q. are divorced. At the time these
dependency proceedings were initiated, they shared custody of
William II pursuant to a family court order. William lived with
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his girlfriend, Sylvia C., and their child, Levi, and with William II
when William II was in William’s custody. T.Q. lived separately.
1. The Dependency Petitions
On May 13, 2019 the Los Angeles County Department of
Children and Family Services (Department) filed a petition
pursuant to Welfare and Institutions Code section 3001 alleging
William had physically abused William II by striking him with
his hands and with belts and inflicting marks, grabbing him by
the ears, throwing him against a wall and furniture, and choking
him. The petition also alleged William had physically abused
William II’s then-seven-year-old sibling, Levi, by striking him
with belts and inflicting marks; this behavior placed William II at
substantial risk of serious physical harm (§ 300, subd. (a), (b), (j));
and T.Q. knew of the abuse and failed to protect William II
(§ 300, subd. (b)). (Super. Ct. L.A. County, No. 19CCJP03005A.)
The same day the Department filed a nearly identical
petition as to Levi alleging William’s conduct toward Levi and
William II placed Levi at substantial risk of serious physical
harm (§ 300, subd. (a), (b), (j)), and Sylvia knew of the abuse and
failed to protect Levi (§ 300, subd. (b)). (Super. Ct. L.A. County,
No. 19CCJP03020A.)
Both children were detained from William. William II was
released to T.Q., and Levi to Sylvia.
2. The Contested Jurisdiction Hearing for Both Children
At a joint contested jurisdiction hearing on the
two petitions, William II testified his father had, from the time
William II was in kindergarten, routinely hit him for
misbehaving. Sometimes William would strike him with a belt,
1 Statutory references are to this code.
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sometimes with his hands. More recently the beatings had
become more violent and left marks on William II’s body.
William instructed him in these instances to tell his teachers and
T.Q. the marks were from sports, which William II did.
When William II was in the fourth grade, William slammed
his head against bunk beds, causing bruising to William II’s eye.
In 2018 William threw William II against a couch and choked
him after learning he had failed to turn in his assignments at
school. William II suffered a black eye during that incident. A
few months prior to the initiation of dependency proceedings,
William became angry at William II for delaying the family’s
plans to go on an outing. He cursed at William II and choked,
punched and kicked him.
William also used a belt to punish Levi when he
misbehaved. William disciplined William II or Levi in their
shared bedroom with the door closed. No one else witnessed the
beatings. Sylvia saw the bruises afterward and would help
William II relieve the pain and swelling. (Sylvia confirmed
William disciplined William II and Levi behind closed doors.
However, she testified she helped William II attend to injuries
she believed he had suffered in sports, not from discipline.)
William testified concerning the incident that led to the
filing of the dependency petitions: On April 26, 2019 William II
was suspended from school after he was caught vaping
marijuana. William picked him up from school. When they
returned home, William told him to get inside and close the door
because William II “did not know what was coming to him.”
William II knew that meant William would beat him. William II
used his cell phone to call his mother and fled the house despite
his father’s warning “not to run.” William chased him, yelling at
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him that things were only going to get worse for him. A female
passerby William II did not know saw William II fleeing and
asked if he needed help. William II got into the woman’s car and
asked her to drive him to the local park, where he met T.Q.
William II told T.Q. and law enforcement officers who had been
called to the scene that he feared William would hurt him and he
did not want to be near him again. William II said his father had
frequently beat him and he was tired of covering it up.
T.Q. obtained a restraining order against William to keep
him away from her and William II. T.Q. also told social workers
she had been the victim of domestic violence when she was
married to William. She knew he was a strict parent, but had
not known he had bruised and battered William II. William II
never told her.
The Department had received several referrals relating to
William’s discipline of William II over the years. After
investigation, most were determined to be “unfounded.” A
referral in 2015, after William II told his teacher his father hit
him daily with a belt, was determined “inconclusive.” During the
Department’s 2015 investigation, William refused the
Department’s offer of services, telling the investigator he knew
how to discipline his children and did not need any help.
William testified at the hearing that he was a strict parent
who made sure his children were well-mannered and suffered
consequences for misbehavior. He acknowledged using physical
discipline on both his children, including slapping them with
open hands or using a belt or a sandal to spank them. He
insisted such discipline was appropriate and legal unless it left
marks, which, he insisted, it did not. William acknowledged
William II frequently had bruises on his body, but claimed they
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were the result of William II’s participation in contact sports,
including wrestling. William denied William II’s accusations that
he had choked, punched and slammed his head into furniture.
William testified William II had been “hyped up” on
concentrated marijuana on the day he fled the house. He
believed William II was scared because he knew William despised
drug use of any kind. William had also concluded that money
missing from the house had been taken by William II to purchase
drugs. According to William, William II was lying about abuse to
get attention from his mother and to avoid consequences from his
father for his behavior. William said he had no intention of
changing his parenting style unless the court ordered him to do
so. He believed he used appropriate discipline.
Following the hearing the court sustained petitions
amended by interlineation to allege that William had
inappropriately physically disciplined both children and that the
discipline was excessive and caused the children unreasonable
pain and suffering (§ 300, subds. (a),(b), (j)). ~(CT 361, RT 449.)~
The court found Sylvia had failed to protect Levi and found T.Q.
nonoffending.
3. The Disposition Hearing
Proceeding immediately to disposition, the court declared
both children dependents of the court, finding by clear and
convincing evidence they were in substantial danger in William’s
custody and there were no less restrictive means to protect them
other than removal. The court released William II to T.Q.’s
custody under the supervision of the Department and ordered
family enhancement services for William, including participation
in parenting classes, individual and conjoint counseling, and
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monitored visitation. ~(RT 460-461, CT 375-378.)~ The court set
a section 364 hearing for November 3, 2020.
The court released Levi to Sylvia’s custody with family
maintenance services for Sylvia and family enhancement services
for William, who had earlier moved out of the home so that Levi
could remain in Sylvia’s custody. The court ordered monitored
visitation for William and set a review hearing.
William appealed both disposition orders.
4. The Court’s Order Terminating Dependency Jurisdiction
Over William II
In its report prepared for the November 3, 2020 review
hearing for William II, the Department informed the court
William was noncompliant with the case plan—he had not
enrolled in counseling. According to the report, William told the
Department he was working 80 hours a week at two jobs and had
not been able to find a counselor he could afford who could also
accommodate his schedule. ~(308854 CT 3 et seq.)~ The
Department provided William with additional referrals. In a
last minute report the Department advised the court William had
registered for a parenting class on October 12, 2020, but had not
yet completed it. He registered for individual counseling on
October 26, 2020, a few days prior to the hearing, but had not yet
been assigned a counselor. The Department questioned William’s
commitment to participating in services and recommended the
court terminate its jurisdiction with a custody order granting
T.Q. sole physical and legal custody and William monitored
visitation. ~(308854 CT 65.)~
At the section 364 hearing William submitted evidence he
had completed his parenting program one day earlier, on
November 2, 2020. He had also enrolled in counseling services.
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He requested an order terminating jurisdiction with a custody
order that awarded T.Q. sole physical custody with unmonitored
visitation for William and joint legal custody.
Following the hearing the court adopted the
recommendations of the Department and William II’s counsel
and terminated its jurisdiction with a custody order granting
T.Q. sole physical and legal custody of William II with sibling
visitation and monitored visitation for William. William filed a
timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Before the court may order a child removed from the
physical custody of a parent with whom the child was residing at
the time the dependency proceedings were initiated, it must find
by clear and convincing evidence that the child would be at
substantial risk of physical or emotional harm if returned home
and there are no reasonable means by which the child can be
protected without removal. (§ 361, subd. (c); In re Anthony Q.
(2016) 5 Cal.App.5th 336, 347; In re T.V. (2013) 217 Cal.App.4th
126, 135.) “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.” (In re T.V., at pp. 135-136.)
In reviewing the propriety of a disposition order removing a
child from a parent pursuant to section 361, in view of the
requirement that the juvenile court make the requisite findings
based on clear and convincing evidence, we “must determine
whether the record, viewed as a whole, contains substantial
evidence from which a reasonable trier of fact could have made
the finding of high probability demanded by this standard of
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proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005
(O.B.); see In re V.L. (2020) 54 Cal.App.5th 147, 155 [O.B. is
controlling in dependency cases].) We draw all reasonable
inferences from the evidence to support the findings and orders of
the juvenile court and review the record in the light most
favorable to the court’s determinations; issues of fact and
credibility are the province of the juvenile court. (In re I.C. (2018)
4 Cal.5th 869, 892; In re I.J. (2013) 56 Cal.4th 766, 773.)
2. Substantial Evidence Supports the Court’s Disposition
Order Removing William II from William’s Custody
Relying on In re A.E. (2014) 228 Cal.App.4th 820, 826,
William contends the court erred in removing William II from his
custody. In In re A.E. the juvenile court sustained a section 300
petition alleging the father had disciplined his two-year-old child
by striking her backside with a belt, inflicting welts and bruising.
The father stated he had come to realize his method of discipline
was excessive and caused his child unreasonable suffering and, if
he had known it at the time he inflicted it, he would have
behaved differently. The father explained it was a one-time
incident and insisted he had learned from his mistake.
Emphasizing the child’s young age, the juvenile court removed
her from her father’s custody and ordered parenting classes and
individual counseling for the father with monitored visitation.
Our Division Eight colleagues reversed, concluding there
was not substantial evidence to support removal. (In re A.E.,
supra, 228 Cal.App.4th at p. 826.) The court stated, “[I]t is clear
that this was an isolated incident that is unlikely to recur.
Evidence of past abuse, standing alone, does not meet the clear
and convincing standard of proof required to justify her removal
from Father’s physical custody. . . . [¶] . . . [¶] The record in this
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case shows the risk to [the child] of future abuse is low. Father
expressed remorse and is committed to learning better discipline
methods. He testified that he understood a young child like A.
may misbehave because she is frustrated that she cannot
communicate her needs. He also understood that there were
other methods of discipline such as giving her a time out, telling
her she would not get any candy, or taking away something she
liked. That is not substantial evidence of a ‘profound lack of
understanding of child development.’ It is quite the opposite.”
(Id. at p. 826.)
Citing his testimony at trial that he would change his
methods of discipline if ordered to do so, William contends he is
in the same position as the father in In re A.E. He did not realize
his methods of discipline were excessive and now that the court
has said they were, he would change. In marked contrast to the
father in In re A.E., however, William did not acknowledge the
impropriety of his conduct at trial; he steadfastly insisted it was
proper. He also claimed that William II was lying about the more
severe forms of discipline, including punching, kicking and
choking, behaviors the court found had occurred. Moreover, the
discipline at issue In re A.E. was a “one-time” occurrence, not, as
here, a pattern of behavior that had continued, and escalated, for
more than a decade.
William’s reliance on In re Hailey T. (2012) 212 Cal.App.4th
139 is similarly misplaced. There, the court of appeal reversed a
disposition order removing a three-year-old child (Hailey) from
her parents’ custody after the juvenile court sustained allegations
under section 300, subdivisions (a) and (j), that the parents had
inflicted an injury on Hailey’s four-month-old sibling. The court
of appeal explained there was no evidence the parents had ever
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inflicted any harm on Hailey, who, by all accounts, appeared to
be thriving in their custody. Moreover, both parents had
demonstrated a commitment to services “at the earliest
opportunity” and showed meaningful progress in those services
by the time of the disposition hearing. (Id. at pp. 148-149.) The
court also found there were less restrictive alternatives that the
juvenile court had utterly failed to consider that could have
protected Hailey, such as unannounced visits by the Department
to the family home and the father’s willingness to move out of the
family home. (Ibid.)
Unlike the parents in In re Hailey T., William resisted
counseling when it was offered and continued to deny the
harmful effects of his behavior on William II. Unannounced
visits by the Department in these circumstances would do little to
protect William II. (See generally In re Gabriel K. (2012)
203 Cal.App.4th 188, 197 [“[o]ne cannot correct a problem one
fails to acknowledge”]; In re Esmeralda B. (1992) 11 Cal.App.4th
1036, 1044 [same].) The court recognized William’s testimony
that he would follow a court order to refrain from imposing
excessive discipline; but it remained concerned about William’s
ability to accomplish such a dramatic shift without professional
assistance, particularly since William had always believed, up to
and including at trial, that his actions were appropriate. Until
William had the benefit of counseling to promote insight and
behavior modification, the court explained, William II would not
be safe in his custody. Substantial evidence supports the court’s
removal order. (See In re E.E. (2020) 49 Cal.App.5th 195, 217
[“‘[t]he trial court is in the best position to determine the degree
to which a child is at risk based on the assessment of all the
relevant factors in the each case’”].)
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3. The Court Did Not Err in Granting T.Q. Sole Legal
Custody of William II
Section 362.4 authorizes the juvenile court, when
terminating jurisdiction over a dependent child, to issue a
custody and visitation order that “will become part of the parents’
family law file and remain in effect in the family law action ‘until
modified or terminated by a subsequent order.’” (In re Anna T.
(2020) 55 Cal.App.5th 870, 871, fns. omitted; see § 362.4,
subd. (a) [“[i]f the juvenile court terminates its jurisdiction over a
minor who has been adjudged a dependent child of the juvenile
court prior to the minor’s attainment of 18 years, and proceedings
for dissolution of marriage, for nullity of marriage, or for legal
separation, of the minor’s parents . . . are pending in the superior
court of any county, or an order has been entered with regard to
the custody of that minor, the juvenile court on its own motion,
may issue . . . an order determining the custody of, or visitation
with, the child”].)
When making a custody determination under section 362.4,
“it is the best interests of the child, in the context of the peculiar
facts of the case before the court, which are paramount.” (In re
John W. (1996) 41 Cal.App.4th 961, 965; accord, In re Nicholas H.
(2003) 112 Cal.App.4th 251, 268.) This determination is made
without reference to any preferences or presumptions ordinarily
applicable in family court. (See In re John W., at p. 972
[“presumption of parental fitness ‘that underlies custody law in
the family court just does not apply to dependency cases’”]; see
also In re C.M. (2019) 38 Cal.App.5th 101, 108 [“[a]lthough both
juvenile and family courts have authority to make orders
regarding custody and visitation, the two courts operate under
separate statutory schemes and serve distinct purposes”].)
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We review a juvenile court custody order for abuse of
discretion. We “may not disturb the order unless the court
‘“‘exceeded the limits of legal discretion by making an arbitrary,
capricious or patently absurd determination.’”’” (Bridget A. v.
Superior Court (2007) 148 Cal.App.4th 285, 300-301; accord, In re
M.R. (2017) 7 Cal.App.5th 886, 902.)
William does not challenge the court’s order terminating
jurisdiction under section 364 with a custody order granting T.Q.
sole physical custody of William II. However, he contends the
court abused its discretion in awarding sole, rather than joint,
legal custody to T.Q. because there was no evidence he could not
cooperate with T.Q. on making decisions for William II. Although
William emphasizes his and T.Q.’s past cooperation in their
shared custody arrangement to support this argument,
circumstances had dramatically changed since the initiation of
dependency proceedings: William II had expressed overwhelming
fear of his father; T.Q. had obtained a restraining order against
him to protect her and William II; and William had described
T.Q. as on a “power trip now.” The court found shared legal
custody was not in William II’s best interests. William has not
demonstrated that decision was arbitrary or irrational.
4. William’s Appeal from the Disposition Order Removing
Levi from His Custody Is Moot
On February 2, 2021, while William’s appeals were
pending, the juvenile court terminated its jurisdiction over Levi,
releasing him to the home “of his parent(s).” William has not
appealed that termination order and has not demonstrated in
response to our letter inviting briefing on the question why this
court should not dismiss his appeal from the court’s disposition
order as moot. (See In re Rashad D. (2021) 63 Cal.App.5th 156,
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164-165 [“because the juvenile court terminated its jurisdiction
over [the child] and that termination is final, a remand for
further proceedings in the juvenile court would be meaningless”;
accordingly, the appeal is properly dismissed as moot because the
court cannot provide any effective relief]; see generally In re N.S.
(2016) 245 Cal.App.4th 53, 60 [“the critical factor in considering
whether a dependency appeal is moot is whether the appellate
court can provide any effective relief if it finds reversible error”].)
DISPOSITION
The disposition order removing William II from William’s
custody and the order terminating dependency jurisdiction over
William II and awarding sole legal and physical custody of
William II to T.Q. are affirmed. The order removing Levi from
William’s custody is dismissed as moot.
PERLUSS, P. J.
We concur:
SEGAL, J
FEUER, J.
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