In re K.G. CA2/8 ( 2022 )


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  • Filed 9/14/22 In re K.G. CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    In re K.G. et al., Persons Coming                              B315068
    Under the Juvenile Court Law.
    ______________________________                                 Los Angeles County
    LOS ANGELES COUNTY                                             Super. Ct. No. 21CCJP01113A,B
    DEPARTMENT OF CHILDREN
    AND FAMILY SERVICES,
    Plaintiff and Respondent,
    v.
    SAMANTHA G.,
    Defendant and Appellant.
    APPEAL from orders of the Superior Court of Los Angeles
    County, Mary E. Kelly, Judge. Affirmed.
    Law Offices of Vincent W. Davis & Associates and Vincent
    W. Davis for Defendant and Appellant.
    Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
    Assistant County Counsel, and Melania Vartanian, Deputy
    County Counsel, for Plaintiff and Respondent.
    ____________________
    Samantha G. appeals jurisdictional findings she physically
    abused her children and a dispositional order removing them
    from her custody. We exercise our discretion to review her appeal
    and affirm. Undesignated statutory references are to the Welfare
    and Institutions Code.
    I
    Samantha G. is the mother of twin seven-year-old
    daughters, K.G. and C.G. The father lives in Pennsylvania. A
    family law order from Massachusetts provided the mother with
    sole legal and physical custody of the children and the father with
    a minimum of four weeks visitation per year.
    The family has a history with child services in
    Massachusetts. That department had received allegations of
    neglect and domestic violence between the mother and the
    maternal grandparents, with whom she and the children lived at
    the time. In May 2020, the maternal grandfather assaulted C.G.
    and choked her. The mother stopped him when she heard C.G.
    screaming and took the girls to the father’s home. In July 2020,
    the mother moved the children to California, where her boyfriend
    lives. She said she moved to protect the children from the
    maternal grandfather.
    On February 1, 2021, C.G. went to school with her arm in a
    sling. At first she said she fell, but then said, “My mom told me
    to lie, my mom pushed me. I was standing on her tablet, and she
    pushed me, and I fell.” K.G. confirmed the mother shoved C.G.
    and made her fall after C.G. broke a tablet screen. Both girls
    reported the mother frequently spanked them hard enough to
    leave marks and the boyfriend also spanked them. K.G. said she
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    dreams about the mother shouting at her and that she would
    “teach her mother how to take a deep breath.”
    The mother denied pushing C.G. She said C.G. had broken
    a tablet, was running around, and tripped. The mother tried to
    grab her but missed—she said, “I think it’s actually getting mixed
    up with shoving.” The mother took C.G. to the hospital the next
    day because C.G. could not lift her arm. Doctors discovered C.G.
    had a fracture in her left shoulder through the neck of the
    humerus.
    The mother said she used to spank the children with a
    single spank over clothes and denied leaving marks. She said she
    had “made a deal with my brother in law not to do it” anymore.
    She suspected the children were traumatized by the
    grandfather’s abuse and her own use of physical discipline. The
    mother reported she smoked marijuana and occasionally drank
    alcohol but denied illicit drug use or alcohol problems. She also
    reported having anxiety and panic attacks and said she had
    experienced suicidal thoughts in the past, during the “situation
    with [the twins’] father and maternal grandfather.”
    On March 4, 2021, the juvenile court approved a removal
    order. On March 9, the Los Angeles County Department of
    Children and Family Services filed a section 300 petition alleging
    the mother physically abused the children, had a history of
    mental and emotional problems and domestic violence,
    endangered the children by allowing her boyfriend to physically
    abuse them, and was an abuser of marijuana. On March 12, the
    juvenile court ordered the children detained in foster care.
    At the April 9, 2021 adjudication hearing, the mother
    testified she never pushed or injured C.G. or instructed C.G. to
    lie. She said she only spanked K.G. once without leaving a mark
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    and her boyfriend did not physically discipline the children. She
    said she had enrolled in parenting, anger management, and
    narcotics classes, Narcotics Anonymous, and therapy. She said
    she did not consider herself an addict but wanted to prove she
    would do anything for her children. The court paused
    proceedings to deal with an emergency and continued the
    adjudication hearing to April 29.
    On April 29, 2021, the juvenile court sustained the petition
    in its entirety, found by clear and convincing evidence there was
    no reasonable means to protect the children’s physical safety
    without removal, and continued the hearing to consider whether
    the children should be released to the father in Pennsylvania.
    At the July 30, 2021 adjudication hearing, the mother
    testified that she had nearly finished her parenting program.
    She described coping strategies she had learned in her anger
    management class and a “toolkit” for avoiding domestic violence.
    She also described her personal progress in therapy. The court
    continued the hearing to August.
    On August 12, 2021, the court dismissed the allegations of
    domestic violence between the parents as remote in time. The
    court did not find the mother’s testimony about her case plan
    progress compelling and thought “she looked off” when she
    testified. It sustained the rest of the petition and found by clear
    and convincing evidence the children must be removed from the
    mother. The court did not make this finding as to the father.
    The mother appeals the August 12, 2021 removal order.
    As a preliminary matter, we note that during the pendency
    of this appeal, the juvenile court terminated its jurisdiction over
    the children and granted the father sole legal and physical
    custody with monitored visits for the mother. We take judicial
    4
    notice of these May 25, 2022 and June 3, 2022 minute orders.
    (See Evid. Code, § 452, subd. (d).) An appeal becomes moot when,
    through no fault of the respondent, an event makes it impossible
    for the appellate court to grant the appellant effective relief. (In
    re Jessica K. (2000) 
    79 Cal.App.4th 1313
    , 1316.) We generally
    dismiss an appeal where reversal will have no practical effect.
    (In re Dani R. (2001) 
    89 Cal.App.4th 402
    , 404.) That is the case
    here, where the court has terminated jurisdiction and issued a
    new custody order. Out of an abundance of caution, we
    nonetheless exercise our discretion to consider the merits of the
    mother’s appeal. (See In re Daisy H. (2011) 
    192 Cal.App.4th 713
    ,
    716.)
    II
    First the mother challenges the jurisdictional findings she
    abused the children. The mother admits in her reply brief she
    did not individually challenge the allegation she failed to protect
    the children from her boyfriend’s abuse. This allegation may
    serve as an independent basis for affirming juvenile court
    jurisdiction. (See In re Briana V. (2015) 
    236 Cal.App.4th 297
    ,
    310–311.) We generally view such challenges as nonjusticiable.
    (Id. at p. 308; see generally In re I.A. (2011) 
    201 Cal.App.4th 1484
    , 1489–1495.)
    However, the mother argues the jurisdictional findings
    against her could prejudice her in current or future dependency
    proceedings or have other consequences for her. For this reason,
    we exercise our discretion to review the findings against the
    mother that the children suffered or there was a substantial risk
    they would suffer serious physical harm due to the mother’s
    abuse or neglect. (See § 300, subd. (a), (b), & (j); In re A.R. (2014)
    
    228 Cal.App.4th 1146
    , 1150.)
    5
    The juvenile court looks at the totality of the circumstances
    in determining whether a child is at substantial risk of harm to
    support jurisdiction under section 300. (In re J.K. (2009) 
    174 Cal.App.4th 1426
    , 1439–1440.) We review the juvenile court’s
    findings for substantial evidence. (In re R.T. (2017) 
    3 Cal.5th 622
    , 633.) We examine the record as a whole in the light most
    favorable to the judgment, draw all reasonable inferences in its
    support, and defer to the court’s credibility findings. (Ibid.)
    The mother argues there was no substantial evidence
    C.G.’s injury was nonaccidental. She says it is merely “the child’s
    perception” that she pushed C.G., and “there were no medical
    findings that the child’s injury [occurred] nonaccidentally.”
    The mother’s arguments miss the mark. Substantial
    evidence does not require a medical finding about accident or
    intent. The juvenile court found credible C.G. and K.G.’s
    consistent reports the mother spanked them hard enough to leave
    marks and pushed C.G. “really hard.” C.G. suffered a medically
    verified bone fracture as a result of the fall. The court did not
    believe the mother, who denied causing C.G. any injury or
    spanking the children regularly. We defer to the court’s
    credibility findings.
    Pushing to the ground a child already traumatized by
    physical abuse and fracturing a bone is serious physical harm.
    Spanking hard enough to leave marks is not reasonable
    discipline. C.G. sustained a serious injury, and K.G. also was at
    risk. The mother did not accept responsibility for injuring C.G. or
    spanking the children. There was sufficient evidence of physical
    abuse and that the risk of abuse was likely to continue. We need
    not reach other risks created by the mother’s marijuana use and
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    mental health issues. We affirm the court’s jurisdictional
    findings.
    III
    Next the mother argues the juvenile court erred by
    removing the children because substantial evidence did not show
    removal was the only means to protect them. She points out that
    by the time of the August 12, 2021 hearing, she had almost
    completed her case plan, had participated in more programs than
    required, and testified to gaining knowledge from her programs.
    The juvenile court found by clear and convincing evidence
    there was no reasonable means to protect C.G. and S.G. without
    removal from the mother’s care. (See § 361, subd. (c)(1).) On
    appeal, the question before us is whether the record contains
    substantial evidence such that a reasonable fact finder could
    have found it highly probable this fact was true.
    (Conservatorship of O.B. (2020) 
    9 Cal.5th 989
    , 1011–1012 (O.B.).)
    Substantial evidence supports the court’s removal order.
    The court noted the children were traumatized as a result of the
    mother’s direct abuse as well as keeping the children with the
    maternal grandfather in Massachusetts despite his abuse. The
    juvenile court did not find the mother’s testimony credible and
    said she “looked off” when describing her case plan progress. In
    addition, a case worker had confirmed the mother’s attendance
    and participation but said the mother had not yet shown
    accountability for her actions or demonstrated insight into her
    problems and needed mental health services to deal with her own
    trauma.
    We will not disturb the court’s credibility findings. (See
    O.B., supra, 9 Cal.5th at p. 1008.) On these facts, a reasonable
    fact finder could find it highly probable the children were at risk
    7
    of harm in the mother’s custody and removal was necessary to
    protect them from further injury. The mother’s progress in her
    programs is laudable but alone does not make the court’s
    determination unreasonable, especially given the court’s
    credibility findings against her. We affirm the removal order.
    DISPOSITION
    The orders are affirmed.
    WILEY, J.
    We concur:
    GRIMES, Acting P. J.
    HARUTUNIAN, J.*
    *     Judge of the San Diego Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
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Document Info

Docket Number: B315068

Filed Date: 9/14/2022

Precedential Status: Non-Precedential

Modified Date: 9/14/2022