In re Jennifer C. CA2/7 ( 2022 )

Filed 9/19/22 In re Jennifer C. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JENNIFER C., a Person B317775
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
21CCJP04258A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JAMES C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Linda L. Sun, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
After sustaining a petition pursuant to Welfare and
Institutions Code section 300, subdivisions (a) (serious physical
harm) and (b)(1) (failure to protect),1 based on James C.’s
physical abuse of his 17-year-old daughter, Jennifer C., the
juvenile court found that Jennifer was safely in the custody of her
mother, Veronica C., and it was in the interest of justice and the
welfare of the child to terminate jurisdiction subject to entry of a
juvenile court custody order awarding Veronica sole physical
custody and Veronica and James joint legal custody. The court
ordered only monitored contact between James and Jennifer until
James completed four individual counseling sessions.
Two months later Jennifer had her 18th birthday.
We agree with the Los Angeles County Department of
Children and Family Services that James’s appeal of the
jurisdiction findings is moot because the dependency proceedings
were terminated, the custody order ceased to be in effect when
Jennifer turned 18, and any potential adverse consequences from
the court’s findings are far too speculative to justify discretionary
appellate review of an otherwise moot case. (See In re Rashad D.
(2021) 63 Cal.App.5th 156, 164, fn. 5; In re David B. (2017)
12 Cal.App.5th 633, 654; In re I.A. (2011) 201 Cal.App.4th 1484,
1493; but see In re Emily L. (2021) 73 Cal.App.5th 1, 15
1 Statutory references are to this code.
2
[although appeal of jurisdiction findings is moot when child is no
longer subject to juvenile court jurisdiction, discretionary review
is warranted if the alleged conduct reasonably places the parent
at risk of inclusion in the Child Abuse Central Index (CACI)].)
Nonetheless, because the Supreme Court will soon decide
whether termination of dependency jurisdiction moots an appeal
from a jurisdiction finding when a parent asserts the finding is
stigmatizing or may bar a challenge to future placement on the
CACI (see In re D.P., review granted May 26, 2021, S267429),
and in an abundance of caution (see In re C.C. (2009)
172 Cal.App.4th 1481, 1489), we review the merits of James’s
appeal. We affirm the juvenile court’s findings and order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The August 6, 2021 Incident and Prior Instances of
Alleged Physical Abuse
The Department filed a non-detain petition on August 9,
2021 alleging, in part, that James had physically abused Jennifer
during a confrontation in which he restrained her and which
prompted the paternal grandmother to intervene by pulling
James off Jennifer. According to the referral, described in the
Department’s report accompanying the dependency petition, on
August 6, 2021 Jennifer brought soup from her mother’s
apartment to the home where Jennifer lived with James; her 14-
year-old brother, Robert;2 and the paternal grandmother,
Virginia C. James told Jennifer not to take the food into her
2 James and Veronica had been living apart since April 2017.
According to Veronica, she and James agreed to share custody
and let the children decide how often they wanted to see each
parent.
3
room. Jennifer ignored him, and James followed Jennifer into
her room. Jennifer told the individual who reported the incident
that she was afraid of James and threw water on him to get him
to leave. James became angry, pinned Jennifer to the ground
and started to choke her. The paternal grandmother came into
the room, which allowed Jennifer to escape. Jennifer thereafter
made a plan to live with Veronica.
Jennifer confirmed the initial reporting, telling the social
worker James ordered her not to take the soup into her room, but
she ignored him, went inside her room and closed the door. When
James pushed the door open, Jennifer got upset and threw a cup
of water at him. James responded by grabbing her. As she
resisted, she fell to the floor. James was restraining her on the
floor with his hands on her neck when Virginia come into the
room and pulled James off.
Virginia explained to the social worker that, after Jennifer
took the soup into her room, she told James, as he started to
follow Jennifer, to leave it alone. James persisted; and Virginia
then heard banging and screaming from Jennifer’s room.
Virginia entered the room and pulled James off Jennifer.
Veronica, interviewed several days later, told the social
worker that Jennifer was now living with her. Jennifer had
arrived at Veronica’s apartment immediately after the incident.
Explaining what happened, Jennifer told Veronica she had pulled
James toward her to try to get past him, but she fell, and he
choked her. Veronica stated Jennifer was upset and crying as
she recounted the confrontation.
At the initial hearing on September 15, 2021 the juvenile
court found the Department’s petition established a prima facie
4
case for jurisdiction.3 Jennifer was allowed to remain in the
custody of both parents. The court ordered individual counseling
for her and conjoint counseling for Jennifer and James with a
neutral therapist.
Interviewed on September 28, 2021 for the Department’s
jurisdiction/disposition report, Jennifer expanded on her
description of the incident, explaining that, as she walked toward
her room with the soup after ignoring James’s order, he began
walking after her, moving faster, which scared her and made her
feel threatened. She moved quickly to her room and tried to close
the door as James was pushing it open. She had a cup of water in
her hand, which she threw at James so he would back off. That
made him angrier: “[H]e pushed the door open, and he put his
hands on my shoulders and pushed me onto boxes I had in my
room. I was on the boxes, and he was holding me down by the
shoulders, then my grandma came in the hallway, and he put his
hand (right hand) on my neck and was holding me down, while
my grandma was trying to get him off me. He eventually got off
me. . . . He wasn’t choking me, but was holding me down. I
couldn’t breathe, but it wasn’t because of his hand on my neck; it
was because he was forcing me on the box. His knee was on the
right side of my body. . . . It left really bad scratches and bruises
on my back, and it didn’t go away for a month.”
3 The original petition included an allegation that James’s
physical abuse of Jennifer also put Robert at risk of serious
physical harm; Veronica knew of James’s physical abuse of
Jennifer and failed to protect her and Robert; and James and
Veronica had a history of domestic violence. The allegations
involving Robert and Veronica and the charge of domestic
violence were ultimately dismissed.
5
Jennifer also described to the social worker several other
incidents when James had been physically abusive, including
one occasion when he grabbed her by the back of the neck, forcing
her to look at an air mattress4 and leaving scratch marks; a
second time when he grabbed her by the arms while she was
trying to go out with a friend, squeezing his nails into her and
again leaving marks; and a third event when James got angry
and threw various items at her, including a coffee tray, because
she wanted to go out with her water polo teammates following an
out-of-town tournament and James wanted her to stay in the
hotel room with him to watch a baseball game. According to
Jennifer, James told her it was her fault he had to put his hands
on her because she was out of control.
For his part, James stated he had never abused Jennifer,
physically or emotionally, although he admitted he was
sometimes hard on her. He acknowledged restraining Jennifer
on August 6, 2021, holding her arms, but said he did so for
protective reasons. He denied being on top of her or having his
hand on her neck and said Virginia had not pulled him off
Jennifer. Insisting that Jennifer twisted everything in her favor,
James’s recollection of the various other incidents reported by
Jennifer involved her yelling at him and James responding by
trying to calm her down.
4 Jennifer explained she told James she had trypophobia and
the pattern of holes on the air mattress “creeps me out,” which
angered James.
6
2. The Jurisdiction Hearing and Order Terminating
Jurisdiction
In its jurisdiction/disposition report the Department stated
Jennifer appeared to be “safe in the home” because she was living
with her mother and did not want to return to James’s home,
and, likewise, James did not want her to return to his home.
Nonetheless, a more informal resolution of the situation (that is,
without adjudicating Jennifer a dependent child of the court)
through a section 301 contract or a section 360, subdivision (b),
determination was not feasible because James was not willing to
sign the case plan. Accordingly, the Department recommended
the court declare Jennifer a dependent child, allow her to remain
released to her parents and order family maintenance services
that for James would include a parenting class focused on
communication and appropriate discipline and individual
counseling to address anger management.
In a last minute information report for the court, filed
November 8, 2021, the Department modified its recommendation,
suggesting the court assume jurisdiction but then immediately
terminate it with a juvenile court custody order granting full
physical custody of Jennifer to Veronica and joint legal custody to
Veronica and James, with the requirement that James
participate in individual counseling and James and Jennifer
participate in conjoint counseling. The Department also
recommended visitation for James occur in a therapeutic setting
until Jennifer turned 18 years old.
At the hearing on November 10, 2021 Jennifer’s counsel
argued the court should sustain the allegations of physical abuse;
and James’s counsel urged the court to dismiss the petition,
contending there was no evidence Jennifer was at risk of serious
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physical injury. Noting that Jennifer was two months away from
turning 18, counsel continued, “There’s nothing we’re going to be
able to do to solve the relationship between the father and this
child in that two-month period.”
The court sustained the section 300, subdivisions (a) and
(b)(1), allegations, as amended by interlineation to eliminate the
reference to choking, finding James had physically abused
Jennifer by restraining her during the August 2021 incident,
requiring the paternal grandmother to intervene to pull James
off Jennifer. The sustained allegations also included findings
that on prior occasions the father shook the child and grabbed
her by the neck and held her while forcing her to watch a video.
These actions, the court found, placed Jennifer at risk of serious
physical harm.
Explaining its findings, the court stated, “There are a few
prior incidents between Jennifer and the father, which may not
have been found conclusive or substantiated by the Department.
However, . . . I think it shows a pattern that the father has been
having a difficult communication with—or relationship with
Jennifer. . . . The father resorted to physical violence when
dealing with Jennifer even though Jennifer may not be a
100 percent obedient or she is just behaving like a teenager, but
the father [resorted] to physical matters to restrain Jennifer or to
show his displeasure of Jennifer’s behavior. The older incidents
are relevant in that it shows that the father’s conduct has
escalated over time.” Referring to information from Jennifer’s
therapist detailed in the Department’s reports, which had been
admitted into evidence, the court continued, “Her therapist is
very concerned for the child’s physical and emotional well-being,
and the child has expressed suicidal ideation because of the
8
father. And the father continues to blame others for his conduct
and not accept responsibility, and that is a concern as well.”
Turning to disposition the court essentially adopted the
recommendation in the Department’s last minute information
report, terminating jurisdiction without declaring Jennifer a
dependent of the court, conditioned on entry of a juvenile court
custody order awarding sole physical custody of Jennifer to
Veronica with joint legal custody in both parents. For the
two months remaining before Jennifer turned 18 years old,
James was limited to monitored visitation until he completed
four individual counseling sessions.5
James filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 300, subdivision (a), provides that jurisdiction may
be assumed if the child has suffered, or there is a substantial risk
the child will suffer, serious physical harm inflicted
nonaccidentally by the child’s parent or guardian.
“Nonaccidental” generally means a parent or guardian “acted
intentionally or willfully.” (In re R.T. (2017) 3 Cal.5th 622, 629.)
Section 300, subdivision (b)(1), allows a child to be
adjudged a dependent of the juvenile court when “[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 the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
5 The custody order as described by the court was filed on
December 3, 2021.
9
child from the conduct of a custodian with whom the child has
been left.” A jurisdiction finding under section 300,
subdivision (b)(1), requires the Department to prove
three elements: (1) the parent’s or guardian’s neglectful conduct
or failure or inability to protect the child; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re Cole L. (2021)
70 Cal.App.5th 591, 601; In re L.W. (2019) 32 Cal.App.5th 840,
848; see In re R.T., supra, 3 Cal.5th at p. 624 [“section 300(b)(1)
authorizes dependency jurisdiction without a finding that a
parent is at fault or blameworthy for her failure or inability to
supervise or protect her child”].)
Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not
wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child.
(In re I.J. (2013) 56 Cal.4th 766, 773; In re Cole L., supra,
70 Cal.App.5th at p. 602; In re N.M. (2011) 197 Cal.App.4th 159,
165.) The court may consider past events in deciding whether a
child currently needs the court’s protection. (In re Cole L., at
p. 602; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-
1216; In re N.M., at p. 165.) A parent’s “‘[p]ast conduct may be
probative of current conditions’ if there is reason to believe that
the conduct will continue.” (In re S.O. (2002) 103 Cal.App.4th
453, 461; accord, In re J.N. (2021) 62 Cal.App.5th 767, 775
[“[e]vidence of past conduct may be probative of current
conditions and may assist [the Department] in meeting [its
burden of proof]”].)
10
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’” (In re
I.J., supra, 56 Cal.4th at p. 773.) We review the whole record in
the light most favorable to the judgment below to determine
whether it discloses substantial evidence such that a reasonable
trier of fact could find that the order is appropriate. (Ibid.;
accord, In re I.C. (2018) 4 Cal.5th 869, 892.)
2. Substantial Evidence Supported the Finding Jennifer
Was at a Substantial Risk of Serious Physical Harm
In assuming jurisdiction over Jennifer, the juvenile court
impliedly credited Jennifer’s description of the physical
confrontation with her father on August 6, 2021, as well as the
other incidents of violence over the years, and disbelieved
James’s sanitized version of events. Based on that evidence, the
court found James’s intentional (nonaccidental) conduct
constituted physical abuse that created a substantial risk of
serious physical harm to Jennifer within the meaning of both
subdivisions (a) and (b)(1) of section 300. James’s argument on
appeal that there was no evidence Jennifer had actually suffered
serious physical harm (that is, that the scratches and bruises
were not serious injuries) is misplaced: “[A] court may find there
11
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.” (§ 300, subd. (a); see
In re Isabella F. (2014) 226 Cal.App.4th 128, 139 [“section 300,
subdivision (a) may apply when a minor suffers less serious
injuries but there is a history of repeated abuse”].)6
Apparently recognizing he cannot successfully attack the
court’s credibility determinations and its underlying findings that
the various violent events occurred as Jennifer reported them to
the social worker, James’s sole challenge to the ultimate
jurisdiction finding—the risk of future serious physical harm—is
that, because of a change in the family’s situation, by the time of
the hearing on November 10, 2021, there was no longer any risk
of a further altercation between James and Jennifer. In support
of his argument James explained he had not seen Jennifer since
the August 2021 incident and he was in favor of Jennifer
continuing to live with Veronica. That Jennifer, on her own,
decided to live with Veronica, however, did not constitute a
change in family dynamics sufficient to alleviate the risk of harm
to the child evidenced by James’s past physical abuse.
To reiterate, the juvenile court found that James had
engaged in escalating acts of physical abuse in response to
6 Equally misplaced is James’s argument that the
Department did not allege he caused Jennifer to suffer serious
emotional damage within the meaning of section 300,
subdivision (c), and, therefore, the juvenile court could not
assume jurisdiction on that basis. Although the court expressed
concern about Jennifer’s emotional well-being and the impact of
James’s poor parenting skills on her mental health, it did not
purport to exercise dependency jurisdiction on that basis.
12
Jennifer’s teenage defiance to parental authority. His attacks
left scratches and bruises that lasted for weeks. The incident
precipitating the filing of the dependency petition required the
intervention of the paternal grandmother, who pulled James off
Jennifer as he was restraining her. The juvenile court
reasonably concluded that, left unchecked, this behavior not only
created a direct risk of future physical harm to Jennifer but also,
based on the therapist’s report, was one of the root causes of
Jennifer’s suicidal ideation, another risk factor for future physical
harm to the child. That risk was aggravated by James’s refusal
to acknowledge his responsibility for the violence. (See 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 [“denial is a factor often relevant to
determining whether persons are likely to modify their behavior
in the future without court supervision”].)
The arrangements for Jennifer’s housing after the August
2021 incident were, at most, a modest alteration of the family’s
living arrangements. Prior to August 2021, whether James and
Jennifer lived together was also a voluntary decision. And
Jennifer, whose mental health issues were documented in the
Department’s reports, was apparently willing to reside with
James notwithstanding the earlier episodes of abuse—a decision
explained in part by the fact that she also argued with her
mother. Absent the court’s assumption of jurisdiction and entry
of the custody order protecting Jennifer, James and Veronica
would continue to share custody of Jennifer; and nothing would
have prevented James and Jennifer from resuming the
dysfunctional, violence-filled relationship that led to filing of the
13
dependency petition.7 In addition, contrary to the implication of
James’s argument on appeal, it appears that Jennifer continued
to come to James’s home to do laundry and perhaps on occasion
to retrieve belongings from her room at that house.
In marked contrast, in In re Emily L., supra,
73 Cal.App.5th 1, the case upon which James primarily relies, by
the time of the jurisdiction hearing, “familial circumstances had
undergone epic changes.” (Id. at p. 15.) The physical altercation
between Emily and her mother that led to dependency
proceedings in that case, which Emily prompted and during
which the mother called the 911 emergency number asking for
police assistance, had occurred in October 2019. (Id. at p. 5.) As
of the jurisdiction hearing held 14 months later in December
2020—at which the mother, father and Emily all asked that the
dependency petition be dismissed—Emily had made a
“remarkable transformation.” (Id. at p. 16.) “[T]here was no
evidence Emily was still quick to anger, prone to violence,
smoking marijuana, ditching school, staying out overnight
without permission, or disrespecting her parents and their
rules. . . . Emily’s sea change may have occurred because of her
brother’s tragic death, the absence of her ‘bad’ best friend, the
little therapy she managed to receive, or simply because she had
matured. In any event, no further confrontations had occurred
with Mother in over a year, including during the three-month
period of her ‘extended’ stay with Mother from June to September
7 The record indicates Jennifer was actually spending most
nights with her boyfriend, not at Veronica’s apartment. As the
Department suggests, that living situation was necessarily
tenuous. If the couple broke up, returning to James’s home
remained a possibility absent court intervention.
14
2020. . . . And there was certainly no evidence that a violent
altercation like the one Emily precipitated with Mother in
October 2019 would occur again.” (Id. at pp. 15-16, fn. omitted.)
Thus, the court of appeal ruled, the evidence relied upon by the
juvenile court to support jurisdiction was stale; there was no risk
of future harm. (Id. at p. 16.)
Unlike the situation in In re Emily L., the evidence here of
a continuing risk of harm was anything but stale. James’s most
recent attack had occurred only three months before the
jurisdiction hearing. Although ordered by the court at the initial
hearing, James and Jennifer had not participated in any conjoint
counseling during that period. (Jennifer refused to attend with
James.) There was no evidence that James’s and Jennifer’s
attitude toward each other (or in general) had changed. To the
contrary, as discussed, James would not even acknowledge his
responsibility for the violent encounters. In sum, viewing the
record in the light most favorable to the judgment, as we must,
substantial evidence supported the juvenile court’s jurisdiction
findings.
DISPOSITION
The November 10, 2021 findings and order are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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