In re M.W. CA2/8 ( 2023 )

Filed 1/31/23 In re M.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re M.W., a Person Coming Under B313423 & B316959
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 21CCJP00690A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NORA H.,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County. Michael D. Abzug and Philip L. Soto, Judges. Affirmed
in part, reversed in part and remanded with directions.
Deborah Dentler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
INTRODUCTION
In these two consolidated appeals, Nora H. (Mother)
challenges the juvenile court’s jurisdictional and dispositional
orders, and its exit orders terminating jurisdiction and granting
sole physical custody and shared legal custody to her child’s
father (Father).
The juvenile court assumed jurisdiction over M.W., now a
teenager. It sustained allegations that M.W. had suffered or was
at risk of suffering serious emotional damage within the meaning
of Welfare and Institutions Code section 300, subdivision (c),1 due
to both parents’ actions in their protracted custody battle (count
c-2) and Mother’s “ongoing” “yell[ing]” at M.W. (count c-1).
Mother appealed. Father did not appeal.
While Mother’s appeal was pending, the juvenile court
terminated its jurisdiction and issued custody orders. Mother
appealed. Father did not appeal.
In the first appeal, we reverse the juvenile court’s
assumption of jurisdiction under section 300, subdivision (c),
count c-1. There is insufficient evidence that Mother’s actions
caused M.W.’s emotional distress. We find this claim justiciable,
despite Father’s lack of an appeal, because it has the potential to
cause Mother prejudice, and may have caused Mother prejudice
already, as evidenced by the juvenile court’s custody orders.
We decline to address Mother’s appeal as to count c-2, which is
also based on Father’s actions.
As to the second appeal, Mother’s appointed counsel filed a
brief under In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.),
asserting that there were no appealable issues. Mother’s
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2
supplemental brief does not raise any new, cognizable legal
issues that were not in the first appeal. However, we reverse and
remand for reconsideration of the appealed custody orders. The
juvenile court erred in sustaining jurisdiction based on count c-1.
This finding may have erroneously impacted the exit orders,
which leave Mother significantly worse off as to custody than
when the dependency proceedings began.
We affirm in part, reverse in part, and remand for
reconsideration of the exit orders consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
I. Pre-Petition Events
Mother and Father were married in 2007. Their only child,
M.W.,2 was born in April 2008.
Mother filed for divorce in 2014. After a trial in March
2018, the family court issued a dissolution of marriage judgment
and custody orders. The custody orders gave primary physical
custody of M.W., who was then almost 10 years told, to Mother.
Father had physical custody every other weekend and
Wednesdays. A few months later, the court granted Mother sole
legal custody after holding Father in contempt of court for failure
to report income.
On January 25, 2021, when M.W. was 12 years old, Father
refused to return M.W. to Mother at the end of his scheduled visit
time. Mother filed an ex parte request with the family court
2 M.W. changed their name and pronouns after briefing in
the first appeal, and this change is reflected in Mother’s
supplemental brief in the second appeal. For consistency with
the juvenile court, briefing, and court records, we use “M.W.”
as the child’s name, but use their preferred gender-neutral
pronouns, which are they/them/their/themselves.
3
seeking return of M.W. It is not clear what occurred with this ex
parte request, but it was apparently unsuccessful. Mother filed a
second ex parte request, this time with counsel, on January 29,
2021. The family court denied the request on the ground that
there was an insufficient showing of risk of removal of M.W. from
the state to merit a grant of the order.
The same day Mother filed her first ex parte request, the
Los Angeles County Department of Children and Family Services
(DCFS) received a hotline referral about M.W. It alleged that
M.W. was cutting themselves after being at Mother’s home.
The caller also stated that M.W. does not eat when they are at
Mother’s home, and that Mother “went berserk” in the kitchen
recently and “slammed” cabinets.
That same day, DCFS sent a social worker (department
investigator or DI) to Father’s home to interview M.W. M.W. told
the social worker that they have been cutting themselves since
they were seven years old. They also said that they do not eat at
Mother’s home because they do not want to be “obese” like
Mother. M.W. expressed that they did not want to live with
Mother and preferred to live with Father. M.W. described
Mother as “abusive.” When asked to elaborate, M.W. stated that
Mother once put laxatives in M.W.’s food, Mother “is constantly
yelling at [them],” and Mother yells approximately four times a
week.
On February 1, 2021, the DI interviewed M.W.’s therapist.
The therapist was concerned that if M.W. were returned to
Mother, M.W. would self-harm and have suicidal ideation.
M.W. had a history of cutting themselves with a knife and
considering suicide, as detailed below. M.W. had been in therapy
4
at this point for several years, at least since it was ordered by the
family court in 2017.
On February 2, 2021, Father filed an ex parte request in
family court stating he did not want to return M.W. to Mother.
On February 3, 2021, the family court ordered Father to return
M.W. to Mother by 8:00 p.m. that day. Father returned M.W. to
Mother.
On the morning of February 4, 2021, M.W. was brought to
a hospital, apparently on M.W.’s therapist’s recommendation.
M.W. was placed on a hold for suicidal ideations and their history
of self-harm.
According to an anonymous caller to the DCFS hotline,
M.W. did not want to go home to Mother when they were released
from the hospital. The caller said that if M.W. could be released
to Father, then they would not self-harm. The caller also said
that Mother has “rage issues” and “responds with more force than
necessary.” The caller did not elaborate.
On February 10, 2021, a judge granted DCFS’s request to
remove M.W. from Mother and place them with Father.
II. Petitions and Detention Hearing
On February 17, 2021, DCFS filed its first section 300
petition. The petition alleged that Mother had emotionally
abused M.W. within the meaning of section 300, subdivision (c)
by “yell[ing]” at M.W. on “numerous prior occasions” and causing
M.W. “extreme emotional distress.”
That same day, on February 17, 2021, the court held a
detention hearing on the first petition and detained M.W. from
Mother.
5
In March 2021, DCFS filed a first amended petition, which
was then superseded by a second amended petition filed in April
2021.
The second amended petition, which the court ultimately
sustained, again alleged that M.W. came within the
jurisdiction of the juvenile court under section 300, subdivision
(c). There were now two counts alleged under subdivision (c).
First, count c-1 alleged that Mother had “emotionally abused”
M.W. because on an “ongoing basis” Mother had “yelled” at M.W.
This had “caus[ed] the child to experience extreme emotional
distress.” Second, count c-2 alleged that both Mother and Father
had “created a negative and endangering environment due to the
child being caught in the middle of a bitter, contentious, and
protracted custody battle, which has resulted in the child
suffering serious emotional damage.”
III. Jurisdictional and Dispositional Hearing; Mother’s
First Appeal
On May 6, 2021, the juvenile court held a jurisdictional and
dispositional hearing on the second amended petition. By that
time, Mother and M.W. had not seen each other since early on
the morning of February 4, 2021. M.W. had refused all contact,
including joint therapy with Mother. Father waived his rights
and pled no contest.
The juvenile court held a contested hearing on the
allegations concerning Mother. The court sustained the second
amended petition under section 300, subdivision (c) as to Mother
on counts c-1 and c-2. In doing so, the court did not cite any
specific conduct, other than yelling, in finding that Mother’s
actions had caused M.W.’s emotional distress or were at risk of
causing it. The juvenile court found that the behavior M.W.
6
exhibited could not be attributed to a “garden variety divorce”
and stated that Mother’s counsel “is correct . . . the minor was
unable to describe exactly what the yelling was about, but I think
that level of yelling can reach a level, and quite clearly has based
on the circumstantial evidence in the record, to constitute the
type of abuse” alleged against Mother. The court then declared
M.W. a dependent of the court and placed M.W. in the home of
Father.
Mother filed an appeal in June 2021. Father did not
appeal.
IV. Section 364 Hearing, Exit Orders, and Mother’s
Second Appeal
On November 4, 2021, the juvenile court held a section 364
judicial review hearing where it terminated jurisdiction, but it
stayed the termination until it issued custody orders.
On November 12, 2021, the court held a custody order
hearing. Over Mother’s objections, the court terminated
jurisdiction, ordered physical custody of M.W. to Father, and
ordered joint legal custody to both parents. It gave Father the
tie-breaking vote as to legal custody. Mother was to have visits
in a therapeutic setting “as arranged by the parents.”
Mother appealed the November 12 order. Mother’s
appointed counsel filed a brief in that appeal pursuant to Phoenix
H., supra, 47 Cal.4th 835. Mother filed a timely supplemental
brief asserting her own arguments.
V. M.W.’s Prior Child Welfare and Mental Health
History
According to M.W., they began self-harming when they
were seven years old, which is sometime in 2015 or the beginning
of 2016. M.W. began cutting themselves at school when they
7
were stressed. They began their self-harm by scratching their
legs with scissors and later used a knife.
M.W. said that both of their parents were aware of their
cutting since they were about eight or nine years old. According
to M.W, when they were nine, they began cutting themselves
when they had to return to Mother’s home from Father’s. This
was around the time that they were told by an unidentified
individual that Mother wanted primary custody.3
Mother said she became aware of M.W.’s cutting when
M.W. was nine years old. At that time, Mother said that M.W.
would use their nails to scratch themselves. Mother reported
that she was told to leave the cutting issue to M.W.’s therapist,
who would track the cutting episodes. Mother was to hide knives
from M.W. and monitor M.W.’s emotions.
On the night of September 11, 2019, Mother took M.W. to
the emergency room for cutting and suicidal ideation. A
therapist had reported seeing signs of M.W.’s self-harm to M.W.’s
school. The therapist said that she had tried to contact Father
who had blocked the therapist’s number and was refusing to take
M.W. to therapy. The medical professionals at the emergency
room recommended a “partial hospitalization program” for M.W.,
and continued therapy and medication (M.W. was already taking
Zoloft when they arrived at the hospital).
3 After informally separating sometime around 2012, the
parents initially shared physical custody “50-50” under a “verbal
agreement.” After the family court finalized the divorce and
issued the custody order in 2018, the arrangement became
Father having custody every other weekend and Wednesdays.
8
A caller to the DCFS child protection hotline reported
M.W.’s September 2019 hospitalization. During DCFS’s
investigation of this incident, it was discovered Father did not
approve of M.W. taking medication or attending the
recommended partial hospitalization program, so they never did
the program, which required both parents’ participation.
M.W. also stopped taking medication due to M.W.’s “lack of
compliance with medication and lack of desire to continue.”
While investigating M.W.’s hospitalization, the DI asked
M.W. about their “triggers,” and they replied “stuff with [their]
parents.” The DI also asked Father. Father stated that he
thought M.W. had been getting worse in the six months before
the hospitalization due to a change in custody arrangements,
which he admitted took place three years prior. He thought
Mother was partly to blame, but he did not elaborate besides
stating that Mother and M.W. had a “strained relationship.”
At some point, Father agreed to call M.W.’s therapist and to
attend a “safety meeting,” so DCFS closed the referral as
inconclusive.
In an August 2020 e-mail, Mother informed M.W.’s
therapist that she had seen scratches on M.W.’s neck the night
before M.W. was going to see Father, who M.W. had not seen in a
long time. It is not clear what the therapist did with this
information.
In September 2020, M.W. was diagnosed with an eating
disorder by a medical doctor who wanted M.W. to be seen by a
psychiatrist. It is not clear if M.W. ever saw a psychiatrist.
The family next came to the attention of DCFS on
January 25, 2021. DCFS received a call to its hotline. The caller
reported that Father said that M.W. had been cutting themself
9
while at Mother’s home, it was “really bad” at Mother’s, and
M.W. was afraid of Mother. According to the reporting party,
M.W. spoke to their therapist that same day and M.W. said that
they would not self-harm if they were at Father’s house.
On February 4, 2021, after the family court ordered M.W.
returned to Mother based on the custody order, M.W. was
hospitalized a second time based on the request of their therapist.
A caller to the DCFS child protection hotline that same day said
that when questioned about Mother’s alleged emotional abuse,
M.W. said that Mother “requires codependency, she[’s] bipolar,[4]
yells.” M.W. also allegedly told the caller that Mother “plays the
victim” and was out of M.W.’s life and was now “coming back and
has full legal custody and partial physical custody.”5
When questioned by DCFS in March 2021 about what
Mother was doing to cause M.W.’s symptoms, Father said that
Mother was “very rigid in her expectations of achievement” and
she “lashes out and yells at [M.W.].” He did not know what
Mother said when yelling.
4 There is no evidence in the record that Mother has been
diagnosed with a mental illness. Father told DCFS that Mother
had been diagnosed with borderline personality disorder, but this
was later found not to be true. The DCFS investigator described
Father as constantly diagnosing Mother with mental health
issues, and himself with posttraumatic stress disorder due to
Mother.
5 The parties do not point us to any evidence that there was
a gap in Mother’s relationship with M.W. or custody. Because
Mother had primary custody until the removal order in this case
in February 2021, it is unclear what this statement attributed to
M.W. by the unknown caller is based upon.
10
DCFS also questioned the doctor who treated M.W. in
February 2021. The doctor stated that M.W. reported that
Mother was impacting their mental health, but would not give
specifics, aside from saying that Mother yelled. The doctor also
stated that despite M.W.’s characterization of cutting as
“situational” and due to Mother, cutting is rarely situational and
does not resolve by going from one home to another.
According to the DCFS jurisdictional/dispositional report
dated April 7, 2021, Mother “was blamed for [M.W.’s] self-
harming behaviors albeit nobody could provide a coherent and
cohesive narrative regarding mother’s alleged abuse of [M.W.].
As the investigation progressed, father when [sic] unable to
coerce mother to agree to his terms and conditions regarding
[M.W.’s] living arrangement, [M.W.’s] self-harming behavior
escalated.” The report went on to describe behavior by Father
that it viewed as harming the Mother-child relationship. It also
noted the ways that Father had prevented M.W. from getting
medication and therapy. The same report quoted M.W.’s
therapist as telling DCFS that M.W. is “full of different stories,”
“manipulative and lies,” and Mother has been “made to look like
a monster. I have no information to support why.”
Between the detention hearing, when M.W. was removed
from Mother, and adjudication, there is only one report of self-
harm in the record. Father reported to the DI that M.W. had cut
themselves because their cat was euthanized, which Father
described as “understandable.”
11
DISCUSSION
I. Mother’s First Appeal Is Justiciable as to Count C-1
We begin by addressing whether Mother’s first appeal is
justiciable.
Mother appealed the juvenile court’s assumption of
jurisdiction, but the juvenile court terminated jurisdiction on
November 12, 2021. Even where the juvenile court has
terminated jurisdiction, where a jurisdictional finding serves as
the basis for dispositional orders that are also challenged on
appeal, “the appeal is not moot.” (In re D.P. (Jan. 19, 2023,
S267429) ___Cal.5th___ [2023 Cal.LEXIS 131 at p.*26].)
Accordingly, Mother’s appeal of the jurisdictional order has not
been rendered moot by the juvenile court’s subsequent
termination of jurisdiction. The juvenile court assumed
jurisdiction over M.W. not only due to Mother’s actions alleged
in count c-1, but also due to both parents’ actions alleged in count
c-2. Father did not appeal. “[W]here jurisdictional findings have
been made as to both parents but only one parent brings a
challenge, the appeal may be rendered moot.” (In re D.P., supra,
___Cal.5th___ [2023 Cal.LEXIS 131, at p. *27].) However, we
have discretion to address the merits of a jurisdictional challenge
by only one parent, where, as here, the jurisdictional ruling could
be prejudicial to the appellant. (Id. at p. *30.) In sustaining
count c-1, the juvenile court found that Mother emotionally
abused M.W. by engaging in conduct above and beyond that
alleged against both parents in count c-2. This could be
prejudicial to Mother and have other consequences for Mother
beyond jurisdiction. It may have already had consequences for
Mother in this very case. Before this dependency proceeding,
Mother had primary physical custody of M.W. and full legal
12
custody. She now has no physical custody and joint legal custody.
While it is not clear from the record, Mother may have been
prejudiced by the challenged jurisdictional ruling that was
premised solely on her actions. We therefore exercise our
discretion to consider Mother’s appeal as to count c-1.6
We do not address count c-2. Unlike count c-1, there is no
indication that count c-2 prejudiced Mother, or may in the future.
Mother is not accused of additional conduct beyond that of what
she allegedly shared with Father, and Father was not prejudiced
by it. Indeed, he was significantly better off in terms of custody
orders at the end of the dependency proceeding than at the
beginning.
II. The First Appeal
Appellate courts review challenges to the juvenile courts’
jurisdictional findings and dispositional orders for substantial
evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) Substantial
evidence “ ‘is not synonymous with any evidence. [Citations.]
A decision supported by a mere scintilla of evidence need not be
affirmed on appeal.’ ” (In re Yolanda L. (2017) 7 Cal.App.5th 987,
992.)
6 DCFS filed its brief in the first appeal on March 10, 2022,
after the juvenile court terminated jurisdiction on November 12,
2021. DCFS did not argue that we lack jurisdiction, or otherwise
assert that we should dismiss the case as moot. We take this as
an indication that they have no objection to our review of this
matter on the merits. Because we have an independent duty to
ensure that we have jurisdiction, we have addressed this issue.
13
Count c-1 alleged that “[o]n numerous prior occasions
[Mother] . . . emotionally abused the child, in that, on an ongoing
basis, the mother yelled at the child causing the child to
experience extreme emotional distress.” “The Mother’s ongoing
abuse of the child places the child at substantial risk of suffering
serious emotional damage . . . .”
Under section 300, subdivision (c), the juvenile court may
exercise jurisdiction over a child when “[t]he child is suffering
serious emotional damage, or is at substantial risk of suffering
serious emotional damage, evidenced by severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward
self or others, as a result of the conduct of the parent or guardian
or who has no parent or guardian capable of providing
appropriate care.” (Ibid., italics added.)
Where the parent’s conduct is the alleged cause of the
emotional damage, the agency must prove the offending parent’s
conduct, causation, and emotional harm. (In re Roxanne B.
(2015) 234 Cal.App.4th 916, 921.) Mother does not deny that
M.W. exhibits evidence of emotional distress, but argues there is
insufficient evidence that her alleged conduct in count c-1 caused
it.
We agree. There is scant evidence linking Mother’s alleged
ongoing yelling to M.W.’s emotional distress, let alone the
“emotional abuse” as alleged in the petition. The addendum
report prepared for the jurisdictional hearing stated that M.W.
had only identified one thing about Mother as a source of M.W.’s
emotional distress: her yelling. When asked by DCFS and
medical professionals if Mother used profanity or said anything
in particular when yelling, M.W. could not say. Aside from
yelling approximately four times a week, slamming cabinets on
14
one occasion, and being rigid in expectations of achievement,
there is nothing specific identified about Mother as constituting
the alleged emotional abuse.
The appellate court in In re Alexander K. (1993)
14 Cal.App.4th 549 (Alexander K.) was faced with the question of
“how can a court evaluate whether a child of a ‘broken’ marriage
suffers or is at risk of suffering serious emotional damage as a
result of the conduct of a parent—as opposed to the inevitable
tensions that result from the marital dissolution itself and
ensuing visitation disputes—when the offending conduct is not
specified? What level or type of behavior triggers the statute
under these circumstances?” (Id. at p. 558.) To answer that
question, the court looked at the legislative history of section 300,
subdivision (c) and reasoned, “[i]t is clear from the overall scheme
that the parental conduct branch of subdivision (c) seeks to
protect against abusive behavior that results in severe emotional
damage. We are not talking about run-of-the-mill flaws in our
parenting styles—we are talking about abusive, neglectful and/or
exploitive conduct toward a child which causes any of the serious
symptoms identified in the statute.” (Alexander K., at p. 559,
italics added.)7 Here, there is no evidence that Mother’s yelling
was demeaning, mean, irrational, or otherwise abusive. We must
tread carefully when a case presents parental conduct that may
have upset the minor, but falls within the commonly accepted
range of disciplinary communication between parents and
children.
7 We favorably cited this reasoning in Alexander K. in our
decision in In re Mariah T. (2008) 159 Cal.App.4th 428.
15
The timeline of events also suggests that Mother was not
the cause of M.W.’s self-harm and suicidal thoughts. M.W. told
DCFS that they began cutting when they were seven years old,
and only when they were stressed at school. M.W. said they were
“okay with [their] Mother” until age nine. M.W. also stated that
when they were 10 years old, their custody arrangement changed
from 50-50 to Father having Wednesdays and every other
weekend. M.W. said that a year after this change, when they
were 11, they began feeling “hopeless” and their “eating disorder”
commenced. M.W. did not know what triggered their eating
disorder, but they said they were self-conscious about their
weight. In 2019, when M.W. was first hospitalized, they said
that their self-harm was trigged “mainly [by] stuff with [their]
parents.” They did not specifically mention Mother. After M.W.’s
second hospitalization in February 2021, a DCFS social worker
reviewed text messages between Mother and M.W. sent the week
before. The social worker concluded that M.W. did not seem
fearful of their Mother, in distress, or having any “discord” with
Mother in the text messages. The text messages between Mother
and M.W. before M.W.’s February 4 hospitalization consist of
memes about politics and millennials, photos of M.W. with other
children, and discussions of the weather and M.W.’s cat being
sick.
Nowhere did M.W. directly say that Mother caused their
feelings and self-harming behaviors. M.W. said they progressed
from self-harming just at school to also upon M.W.’s return to
Mother’s house. But M.W. self-harmed at Father’s house on at
least one occasion when their cat died, which was after they last
saw Mother. Father also did not always report M.W.’s cutting or
take them for medical care.
16
The DCFS reports prepared for the jurisdictional hearing
were also devoid of evidence of causation. This is despite
containing notes of interviews with multiple mental health
professionals who had treated M.W. Both M.W.’s psychiatrist
and therapist reported that M.W. had not disclosed anything
specific regarding abuse, being harmed, or feeling unsafe with
Mother, but M.W. said that they wanted to live with Father.
M.W.’s current therapist thought that remote classes due to the
pandemic, then a transfer to a new school with in-person classes,
and M.W. deciding to stop taking medication in April 2020 were
contributing to M.W.’s escalating emotional distress before the
second hospitalization in early 2021. A different therapist who
had treated M.W. in the past said M.W. was “manipulative and
lies,” and did not know why Mother had been made to “look like a
monster.” A medical doctor opined that despite M.W.’s
characterization of their cutting as “situational” and due to
Mother when they were at the hospital in February 2021, cutting
is rarely situational and does not resolve by going from one home
to another.
Nor is there evidence that M.W. was at risk of future abuse
by Mother. Before the jurisdictional hearing, Mother sought to
change her behavior by asking for specifics of what she was doing
to M.W. so that she could change. (See In re A.J. (2011) 197
Cal.App.4th 1095, 1106 [distinguishing § 300, subd. (c) case on
the basis of whether the parents had shown a willingness to
change their behavior].)
Our careful review of the record shows a difficult divorce,
an escalating custody dispute, and a 12-year-old who was deeply
emotionally disturbed and refused to return to their Mother
because they preferred living with their Father. The juvenile
17
dependency courts must be cautious to ensure that contentious
custody disputes properly remain in the family law courts, and
that allegations of inappropriate parental behavior are properly
substantiated. (In re John W. (1996) 41 Cal.App.4th 961, 975
[“The juvenile courts must not become a battleground by which
family law war is waged by other means”].) Here, there is ample
evidence of a bitter custody dispute between the parents. But the
record lacks sufficient evidence of the required nexus between
Mother’s actions and M.W.’s mental distress. The juvenile court
erred in focusing on M.W.’s “behavior and reactions, not the
[parent’s] behavior.” (Alexander K., supra, 14 Cal.App.4th at
p. 559.)
We do not find sufficient evidence that Mother’s yelling
caused M.W.’s emotional distress.
III. The Second Appeal
In Mother’s second appeal, she challenges the juvenile
court’s decision to terminate jurisdiction and the exit orders
regarding custody. We affirm as to the termination of
jurisdiction because she has raised no appealable issues, but we
reverse and remand for reconsideration of the custody orders.
Mother’s counsel filed a brief in the second appeal pursuant
to Phoenix H., supra, 47 Cal.4th 835. The brief stated that
counsel was not able to identify any appealable issues.
Mother filed a timely supplemental brief asserting her own
arguments. She argues that the juvenile court erred in
terminating jurisdiction over M.W. and by changing the custody
orders in Father’s favor. In support, she makes several claims.
Mother asserts that the juvenile court erred by failing to release
all transcripts, but it is not clear if this is true or is relevant, as
this allegation is unsupported. There also is a reporter’s
18
transcript in the record that corresponds to the two hearing dates
on which the orders in the second appeal are based.
Mother also vaguely argues that her due process rights
were violated because she was not able to cross-examine adverse
witnesses. No witnesses were called at the November 2021
hearings. A review of the record shows that Mother wanted to
call a DCFS social worker to testify. Counsel’s brief states that
this was to correct information in an incorrect report submitted
by the social worker. But Mother requested neither a
continuance, so she could call the social worker, nor a contested
hearing. DCFS also recognized a mistake in its prior report in
regard to which parent held education rights, and it filed a Last
Minute Information acknowledging this mistake prior to the
November hearings. Mother does not explain her assertion
further, so it is not clear if this is the mistake that is relevant to
her alleged due process violation.
Mother also argues that the court failed to explain how it
considered exposure of M.W. to domestic violence by Father when
making its custody orders. This argument is raised for the first
time on appeal. Mother does not cite any legal authority that the
court was required to make such a finding on the record.
Regardless, for other reasons, as stated below, we reverse and
remand the custody orders.
Mother fails to support her various claims with citation to
legal authority, as she was required to do to avoid waiving her
claims. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley
(1995) 10 Cal.4th 764, 793; United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146, 153.) This is
true even for a brief filed by a party who is unrepresented by
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counsel. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–
1247.)
In sum, we have reviewed Mother’s brief in light of the
record and find that she has not raised any new, colorable claim
of reversible error or other legal defect for review in her second
appeal. The claims in Mother’s second appeal are therefore
dismissed, except as to the custody orders. (In re Sade C. (1996)
13 Cal.4th 952; Phoenix H., supra, 47 Cal.4th at p. 846.)
The November 12, 2021 custody orders favor Father over
Mother. They may have been influenced by the juvenile court’s
flawed finding that Mother had caused M.W. emotional abuse in
count c-1. The only other basis for finding jurisdiction over M.W.
was that both parents caused M.W. emotional harm through
their actions during their divorce in count c-2. Yet, before this
case, Mother had primary physical custody and full legal custody
over M.W. The exit orders gave Father full physical custody and
shared legal custody with tie-breaking authority over Mother.
This suggests that the erroneous finding as to count c-1 may have
impacted the exit orders as to custody. We therefore reject the
claims in the second appeal, including the challenge to the
termination of jurisdiction, except as to the custody orders.
We reverse and remand for reconsideration of the exit orders
regarding custody.
DISPOSITION
We reverse the juvenile court’s assumption of jurisdiction
over M.W. under section 300, subdivision (c), as to count c-1 only.
The exit order terminating jurisdiction is affirmed. The exit
orders regarding custody are reversed and the matter is
remanded with directions to hold a new section 364 hearing to
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reconsider the final custody orders in accordance with the views
expressed in this opinion.
*
HARUTUNIAN, J.
We concur:
STRATTON, P. J.
WILEY, 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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