In re Cole L. ( 2021 )

Filed 10/19/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re COLE L. et al., Persons B310319
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No.
20CCJP01807A, B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ASHLEY L. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Juvenile Court Referee. Reversed.
Janelle B. Price, under appointment by the Court of
Appeal, for Defendant and Appellant Ashley L.
Landon W. Villavaso, under appointment by the Court of
Appeal, for Defendant and Appellant Wesley S.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
__________________
The Los Angeles County Department of Children and
Family Services (Department) filed a dependency petition
pursuant to Welfare and Institutions Code section 300,
subdivisions (a) (serious physical harm inflicted nonaccidentally)
1
and (b)(1) (failure to protect) in March 2020 on behalf of now-
five-year-old Cole L. and three-year-old Mckenzie L. based on an
incident of domestic violence between Ashley L. and Wesley S.,
the children’s mother and presumed father. At the jurisdiction
hearing nine months later, the juvenile court sustained both
counts, finding “there is a long history of these parents having
some domestic violence issues.” The court declared the children
dependents of the juvenile court and ordered continued
supervision by the Department while the children remained in
Ashley’s home.
Ashley and Wesley appeal the jurisdiction findings and
disposition orders, contending the court improperly relied on
unalleged acts in making its findings and there was insufficient
evidence to support a finding the children were at substantial
risk of serious physical harm by the time of the jurisdiction
2
hearing. We agree with their latter argument and reverse.
1
Statutory references are to this code unless otherwise
stated.
2
As reflected in minute orders from the juvenile court, on
September 22, 2021 the Department filed a subsequent petition
pursuant to section 342, apparently based on concerns regarding
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The March 20, 2020 Incident
On March 20, 2020 officers from the Los Angeles Police
Department (LAPD) responded to a call reporting “screaming,
3
yelling, banging and slamming” at the family home. When the
officers arrived, they heard loud music. No one answered their
initial requests to enter the residence. Ashley ultimately opened
the door.
The home was in disarray, and the officers observed
evidence of a domestic violence altercation: There was a broken
phone on the floor; Ashley “had bruises and scratches”; Wesley
“had scratches.”
substance abuse by Ashley. On September 27, 2021 the court
modified its earlier home of parent order, detained Cole and
Mckenzie from Ashley and placed them with their maternal
grandmother. A jurisdiction and disposition hearing on the
section 342 petition is now scheduled for November 5, 2021. (We
remind counsel they have a “duty to bring to the appellate court’s
attention postappellate rulings by the juvenile court that affect
whether the appellate court can or should proceed to the merits.”
(In re N.S. (2016) 245 Cal.App.4th 53, 57.).) The unresolved
subsequent petition does not moot Ashley’s challenge to the
juvenile court’s initial exercise of dependency jurisdiction based
on a finding Cole and Mckenzie were at a substantial risk of
serious physical harm due to their parents’ purportedly long
history of domestic violence.
3
Ashley, the two children and the maternal grandmother
live in the three-bedroom apartment. Ashley sleeps in one
bedroom; Cole in a second bedroom; and Mckenzie and the
maternal grandmother in the third bedroom. According to
Ashley, Wesley does not live with the family.
3
Both children were sleeping. Mckenzie was “drowsy and
not alert” and could not be awakened; she appeared to the officers
to be under the influence of something. Cole was also drowsy
“but not as bad.” Concerned for the children, the officers
contacted the child protection hotline to report child
endangerment. The children were taken to the hospital to be
examined. Blood and urine tests for both children were negative.
Neither child had any marks or bruises that would indicate abuse
or neglect.
Ashley and Wesley were arrested for suspicion of injuring a
child (Pen. Code, § 273a, subd. (a)), a charge that was not
pursued. No domestic violence charges were filed.
Interviewed by a Department social worker the following
day while still in a jail holding cell, Ashley explained she had
been asleep when the officers arrived at the home. Earlier, she
had discovered Wesley—her boyfriend and the father of Cole and
Mckenzie—was unfaithful to her, and the two of them had a loud
argument. Ashley then walked away and lay down where the
children were already napping. Ashley denied there had been a
physical altercation and said there was no history of domestic
violence between her and Wesley, although she acknowledged
they had had “a couple of arguments.” Ashley said she and
Wesley do not live together, he is not at the home often, and “we
have gone as long as nearly a year without actually seeing each
other.” She said there had been one prior occasion when the
police had been called, but she had asked Wesley to leave and he
did.
The social worker also interviewed the LAPD officer who
initially responded to the domestic disturbance call. The officer
explained she was concerned the children had been exposed to
4
domestic violence and they appeared to be under the influence of
alcohol. Consistent with the initial report to the Department, the
officer stated “mother and father had scratches and bruises,
which were indicative of a domestic violence altercation.”
2. The Children’s Detention and Release to Ashley
The children were temporarily removed from their parents
on March 26, 2020 pursuant to a warrant issued on March 24,
2020 and placed with their maternal grandmother,
Donnamarie F. On March 30, 2020 the Department filed a
dependency petition, alleging in identical language in counts
under section 300, subdivisions (a) and (b)(1), “On 03/20/2020, the
children, Cole A. L[.] and Mckenzie L[.]’s mother, Ashley F. L[.,]
and father, Wesley [S.,] engaged in a violent altercation in the
children’s home in which the mother and the father sustained
scratch marks and bruises to their bodies. Such violent conduct
on the part of the parents endangers the children’s physical
health and safety, and places the children at risk of serious
physical harm, damage and danger.”
The Department’s March 30, 2020 detention report, in
addition to describing the March 20, 2020 incident as reported by
the LAPD and the social worker’s March 21, 2020 interview with
Ashley, provided details concerning dependency proceedings in
2013 involving Ashley’s older daughter, Maya. Maya had been
declared a dependent child of the juvenile court based on a
sustained petition alleging Ashley had an unresolved history of
alcohol abuse and had been under the influence of alcohol while
the child was in her care. On February 11, 2014 the court
terminated its jurisdiction and issued a juvenile court custody
order awarding sole legal and physical custody of Maya to the
child’s father, Aaron H.
5
In her interview with the Department’s social worker,
Ashley stated she did not use drugs and did not have a history of
substance abuse, but acknowledged her history with the
Department and reported she had a driving-under-the-influence
incident in her past. She said she suffers from anxiety and
sometimes depression and is taking medication (sertraline) to
manage her mental health.
Following his arrest by the LAPD on March 20, 2020,
Wesley was transferred to the custody of the San Bernardino
County Sheriff on an outstanding bench warrant. He was not
available to be interviewed for the detention report. Cole and
Mckenzie were too young to make meaningful statements.
However, the social worker observed them to be comfortable and
happy with Ashley.
Donnamarie lives with Ashley and the children. In her
initial interview Donnamarie said she had not been at home
during the incident leading to LAPD’s domestic disturbance
response and did not know what had happened. She told the
social worker she and Ashley had an argument several years
earlier. After Donnamarie “vented” about the argument to her
physician, he called Adult Protective Services, which contacted
Donnamarie several times to make sure she was not a victim of
abuse. Donnamarie explained the argument was verbal only and
she was not a victim. However, a Department incident report
based on an August 21, 2018 referral indicated in February 2018
Ashley had repeatedly hit Donnamarie’s back and head while
Ashley was holding Cole. Donnamarie pepper-sprayed Ashley
and left the home. The matter was closed as “inconclusive” on
the recommendation of the social worker involved, based on her
observation that Ashley and Donnamarie “have become very
6
cooperat[ive] out of interest of Cole and Mckenzie. Neighbor,
medical, school and mother’s psychiatrist stated there are no
child safety concerns.”
The detention report also summarized a November 2013
referral that was closed as “unfounded” following allegations of
physical abuse of Maya by her father, as well as several other
inconclusive and unfounded referrals involving Maya.
In the section of the report concerning the need, if any, for
continued detention, the social worker wrote, “According to
mother, and maternal grandmother, father has an unresolved
history of perpetrating domestic violence via arguments against
mother when consuming alcohol which is reportedly provoking
father to become verbally argumentative with mother.”
At the detention hearing on April 2, 2020, Wesley, who was
not present, was found to be the presumed father of both
children. The court detained the children from Wesley and, over
the objection of the Department, released them to Ashley on
condition that Ashley continue to live with the maternal
grandmother, drug test and take any prescribed medication.
Wesley was permitted monitored visitation, which was not to
occur at Ashley’s home.
At the hearing Ashley requested a restraining order to
protect herself, Cole and Mckenzie from Wesley based on
Wesley’s “erratic behavior.” The court issued a temporary
restraining order; but, after numerous continuances, no final
4
order was issued due to Ashley’s inability to serve Wesley.
4
Wesley was released from custody in San Bernardino
County on May 15, 2020, but his whereabouts remained
unknown to Ashley and the Department until he made his first
appearance in the case on January 22, 2021.
7
3. The Jurisdiction/Disposition Hearing
The combined jurisdiction and disposition hearing,
originally scheduled for June 4, 2020, was continued multiple
times and finally held on January 6, 2021. In its report for the
original hearing, filed June 3, 2020, the Department included
excerpts of a further interview with Ashley, who again insisted
there had not been a physical altercation on March 20, 2020.
Ashley described the incident as “a verbal altercation dealing
with fidelity.” She explained, “At one point I had his cell phone
and I asked him to delete from Facebook a girl that he was
cheating with. He refused to do so. I had the phone and tried to
do it myself, and he grabbed it. He refused to delete the girl. He
admitted to cheating. I went in the room where the children
were napping and [lay] down as well. He stayed in the front and
watched TV. Next thing I know there were 99 cops at my house.”
The report left a blank space for the results of Ashley’s weekly
drug tests.
In a follow-up interview Donnamarie, who had previously
said she had not been at the home during the incident, told the
social worker, “It was not an altercation to the extent that the
police made it out to be. They were having an argument over a
phone. Ashley was trying to take the phone away from Wes . . . .
[T]hey were going back and forth and some pushing was going on.
The children were asleep in another room, not even in their
presence.” She described the argument as “a one-time incident.”
Wesley, who was released from San Bernardino County jail in
mid-May 2020, remained unavailable to the Department for an
interview.
In the assessment section of the jurisdiction/disposition
report, the social worker wrote that Ashley had “admitted being
8
in a pushing altercation with Father Wesley S[.] resulting in
scratches on both Mother and Father.” A social worker who
visited the apartment where Ashley, Donnamarie and the
children were living “observed the home to be appropriately clean
and organized. There were no indications of substance use or
abuse, as CSW did not observe any drug paraphernalia or any
indicators of alcohol use in the home.”
The Department recommended the court sustain the
petition, with the children remaining in Ashley’s care if she
continued to live with Donnamarie. Explaining the
recommendation, the report stated, “It is evident that Mother
Ashley L[.] and Father Wesley S[.] have a history of unresolved
domestic violence disputes. Mother acknowledged that Mother
and Father have verbal arguments in the home where the
children reside which have escalated into physical altercations.
However, Mother minimizes the severity of the verbal arguments
between herself and Father and deflects responsibility for their
actions onto others and blames the Los Angeles Police
Department for taking the situation out of proportion. . . . It is
apparent that the parents Ashley L[.] and Wesley S[.] are not
able to effectively communicate with each other and address their
relationship conflict which in turn affects the children.”
A status review report filed August 21, 2020 stated a new,
general neglect referral had been in June when Mckenzie was
found outside on a neighbor’s lawn. The referral was closed as
“inconclusive.” Ashley explained she had fallen into a deep sleep
and believed Cole had opened the safety latch on the apartment
door, allowing Mckenzie to wander outside. Ashley also
explained that she had not enrolled in a parenting course,
notwithstanding her attorney’s advice to be proactive and do so,
9
because there were a variety of different programs, all of which
cost money. She decided she should wait to learn what the court
would actually order her to do. The report indicated Ashley had
12 negative drug tests since the prior report.
An October 29, 2020 last minute information report stated
Ashley continued to provide the children with a safe
environment. The report indicated Ashley had 11 negative drug
tests and one no-show since the prior report.
At the combined jurisdiction/disposition hearing on
January 6, 2021, the court found proper notice had been provided
to Wesley, who was not present, based on the Department’s
completed due diligence efforts to locate him. After the court
5
admitted into evidence the Department’s reports with exhibits,
all parties rested; and the case proceeded to argument.
The children’s counsel asked the court to find the allegation
true, although suggesting pleading under both subdivisions (a)
and (b) was duplicative. Counsel described the March 20, 2020
incident as involving “pushing and shoving” that resulted in
scratches on Ashley’s arm and some bruises, “so, clearly, it was
[a] substantially serious domestic violence incident.” Counsel
also emphasized that Ashley had not yet participated in services.
Ashley’s counsel asked the court to dismiss the petition, noting
the case had been open for nearly 10 months without any issues
regarding the children’s safety. Counsel for the Department
5
The Department’s exhibit list and the court’s order
admitting those exhibits reflect a last minute information report
dated January 6, 2021. That report is not included in the clerk’s
transcript. A reference during argument at the January 6, 2021
hearing indicated it related, at least in part, to the Department’s
efforts to locate Wesley.
10
argued the subdivision (a) and (b) counts were not duplicative,
asserting, “[T]he child was clearly within distance of physical
altercation.” Counsel also argued there had been “previous
incidents of domestic violence between the two.”
The court sustained the petition, stating, “The court’s read
and considered the reports before the court and listened to the
arguments of counsel. I’m satisfied there is a long history of
these parents having some domestic violence issues, and I am
going to sustain the petition as pled (a)(1) and (b)(1) finding by a
preponderance of the evidence.” The children were removed from
Wesley and placed with Ashley under the Department’s
supervision and on condition she reside with the maternal
grandmother. Ashley was ordered to participate in a domestic
violence support group program for victims and submit to random
drug testing once or twice per month. Family enhancement
services, including a 52-week domestic violence class for
perpetrators, were ordered for Wesley.
Wesley made his first appearance in the proceedings on
January 22, 2021. The court again ordered enhancement services
for Wesley to include domestic violence counseling, individual
counseling and random drug testing. His visitation with the
children was to be monitored.
Ashley filed a notice of appeal from the January 6, 2021
jurisdiction findings and disposition orders. Wesley filed a notice
of appeal from the January 22, 2021 orders and has asked that
we liberally construe his notice of appeal to encompass the
January 6, 2021 findings and order, at least some of which
directly affect him. We grant that request. (See generally Cal.
11
Rules of Court, rule 8.100(a)(2); K.J. v. Los Angeles Unified
6
School Dist. (2020) 8 Cal.5th 875, 882-885.)
DISCUSSION
1. Governing Law and Standard of Review
The purpose of section 300 “is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”
(§ 300.2; see In re A.F. (2016) 3 Cal.App.5th 283, 289; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.)
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
child from the conduct of a custodian with whom the child has
6
In his appellate brief Wesley joins Ashley’s challenge to the
sufficiency of the evidence to support the jurisdiction findings.
The Department does not contend jurisdiction over the children is
properly based on Wesley’s conduct alone.
12
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 L.W. (2019)
32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; 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 J.N. (2021) 62 Cal.App.5th 767, 775; 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 Kadence P. (2015)
241 Cal.App.4th 1376, 1383; In re N.M. (2011) 197 Cal.App.4th
159, 165.) The court may consider past events in deciding
whether a child presently needs the court’s protection. (In re
J.N., at p. 775; 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 Kadence P., at p. 1384; see
In re J.N., at p. 775 [“DCFS must establish a nexus between the
parent’s past conduct and the current risk of harm”].) “To
establish a defined risk of harm at the time of the hearing, there
‘must be some reason beyond mere speculation to believe the
alleged conduct will recur.’” (In re D.L., at p. 1146.)
13
“‘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. (2013) 56 Cal.4th 766, 773; see In re I.C. (2018)
4 Cal.5th 869, 892.) However, “[s]ubstantial evidence is not
synonymous with any evidence. [Citation.] To be substantial,
the evidence must be of ponderable legal significance and must be
reasonable in nature, credible, and of solid value.” (In re M.S.
(2019) 41 Cal.App.5th 568, 580; accord, In re J.A. (2020)
47 Cal.App.5th 1036, 1046 [while substantial evidence may
consist of inferences, any inferences must rest on the evidence;
inferences based on speculation or conjecture cannot support a
finding].)
14
2. Substantial Evidence Does Not Support the Jurisdiction
Finding Under Section 300, Subdivision (a)
a. Domestic violence between parents, without more,
does not support a jurisdiction finding under
section 300, subdivision (a)
Exposure to domestic violence may serve as the basis for
dependency jurisdiction. (In re R.C. (2012) 210 Cal.App.4th 930,
941.) “‘“Both common sense and expert opinion indicate spousal
abuse is detrimental to children.”’” (Id. at p. 942; see In re S.O.,
supra, 103 Cal.App.4th at pp. 460-461 [“‘domestic violence in the
same household where children are living is neglect; it is a failure
to protect [them] from the substantial risk of encountering the
violence and suffering serious physical harm or illness from it’”];
see also In re T.V. (2013) 217 Cal.App.4th 126, 135 [“[e]ven
though [the child] had not been physically harmed, the cycle of
violence between the parents constituted a failure to protect
her”].)
Under certain circumstances incidents of domestic violence
between a child’s parents, if they occur in the child’s immediate
presence, may support a jurisdiction finding under section 300,
subdivision (a). (See In re Giovanni F., supra, 184 Cal.App.4th at
pp. 598-599.) For example, if a father strikes an infant’s mother
while she is holding the child or an older child intervenes during
a fight to protect her mother from her father’s abuse, the risk of
harm to the child may be properly viewed as nonaccidental. (See,
e.g., In re M.M. (2015) 240 Cal.App.4th 703, 720 [“the record
shows that minor not only was present during the December 2
domestic violence incident between mother and father, but that
he was ‘at their feet’ during most of the incident and that during
some of the incident, father was actually holding minor while
15
mother was hitting father and while father was choking
mother”].)
The somewhat more common potential for accidental injury
during parents’ physically violent fights in the presence of
bystander children, however, constitutes a failure or inability to
protect the child, creating the potential for dependency
jurisdiction under section 300, subdivision (b)(1) (and possibly
section 300, subdivision (c)), but not subdivision (a). (Cf. In re
T.V., supra, 217 Cal.App.4th at p. 134 [exposing children to
recurring domestic violence may be sufficient to establish
jurisdiction under section 300, subdivision (b)]; In re Daisy H.
(2011) 192 Cal.App.4th 713, 717 [same].) Acts of domestic
violence themselves, of course, are intentional. But a finding
under section 300, subdivision (a), requires evidence of a risk of
physical injury “inflicted nonaccidentally upon the child.” An
unintended injury to a bystander child that results from an
intentional act directed at another—for example, due to an object
thrown by one parent at another during an argument—does not
7
satisfy that statutory requirement.
7
We acknowledge several courts of appeal have disagreed
with this analysis, holding, because domestic abuse is
nonaccidental, an unintended injury to a child as a consequence
of his or her exposure to acts of violence is a proper basis for a
finding under section 300, subdivision (a). (E.g., In re Nathan E.
(2021) 61 Cal.App.5th 114, 121-122; In re Giovanni F., supra,
184 Cal.App.4th at p. 599.) Those decisions fail to recognize the
fundamental difference between a failure to protect a child from
the unintended consequences of intentional behavior and the
deliberate (that is, “nonaccidental”) infliction of injuries upon the
child, the distinction between subdivisions (a) and (b).
16
b. The record is devoid of evidence of a substantial risk
of nonaccidental injury to the children
The Department’s section 300 petition did not allege the
March 20, 2020 altercation between Ashley and Wesley occurred
in the presence of the children, describing it as having taken
place “in the children’s home.” Similarly, in a carefully phrased
statement in the jurisdiction/disposition report, the Department
refers to violent altercations “in the presence or the home of the
children.”
As discussed, domestic violence between parents is
concerning wherever it occurs; but, the deputy county counsel’s
8
assertion to the court notwithstanding, there was no evidence
any violence took place in the presence of Cole or Mckenzie, let
alone under circumstances that could support a finding of a
substantial risk that either child would suffer serious physical
harm inflicted nonaccidentally. To the contrary, it was
undisputed the children were asleep in a bedroom, away from
their parents, during the single domestic disturbance for which
there was any concrete evidence. This evidence was insufficient
to support the court’s subdivision (a) jurisdiction finding.
8
The Department’s suggestion that, by failing to object,
Ashley forfeited on appeal any argument concerning the accuracy
of its lawyer’s statement misses the point. As troubling as
counsel’s misrepresentation would be if knowingly made (see
generally Rules Prof. Conduct, rule 3.3(a)(1)), the issue before us
is whether the evidence in the record supports the juvenile court’s
jurisdiction findings, not whether counsel’s argument, if correct,
would.
17
3. Substantial Evidence Does Not Support the Jurisdiction
Finding Under Section 300, Subdivision (b)(1)
The evidence in the record was certainly sufficient for the
court to find the March 20, 2020 argument between Ashley and
Wesley involved pushing that resulted in scratches on both of
9
them—that is, it was an act of domestic violence. But the
juvenile court did not find that single incident alone created a
substantial risk of serious physical harm to Cole and Mckenzie,
relying instead on the “long history of these parents having some
domestic violence issues.”
Putting aside whether it would be proper to sustain the
petition based on an unalleged history of domestic violence (see,
e.g., In re Wilford J. (2005) 131 Cal.App.4th 742, 751 [“a parent
whose child may be found subject to the dependency jurisdiction
of the court enjoys a due process right to be informed of the
nature of the hearing, as well as the allegations upon which the
deprivation of custody is predicated”]; see also In re Andrew S.
(2016) 2 Cal.App.5th 536, 544; In re Justice P. (2004)
10
123 Cal.App.4th 181, 188), there was no evidence in the record
9
The responding LAPD officer also indicated that Ashley
had bruises on her face. Donnamarie suggested what the officer
observed were marks from Ashley’s skin condition. The social
worker who interviewed Ashley on March 21, 2020 did not
mention any bruising in her report.
10
A juvenile court may amend a dependency petition to
conform to the evidence received at the jurisdiction hearing to
remedy immaterial variances between the petition and proof.
(Welf. & Inst. Code, § 348; Code Civ. Proc., § 470.) However,
material amendments that mislead a party to his or her prejudice
18
that Ashley and Wesley had engaged in multiple acts of domestic
violence over an extended time. Ashley denied such a history, as
did Donnamarie. Although Ashley acknowledged one prior police
response to a call to the home, she denied there had been any
violence and said Wesley complied when she asked him to leave.
No police report or other evidence from that incident was
presented by the Department, nor was there evidence of any
other incidents of domestic violence between Ashley and Wesley.
The apparent basis for the court’s finding, as the
Department concedes, is the social worker’s statement in the
jurisdiction/disposition report that Ashley had acknowledged she
and Wesley “have verbal arguments in the home where the
children reside which have escalated into physical altercations.”
Yet the same social worker’s detailed description of her
two interviews with Ashley, complete with extensive quotations,
included no such admission. To the contrary, according to the
interview summaries, Ashley consistently denied having any
physical altercations with Wesley. Under these circumstances,
we do not consider the social worker’s isolated comment to be
sufficient evidence to support the finding. (See In re I.C., supra,
4 Cal.5th at p. 892 [“[i]t is well settled that the [substantial
evidence] standard is not satisfied simply by pointing to ‘“isolated
evidence torn from the context of the whole record”’”]; cf. In re
J.A., supra, 47 Cal.App.5th at p. 1046; In re David M. (2005)
11
134 Cal.App.4th 822, 828.)
are not allowed. (Code Civ. Proc., §§ 469, 470; In re Andrew L.
(2011) 192 Cal.App.4th 683, 689.)
11
A challenge to the sufficiency of the evidence on an issue as
to which the Department has the burden of proof is not forfeited
19
Recognizing the gap between the record and the juvenile
court’s stated basis for sustaining the petition, the Department
argues the physical altercation between Ashley and Wesley on
March 20, 2020, coupled with Ashley’s denial of the incident and
refusal to participate in services, warranted the exercise of
12
juvenile court jurisdiction. It urges us to uphold the January 6,
2021 findings and order “‘regardless of the correctness of the
grounds upon which the court reached its conclusion,’” quoting
dictum from In re Jonathan B. (1992) 5 Cal.App.4th 873, 876. In
that case, however, the court of appeal held a reviewing court
could affirm the juvenile court’s order sustaining a dependency
petition if any of the several grounds relied upon by the juvenile
court supported the order (id. at p. 875), not that the jurisdiction
by a parent’s failure to object in the juvenile court. (See, e.g.,
In re Joshua G. (2005) 129 Cal.App.4th 189, 200, fn. 12; In re
Brian P. (2002) 99 Cal.App.4th 616, 623.) Thus, contrary to the
Department’s argument, we are not precluded by the absence of
an objection to the social worker’s statement from considering
that it was inconsistent with the detailed recitation in the same
report of Ashley’s consistent denials of any physical violence. As
discussed to be “substantial,” evidence must be reasonable and
credible. (See In re M.S., supra, 41 Cal.App.5th at p. 580.)
12
In its respondent’s brief the Department discusses Ashley’s
child welfare history involving her older daughter, as well as
more recent referrals determined to be unfounded or
inconclusive. While apparently included to color our view of
Ashley’s parenting ability, the Department—quite properly—does
not contend any of those events should be considered in
determining whether domestic violence between Ashley and
Wesley supports jurisdiction under section 300, subdivision (b)(1).
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finding could be affirmed on a ground not articulated by the
court.
To be sure, “‘“a ruling or decision, itself correct in laws, will
not be disturbed on appeal merely because given for the wrong
reason.”’” (People v. Brown (2004) 33 Cal.4th 892, 901.) But here
the juvenile court’s decision was that jurisdiction was proper
based on Ashley and Wesley’s purported long history of domestic
violence; it did not determine jurisdiction was proper based on
the circumstances identified by the Department. The
Department is thus asking us not to affirm a decision by the
court that is by law correct on different grounds but rather to
make an entirely new decision based on a factual finding—that
Cole and Mckenzie were at substantial risk of serious harm based
on those circumstances—not made by the juvenile court. That
decision and finding were for the juvenile court in the first
instance, not this court. (E.g., In re Laura F. (1983) 33 Cal.3d
826, 833 [“our task is not to reweigh the evidence or to express an
independent judgment thereon but merely to decide whether
there is sufficient evidence to support the findings of the trial
court”].)
Even were we to accept the Department’s premise,
however, its position on appeal has several serious flaws. First,
any domestic dispute that escalates into the use of physical force
is a serious matter, appropriately addressed by the juvenile court.
Nonetheless, evaluation of the risk of physical harm to Cole and
Mckenzie from their parents’ argument must recognize that the
incident involved, at most, some pushing and grabbing for
Wesley’s cell phone and took place outside the presence of the
children. Whatever emotional toll such an argument may take on
21
children, the physical danger to Cole and Mckenzie from this
event, the focus of section 300, subdivision (b), was minimal.
Second, the issue at the jurisdiction hearing was not
whether the children were at risk on March 20, 2020 but whether
a significant risk of physical injury existed in January 2021. As
discussed, to make that finding requires evidence the earlier
threatening conduct will recur. (See In re C.V. (2017)
15 Cal.App.5th 566, 572 [“[j]urisdiction ‘may not be based on a
single episode of endangering conduct in the absence of evidence
that such conduct is likely to reoccur’”]; see also Georgeanne G. v.
Superior Court (2020) 53 Cal.App.5th 856, 869 [“a finding of risk
of harm to a child must be based on more than conjecture or a
theoretical concern”].) The record contains no such evidence.
The children, released to Ashley by the court at the detention
hearing, had been living safely with her for more than
nine months. During that period, there had been no further acts
of domestic violence; indeed, there had been no contact at all
between Ashley and Wesley, whose whereabouts remained
unknown. Moreover, although Ashley insisted no physical
altercation had taken place, she recognized Wesley’s potential
danger and proactively sought a restraining order to protect
herself and the children.
Finally, we do not agree with the Department’s argument
that Ashley’s insistence the episode on March 20, 2020 did not
become physical and her “refusal” to participate in services
constitute substantial evidence that physical violence between
13
her and Wesley was likely to recur. While “[o]ne cannot correct
13
Curiously, when attempting to justify a finding that the
altercation involved violence, the Department relies on its social
22
a problem one fails to acknowledge” (In re Gabriel K. (2012)
203 Cal.App.4th 188, 197; see In re V.L. (2020) 54 Cal.App.5th
147, 156), Ashley’s immediate request for a temporary
restraining order, granted at the detention hearing on April 2,
2020, although predicated on Wesley’s “erratic behavior,” rather
than domestic violence, belies any suggestion she lacked
sufficient self-awareness or concern about Wesley’s conduct to be
able to protect her children.
The Department’s assertion that Ashley refused to
participate in services is similarly misplaced. No services were
ordered prior to the jurisdiction hearing other than that Ashley
drug test and take any medication prescribed for her. She
complied with those orders. Her decision to defer participating in
counseling or other services because she did not know what the
court would order, while perhaps not prudent, did not constitute
a “refusal,” and, in any event, is not evidence that domestic
violence with Wesley was likely to recur. More is required to
support a jurisdiction finding. (See In re J.N., supra,
62 Cal.App.5th at p. 776 [“DCFS cannot use such generalities to
satisfy its burden of proving an ‘identified, specific hazard in the
child’s environment’ that poses a substantial risk of serious
physical harm to him”].)
worker’s statement (unsupported as it may be) that Ashley
admitted some pushing had taken place; yet when it turns to
arguing the children remain at risk, it contends Ashley has
consistently denied any physical violence occurred.
23
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
orders are reversed. The juvenile court is directed to dismiss the
dependency petition.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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