In re Victor S. CA2/7 ( 2021 )

Filed 10/26/21 In re Victor S. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
In re VICTOR S., JR. et al., B310088
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct.
No. 20CCJP02743A-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
VICTOR S.,
Defendant and Appellant.
APPEAL from orders of the Los Angeles County Superior
Court, Nichelle L. Blackwell, Juvenile Court Referee. Affirmed in
part and dismissed in part.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
________________________________
Victor S., the father of now-15-year-old Victor S., Jr., 13-
year-old Daisy S., six-year-old Kristopher S. and five-year-old
Frank S., appeals from the juvenile court’s findings that the
children are persons described by Welfare and Institutions Code
section 300, subdivisions (b)(1)1 (as to all children), (c) (as to
Victor, Jr.) and (j) (as to Daisy, Kristopher and Frank), and its
disposition orders, including orders removing the children from
Victor’s custody. Victor contends the jurisdiction findings and the
removal orders are not supported by substantial evidence.
On June 28, 2021, while Victor’s appeal was pending, the
juvenile court terminated its jurisdiction and entered a custody
order awarding the children’s mother, Leticia R., sole legal and
physical custody of all four children, limiting Victor to monitored
visitation with each of them. Victor has filed a separate appeal
from those orders, which is pending in this court. 2
Termination of dependency jurisdiction moots Victor’s
appeal of the disposition orders. We affirm the juvenile court’s
exercise of jurisdiction. (See In re Rashad D. (2021)
63 Cal.App.5th 156, 159.)
1 Statutory references are to this code unless otherwise
stated.
2 We take judicial notice of the June 28, 2021 orders and
Victor’s July 7, 2021 appeal from those orders pursuant to
Evidence Code sections 452, subdivision (d), and 459.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Department’s April 2020 Investigation and the
Amended Dependency Petition
The children came to the attention of the Los Angeles
County Department of Children and Family Services
(Department) on April 9, 2020 when Victor, Jr. told a teacher he
intended to kill himself that day. According to the immediate
response referral to the Department, the four children were
allegedly the victims of emotional abuse by Victor and Leticia,
and Victor, Jr. had made suicidal threats in the past, precipitated
by the parents’ constant fighting and court appearances. Victor
was emotionally unstable and would go to the school crying and
seeking the school’s support for his ongoing custody issues with
Leticia.
The Department’s reports3 stated Victor and Leticia were
divorced in 2018. Although they shared legal and physical
custody of the four children, Victor, Jr. lived with Victor in a
hotel room, Daisy lived with Leticia in a three-bedroom house,
and the two younger boys were exchanged weekly under a 50/50
family law order. Victor wanted full custody of the children. The
parents had continued to appear in family law court following
their divorce.
In an April 10, 2020 interview with a Department
caseworker conducted at the hospital, Victor, Jr. said he had told
his teacher he had “suicidal thoughts” because he had a “big
argument with my dad” about whether Victor, Jr. was failing to
3 The Department’s reports, including reports containing
descriptions of the April 2020 (and other) interviews, were
exhibits admitted without objection by the parties at the
December 18, 2020 jurisdiction/disposition hearing.
3
log onto the school website and sign into school (a required part
of the COVID-19 remote learning protocol). Victor, Jr. had
become stressed at his father’s lack of trust and disappointment
in him and had “an automatic thought of hanging myself or
jumping off the balcony.” Victor had received a call from the
school’s principal, and it was agreed Victor, Jr. should be taken to
the emergency room. Victor, Jr. had arrived at the hospital on
April 9, 2020.
Although Victor, Jr. denied his father had called him
names or denigrated him, Victor, Jr. told the caseworker he
wanted his father to work on the manner in which Victor spoke to
him. His father would say things “in the wrong way because he
does not know how to explain it.”
At times, Victor would incite an argument with Victor, Jr.
or Victor, Jr.’s siblings. Although Victor, Jr. would often become
annoyed when arguing with his father, he only had suicidal
thoughts if they had a big argument. Victor, Jr. had visions of
how he would hurt himself. At one time, he reported, he “looked
in the room” and “had a vision I would be hanged in the room.”
He said he was diagnosed with depression and anxiety and
received therapy once a week.
Victor, Jr. explained he had been living with his father for
three years. His mother frustrated his father, and there was
animosity when his parents interacted. His mother made false
allegations against his father; and, because his mother was a liar,
Victor, Jr. did not communicate with his mother in person or by
telephone. He did not want to live with his mother because he
had lost his trust in her.
In a follow-up interview on April 16, 2020 Victor, Jr., asked
by the caseworker if he had heard his father’s conversations with
4
his mother since returning from the hospital, replied he had
heard Victor because his father talked while in the hotel room
kitchen.4 It caused him stress when he heard his father reply to
his mother, but not to the point of wanting to hurt himself.
The Department interviewed Kristopher on April 16, 2020
at Victor’s home in the presence of Victor’s neighbor. Kristopher
had a difficult time focusing and answering the caseworker’s
questions. When the caseworker asked Kristopher what
happened when he got into trouble, he said “Jr.” (Victor, Jr.) hit
him, but then nodded his head up and down and said yes after
the caseworker asked if his father hit him. When asked where he
was hit and to point to those places, Kristopher said he was hit
everywhere and pointed to his head, arms and legs. He also said
his father pulled his ear. Kristopher told the caseworker he was
scared of his father. Although in an earlier interview he had
denied witnessing his parents fighting or arguing, Kristopher
subsequently responded in the affirmative when asked if he had
ever seen his parents fight and said he was afraid when they did.
Kristopher said, “I don’t want to be here,” but did not respond
when asked why. The caseworker observed a left scrape on
Kristopher’s shin, scars on his knees and a bruise on his right
knee; Kristopher told the caseworker he did not know how he got
the bruises.
Frank was also interviewed on April 16, 2020 in the
presence of Victor’s neighbor. He, too, had difficulty focusing and
answering the caseworker’s questions. When the caseworker
asked Frank what happened when he got into trouble, Frank said
4 Victor’s hotel room home, which was on the third floor, had
two queen beds, a small kitchen, an electric stove, table and
chairs, a television and a separate bathroom.
5
his father hit him. Asked where he was hit, Frank replied,
“[E]verywhere” and, in response to a follow-up inquiry, pointed to
different parts of his body, including his head, arms and legs, and
then pulled on his ear. He said he was scared of his father.
When asked if he would like to be with his father, Frank said he
wanted to be with his mother. The caseworker observed a scrape
on Frank’s knee; Frank said he hurt himself there.
Daisy was interviewed on April 16, 2020 at her mother’s
home. She was free from marks or bruises. Daisy said her
mother disciplined her by taking away her phone. Victor would
just “scream” and sometimes tell her to go with her mother if she
did not want to be with him. She never saw her mother drink
alcohol, but, in the past, she saw her father drink beer
sometimes. Daisy did not know what happened with Victor, Jr.
because she had not been to her father’s home. She had not
visited her father since 2019.
Daisy was aware her parents were having problems
because she would see her mother text and become frustrated or
cry. Daisy said Victor had “done a lot of things to hurt” Leticia.
She heard her father call Leticia “the B word” and told the
children “stuff about my mom that made us believe she is a bad
person.” Daisy said, “[T]here’s been parts when I don’t know
what to do because of my dad, sometimes I wish I didn’t have him
as a father, I wish I wasn’t here, he’s trying to make my life
worse.” Victor had been rude toward her and forced her to visit
his home. Although she denied feeling suicidal, she said she was
diagnosed with depression but was not taking medication. She
felt safe in her mother’s home.
The Department interviewed Victor in April 2020. He said
he was diagnosed with anxiety and depression, had been
6
receiving mental health services since at least 2019 and took
psychotropic medication. Victor acknowledged his criminal
history, which included an arrest for selling methamphetamine,
but denied any substance use or abuse. Although he admitted
having had problems with alcohol in the past, he claimed he had
been sober for two years. Victor declined the caseworker’s
request he submit to a drug test. Victor admitted there had been
verbal abuse between Leticia and him.
Victor reported that Victor, Jr. was autistic and said he was
working on getting Kristopher diagnosed. Victor, Jr. had been in
therapy for three years.
As for the concern regarding Victor, Jr.’s possible self-
harm, Victor told the caseworker he was in the room with
Victor, Jr., but stepped out to receive a call from Victor, Jr.’s
teacher, who informed him of Victor, Jr.’s statement. Victor ran
back to the hotel room. Victor, Jr. had the hotel door open and
was looking beyond the balcony. Victor stopped Victor, Jr. from
hurting himself. According to Victor, he had confronted
Victor, Jr. about the log-in issue after learning of the matter from
Leticia. Victor was upset the school had notified Leticia, not him.
Although denying having been verbally abusive to his son, Victor
admitted he had been upset. He also said he had not needed
Leticia “to nail me.”
Asked if he was aware of how his relationship with Leticia
was affecting the children, Victor explained he and Leticia no
longer speak to each other via telephone and only communicate
by texting; however, he admitted he did not know how to write
and thus spoke on his phone to create texts to Leticia. Although
he would try to speak to Leticia outside his hotel room, where
Victor, Jr. would be unable to hear him, he admitted he
7
sometimes replied to Leticia while in the same room as his son.
During the interview Victor became visibly agitated and
interrupted the caseworker multiple times; he told the
caseworker he becomes upset when speaking of Leticia.
Victor denied using physical discipline, pulling his
children’s ears or hitting them. He said the children always had
bruises that their mother could not explain.
The Department in April 2020 interviewed Maria,5 a friend
of Victor who was also one of Victor, Jr.’s therapists. Maria knew
the family and told the caseworker Victor did not realize what he
said affected the children. She said Victor got “worked up very
easily” and did “not know how to express himself.”
The Department in April 2020 interviewed another of
Victor, Jr.’s therapists, Christopher Richardson, who told the
caseworker Victor, Jr. was diagnosed with depression and had
previously discussed suicidal ideation. Victor, Jr. had
experienced feelings of being emotionally overwhelmed by his
parents’ conflict; and, since the COVID-19 stay-at-home orders
began, he felt extremely overwhelmed and emotional.
Richardson had suggested the parents communicate only via text
to minimize their conflict.
During her April 2020 interview with the Department,
Leticia said Victor, Jr. had been diagnosed with depression after
she and Victor divorced. She denied allegations of emotional
abuse of Victor, Jr.
The Department filed a dependency petition on the
children’s behalf on May 19, 2020, which was later amended by
5 The record does not contain information as to therapist
Maria’s last name.
8
interlineation.6 In the amended petition the Department alleged,
pursuant to section 300, subdivisions (b)(1) (for all four children)
and (j) (for Daisy, Kristopher and Frank), Victor had a limited
ability to provide Victor, Jr. with ongoing care and supervision
due to the child’s mental and emotional problems, and that
limited ability endangered Victor, Jr.’s physical and emotional
health and safety and placed the child’s three siblings at risk of
serious physical and emotional harm. The Department further
alleged pursuant to section 300, subdivision (c) (for Victor, Jr.),
that Leticia and Victor were engaged in an ongoing custody
dispute that placed the child at substantial risk of suffering
serious emotional harm; the parents had engaged in verbal
altercations in the child’s presence; the mother had made false
allegations against the father, resulting in the child refusing to
return to the mother’s home; the child had a diagnosis of
depression and anxiety, had demonstrated suicidal ideations and
had expressed being emotionally overwhelmed due to the ongoing
conflict between the parents; and that conflict between the
parents, and the father’s emotional abuse of the child, placed the
child at substantial risk of suffering serious emotional damage,
as evidenced by severe anxiety, depression, withdrawal, and
aggressive behavior toward himself or others.
6 The initial petition had named both Victor and Leticia as
offending parents for purposes of jurisdiction under section 300,
subdivisions (b)(1) and (j), but on December 18, 2020 the juvenile
court ordered it amended by interlineation by removing
references to Leticia from the subdivisions (b)(1) and (j) factual
allegations.
9
2. The Jurisdiction/Disposition Report and Reports Filed
in October and November 2020
The Department’s jurisdiction/disposition report filed
July 29, 2020 described additional interviews. In a June 23, 2020
interview at home in his father’s hotel room, Victor, Jr. was
initially observed displaying a normal affect but became tearful
as the caseworker discussed his parents and mental health. His
weekly therapy was going “fine,” and his father gave him his
medication daily. He wanted to continue to stay with his father,
who supported his interest in animation, introduced him to new
people like the daughter of a hotel maid and tried to keep him
away from gang life. Victor, Jr. told the caseworker that,
although he felt safe, he also worried a lot, “[e]ven when I’m
trying to rest”; “I think what if someone dies or what if I die.”
Without prompting, Victor, Jr. asked the caseworker, “[W]hy do
my parents have to fight about why they (Kristopher and Frank)
have a bruise and court cases?” Victor, Jr. disclosed an incident
in which he and his father had an argument started by his
father’s anger at his mother. Victor, Jr. had punched his father,
and Victor had punched him back on the lip.
The caseworker on June 23, 2020 spoke to both Kristopher
and Frank. Kristopher said his parents did not hit each other
but they yelled when they talked to each other and he would get
scared and hide when they did. Frank said his father hated his
mother. Although he liked being with both parents, it scared him
when his parents fought; he would hide somewhere when they
did and not come out. He said he would like his family to “not do
bad things.”
Daisy, who was interviewed on June 25, 2020 at her
mother’s home, told the caseworker she did not believe Victor had
10
the ability to provide appropriate care for Victor, Jr. Victor was
going through therapy, and Daisy did not believe he was strong
enough to deal with his and Victor, Jr.’s problems. Victor and
Victor, Jr. would get into fights, and no one was there to stop
them. Daisy was like their therapist when she had stayed with
her father. Victor had a tendency to exaggerate and frequently
made inappropriate statements. When Victor, Jr. expressed his
dislike of a word her father used, Victor would nevertheless
continue saying it. Her father’s jokes about Victor, Jr.’s animals
hurt her older brother, and Victor needed to know to stop. “My
dad threatens to send Jr. to the hospital a bunch of times.” She
did, however, acknowledge one time, when Victor, Jr. was
depressed and wanted to kill himself, her father told Daisy to
give her older brother a hug and not to make jokes or get on her
brother’s nerves.
Asked why she was not visiting Victor, Daisy replied, “[A]
lot has happened between him and me and I haven’t trusted him
for a while.” One time, Victor showed Daisy, Kristopher and
Frank a gun in the car. He told them he was “going to kill
people,” their mother’s friend and the maternal family. He said
Daisy “had to choose who to kill.” Victor would also “make[ ] up
stuff,” such as telling Daisy her mother had a secret boyfriend
and had a child with him. In addition, her father would threaten
to have Leticia deported and to take Daisy away from the home
she shared with her mother and maternal grandmother. He
“threatens to call the cops on us for dumb reasons.” Daisy
explained she wanted to get her mental health in good condition
and to trust her father again before she would be comfortable
visiting him. Asked if she had ever witnessed Victor, Jr. try to
hurt himself, Daisy recalled an incident when he grabbed a knife
11
and said he wanted to kill himself. She said it hurts her when he
does that.
Leticia, interviewed in June 2020, told the caseworker she
missed Victor, Jr., who did not want to see her. Victor used
Victor, Jr. to punish or reward her. Leticia affirmed that the
children had seen the parents argue and had been upset. She
explained she was the quiet one, so she let Victor do the talking.
Victor would call her names like “fuckin slut” while holding
Frank. She did not “go back and forth” with him because the
children were present and she did not enjoy arguing.
Communicating with Victor continued to be difficult. Asked if
there was physical violence between her and Victor, Leticia
responded, “[P]hysical not often; mostly emotional.” Victor,
smelling of alcohol, had punched her in the lip when she had
been pregnant with Victor, Jr. In another instance he had spent
the entire day without her at their apartment drinking with
people. When she returned to their apartment in the evening
and saw beer bottles everywhere, an argument ensued. She
wanted to leave, but he pushed her, and she fell to the floor.
Victor was interviewed in June 2020. He agreed he and
Leticia were unable to get along and acknowledged they had
verbal altercations in their children’s presence. He said, as part
of Victor, Jr.’s autism, Victor, Jr. did not like change or lies. The
day Leticia had texted Victor about Victor, Jr. not doing his
school assignments, Victor asked him why he was lying, and
Victor, Jr. thought Victor was picking Leticia’s side. Victor, Jr. in
the past had choked his maternal grandmother because he had
been angry. Victor, Jr. had felt his mother and maternal
grandmother had lied to him.
12
Victor also said he had been taking care of Victor, Jr. for
three years and denied he was unable to provide ongoing care for
the child. He provided Victor, Jr. access to resources like
therapy, mental health services and tutoring; encouraged his son
to be social with other children at the hotel; bought a guinea pig
to provide his son mental support; purchased animation supplies
for his son; taught Victor, Jr. how to use a pen rather than his
fingers for his tablet to improve motor skills; and ensured his son
regularly maintained his hygiene routine. Although he had been
aware of Victor, Jr.’s history of suicidal thoughts, his son had not
acted on those thoughts until the April 9, 2020 incident.
Victor acknowledged he and Leticia were engaged in an
ongoing custody dispute. He stated he wanted full custody of the
children because he wanted to prove his ability to take care of
them as their father and remove them from the environment in
which he had grown up.
In assessing the children’s safety risks the caseworker
stated the parents had demonstrated no improvement in their
communication, and their lack of insight regarding their built-up
animosity interfered with their ability to have a healthy
co-parenting relationship with their children. As an example,
Victor and Leticia demonstrated an inability to discuss a bruise
or mark on a child while in one parent’s care without the other
parent challenging the parent’s ability to take care of the
children.
The jurisdiction/disposition report also described Victor’s
history of drug and alcohol use. Victor began “drinking hard” at
age 17, consuming alcohol nearly every day. He continued
drinking heavily as an adult when he fell into a depression and
was “looking for an excuse to be numb.” He claimed he had since,
13
on his own, stopped drinking alcohol. Victor also had used
methamphetamine and cocaine every day between the ages of 16
and 18 but stopped using drugs after he was arrested while in
possession of methamphetamine. In addition to his psychotropic
medications as part of his mental health services treatment,
Victor took multiple medications for other health problems,
including a back injury. His doctor used to prescribe him codeine
but stopped after he began abusing it.
Although the juvenile court on May 22, 2020 ordered the
Department to refer Victor for random drug testing, Victor failed
to appear for testing on three occasions: May 27, June 5, and
June 25, 2020. Victor on June 11, 2020 provided excuses for his
failure to test, such as misplacing the instructions, but a little
over a week later on June 19, 2020 claimed he had been showing
up for testing.
The Department filed a supplemental report on October 29,
2020, which described interactions between Victor and Irma
Orea, one of the Department’s caseworkers. In September 2020
Leticia, Daisy, Kristopher and Frank tested positive for COVID-
19. Victor refused to allow Leticia to pick up Kristopher and
Frank, and Orea informed Leticia she could request police
assistance because Victor was required to adhere to the court’s
visitation orders. Victor accused Orea of siding with Leticia,
refused to speak to Orea and requested a new caseworker.
On October 21, 2020 Orea spoke with Leticia’s therapist
and parenting instructor, who said Leticia, one of the most active
participants he had, was very receptive in her parenting classes
and therapy sessions, but Victor resisted and appeared not to do
his part. Although Leticia’s sense of self-worth had improved and
she had made advances in her ability to assert herself, she
14
continued to be manipulated by Victor. It was difficult for Leticia
to establish healthy boundaries with Victor because he made her
feel guilty. Victor tended to manipulate the children and
attempted to sabotage Leticia’s relationship with them.
Victor continued to fail to submit to random drug testing
despite the juvenile court’s order. For the period July 8, 2020 to
September 24, 2020, Victor had six “No Show[s].” When Orea
asked why he had not submitted to testing, Victor said he had car
trouble. When she offered him a bus pass, he declined on the
ground his back issues hindered his ability to take public
transportation. When she offered to transport him on test dates,
he failed to call her. When another caseworker contacted Victor,
he said he had received Orea’s calls but refused to call her back
because he was upset with Orea and wanted a new caseworker.
A last minute information report filed by the Department
on November 5, 2020 explained a team of five Department
caseworkers assigned to the case met and identified their
concerns that Victor’s mental health was affecting his ability to
function. Victor struggled when a few tasks were scheduled in
one day, such as the children logging in to school on time for
virtual education when other appointments (medical, therapy,
caseworker visit) were scheduled the same day. He was unable
to follow through when asked to complete tasks. He made
inappropriate jokes and was cynical and often impulsive in
making statements in the children’s presence. Victor continued
to make inappropriate comments to Victor, Jr., who was
experiencing his own mental health issues. Because of Victor’s
past drug abuse, the caseworkers were concerned about Victor’s
failure to submit to drug testing despite the court’s order. He
continued to maintain inappropriate boundaries with Leticia and
15
had become more resistant toward the Department. The
Department recommended an evaluation of Victor for mental
illnesses, psychotic disorders and personality disorders
preventing him from effectively engaging in treatment.
3. The Department’s Application To Detain the Children
On November 6, 2020 the Department applied for an order
to detain the children from Victor’s custody based on ongoing
concerns related to Victor’s emotional stability and his
relationship dynamics with Leticia and the children, as well as
Victor, Jr.’s mental health issues.7 As set forth in the application,
a caseworker on November 4, 2020 received a telephone call from
Isela Barales, a case manager from The Whole Child agency,
which had been providing Victor housing assistance and had
secured coverage of his housing costs for the past six months.
Barales had received a text message late at night from Victor,
falsely accusing her of having provided a letter to the
Department to remove the children from his custody and
threatening to expose her on the local television news. Barales
told Victor she had not sent any letter to the Department.
Barales told the caseworker she had received other disturbing
text messages from Victor accusing her of having contacted the
Department regarding its investigation of his case and Victor in
the past had been informed that the agency would be unable to
work with him if he continued to make threats or behave in a
7 The application, signed by two Department caseworkers
under penalty of perjury, was among the exhibits the juvenile
court admitted without objection at the December 18, 2020
jurisdiction/disposition hearing.
16
hostile manner. Barales suspected Victor was using drugs in
part because of his erratic behavior, and Victor’s prior agency
case manager had also suspected Victor’s drug use when working
with him.
The Department’s caseworker called Victor on November 6,
2020, informed him she had been told of his possible drug use,
and requested he submit to drug testing the following day, a
Saturday. Victor said he was unavailable because he was
celebrating Kristopher’s birthday. When informed of the site’s
hours, which the caseworker explained should provide sufficient
time to test, Victor replied he would be out of town. He
eventually agreed to test on Tuesday, November 10, 2020, after
stating he had a court hearing and a therapy session on Monday,
November 9.
Victor, Jr. in September 2020 had another mental health
crisis when he threatened again to jump off the balcony of
Victor’s hotel room. On September 17, 2020 Orea made an
unannounced visit to Victor’s home when she learned of the
crisis. Orea arrived at 9:00 a.m. and found the children still
asleep and not logged into school. Victor, displeased about the
unannounced visit, accused Orea of violating his rights. Victor
stated the children would not be attending school remotely that
day because he was waiting for another caseworker’s call
regarding transporting him and the children for a forensic
examination. Orea spoke to Victor about stating, “I don’t care if
you jump off the balcony” to Victor, Jr. during his crisis. Victor
said he made the statement “I don’t care if he jumps” to Leticia,
not directly to Victor, Jr., because he was frustrated with Leticia
and the Department. He denied wanting his son to jump off the
balcony. Victor, Jr. denied having suicidal thoughts.
17
The Department continued to be concerned about Victor’s
mental health. He appeared to provoke Victor, Jr. and endanger
the child’s mental health, the Department believed, due at least
in part to Victor’s own inability to manage his emotions. Since
the Department’s initial petition had been filed, the Department
had been unable to obtain any information regarding Victor’s
progress in his mental health services treatment. Victor’s
therapist had informed the Department Victor had refused to
consent to the disclosure of his diagnosis or his progress in
therapy.
At the November 9, 2020 hearing on the Department’s
application, with all parties’ (including Victor’s) counsel present,
the juvenile court ordered the children detained from Victor and
placed with Leticia. Victor was granted monitored visits with the
children.
4. The December 2020 Last Minute Information Reports
and the Restraining Orders
The Department’s last minute information report filed on
December 2, 2020 described a series of incidents that, at least in
part, led to the juvenile court’s granting a temporary restraining
order on November 12, 2020 to protect Orea from Victor. Among
those events, on November 9, 2020, shortly after the juvenile
court ordered the children’s detention, Victor’s mental health
therapist and a supervisor from the mental health clinic called
Orea, Orea’s supervisor Alexandra Encinas, and other
caseworkers to warn that Victor had threatened to harm all
social workers going to his home and informing the Department
that they would be filing a police report. Because of Victor’s
threat, two additional Department employees, tasked with
removing the children from Victor’s custody, went to Victor’s
18
home accompanied by law enforcement officers and found no one
home. Matthew Figueroa, one of the two employees, later met
Victor at a Department office parking lot. Victor came out of his
car, raising his voice and cursing at Figueroa for bringing a
security guard and another person. Victor’s three sons came out
of Victor’s car. Victor continued to curse at Figueroa in the
children’s presence.
Victor, Jr. said he was aware of the court order and
comfortable going with Leticia, who picked up her sons but
realized she did not have Victor, Jr.’s medication. Encinas met
Victor at a gas station mini-mart to retrieve it. Victor was
argumentative, and his aggressive body language intimidated
Encinas. While Victor, who refused to end the conversation,
argued for 30 minutes, a man pumping gas gestured toward
Encinas as if to ask if she was alright. Another group of people
appeared to intentionally walk between her and Victor to create
space between them. Encinas maintained her distance. The
meeting ended after a gas station employee asked Encinas, “Are
you ok?” and, assured with Encinas’s affirmative reply, requested
they leave. Victor told Encinas he was planning on turning off
his phone for the next few days and did not intend to submit to
drug testing the following day. He ignored Encinas’s
encouragement to follow the court’s orders, walked into the mini-
mart, purchased a pack of beer and carried the beer to his car.
Victor failed on November 10, 2020 and November 19, 2020 to
submit to drug testing. On December 3, 2020 the juvenile court
19
issued a permanent restraining order protecting Orea for a period
of three years from Victor.8
The Department’s last minute information report filed on
December 16, 2020 described Victor’s December 15, 2020
monitored visit with the children at a park. Prior to Victor’s
arrival, the caseworker reminded Victor of the court-ordered
requirement that he not discuss the case with the children or
make disparaging comments about Leticia. Victor came, greeted
his sons and ignored Daisy’s effort to greet him. Victor, Jr. told
his father that one of his pet guinea pigs had died. Victor became
hysterical and began shouting, “[A]nd your mother didn’t do
anything to help did she?” When Victor, Jr. defended his mother,
explaining Leticia had tried to help and they had visited three
different veterinarians, Victor insisted the guinea pig’s death was
Leticia’s fault because it had died of stress caused by the
children’s removal from Victor’s care.
Victor was on the phone for 20 minutes during the hour-
long visit. He audibly complained about the case on the phone.
He ignored the caseworker’s warnings to end his disruptive
behavior. While Victor was on the phone, Daisy, uncomfortable
with Victor’s dismissive behavior toward her, stayed close to the
caseworker. After ending his phone conversation, Victor,
appearing angry, headed toward the caseworker, who asked
Victor to keep his distance. Victor demanded, “[W]hy are you
coming at me like that?” When asked by the caseworker why he
thought the caseworker was “coming at” him, Victor referred to
the caseworker’s staring at him while he was on the phone. The
8 At the jurisdiction/disposition hearing, the juvenile court
took judicial notice of all of its prior findings and orders in the
case.
20
caseworker explained the inappropriateness of phone calls during
visitation. Victor complained about Orea, Encinas and his own
attorney and insisted no restraining order existed. When the
caseworker reminded him the court had read the details of the
restraining order at a hearing, Victor said, “[Y]ou can tell the
judge she can kiss my ass!” “[A]ll those attorneys are lucky I
didn’t lash out at them because I’ll let them have it.” 9 After the
caseworker suggested they speak about case matters at another
time, Victor continued to focus on his phone. After the
caseworker suggested Victor spend the rest of the visitation time
with his children, Victor stated, “I’m done with my time.”
When the caseworker asked Victor why he had not
acknowledged or spoken to Daisy throughout the visit, Victor
stated they “ha[d] issues.” The caseworker explained that Daisy
had been reluctant to come and built up her courage to do so.
Victor became upset and began shouting to Daisy to approach
him. As she did, Victor started yelling, accusing the child of
making false statements about him. Daisy, agitated, shouted
back that she had done nothing wrong. Victor continued to shout
at Daisy until the caseworker asked him to stop. The caseworker
instructed Daisy, who was highly emotional and upset, to wait by
a tree in the distance for the caseworker and the rest of the
9 In complaining to the caseworker during the December 15,
2020 visit, Victor also claimed Victor, Jr. had failed to log in to
school since being placed with Leticia and, as supposed proof,
gave the caseworker a document from the school district listing
19 dates in the two-month period from September 3 to
November 9. The caseworker reminded Victor the dates
corresponded to the times the child was in his care. In fact, the
record shows Leticia had to go to Victor’s home to ensure the
children logged into school while in his care.
21
children to end the visit. Following this incident Daisy did not
want to continue visiting with Victor.
5. The Jurisdiction and Disposition Hearing
At the jurisdiction and disposition hearing on December 18,
2020, after hearing the arguments of counsel, the juvenile court
sustained the amended petition, finding the Department had
carried its burden as to the amended petition’s allegations of
jurisdiction under section 300, subdivisions (b)(1), (c) and (j).
As for disposition, the court removed the children from
Victor’s custody, placed them with Leticia and ordered family
maintenance services. The court ordered Victor to participate in
enhancement services that included a full drug and alcohol
program with aftercare, random weekly drug or alcohol testing, a
12-step program, parenting classes, individual counseling and
mental health counseling, with requirements to submit to a
psychiatric evaluation and take prescribed psychotropic
medications. Observing Victor’s failure to show up for any drug
or alcohol testing, the court stated it considered the missed tests
to be positive.
The court ordered Victor’s visitation with Daisy suspended
“unless and until the therapist provides information to this court
to indicate that it is appropriate.” Visitation with his three sons
was to be monitored for nine hours per week.
DISCUSSION
1. Substantial Evidence Supports the Juvenile Court’s
Jurisdiction Findings
a. Standard of review
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
22
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.) 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. (In re I.J., at p. 773; accord, In re I.C., at
p. 892.)
b. Subdivisions (b) and (j) jurisdiction
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 (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
23
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 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. (2017) 3 Cal.5th 622, 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”].)
Section 300, subdivision (j), authorizes dependency
jurisdiction when “[t]he child’s sibling has been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (i), and
there is a substantial risk that the child will be abused or
neglected, as defined in those subdivisions.” In considering the
applicability of subdivision (j), the Legislature directed the
juvenile court to “consider the circumstances surrounding the
abuse or neglect of the sibling, the age and gender of each child,
the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the
court considers probative in determining whether there is a
substantial risk to the child.” (§ 300, subd. (j).) “‘The broad
language of subdivision (j) clearly indicates that the trial court is
to consider the totality of the circumstances of the child and his
or her sibling in determining whether the child is at substantial
risk of harm, within the meaning of any of the [enumerated]
subdivisions. . . . The provision thus accords the trial court
greater latitude to exercise jurisdiction as to a child whose sibling
24
has been found to have been abused than the court would have in
the absence of that circumstance.’” (In re I.J., supra, 56 Cal.4th
at p. 774.)
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 juvenile 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 must evaluate the future risks facing a child
and may consider past events in deciding whether a child
currently 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 re Kadence P., at p. 1384.)
Substantial evidence supports the juvenile court’s
jurisdiction findings for Victor, Jr. under section 300,
subdivision (b)(1), and for Daisy, Kristopher and Frank under
section 300, subdivisions (b)(1) and (j). Victor had a limited
ability to provide Victor, Jr. with ongoing care and supervision
due to the child’s mental and emotional problems, and that
limited ability endangered Victor, Jr.’s physical health and safety
and placed the child’s three siblings at risk of serious physical
harm.
Victor, Jr. was diagnosed with depression and anxiety;
required therapy and medication for his depression; had a history
of suicidal ideations; had taken steps to act on those thoughts of
25
suicide, including grabbing a knife in one instance and, in
another, stepping out of the hotel room to peer over the balcony
after he had declared his desire to jump; and had been
hospitalized for suicidal thoughts less than a year before the
December 2020 jurisdiction and disposition hearing. He had
been diagnosed with depression after his parents’ divorce. His
parents’ conflict had caused him to feel emotionally overwhelmed,
and he admitted having suicidal thoughts if he had a significant
argument with his father. According to Victor, Jr.’s therapist,
when the child has explosive arguments, “thoughts might come
in.”
For his part, Victor was diagnosed with anxiety and
depression, received mental health services requiring medication,
had a history of substance abuse and, more recently, failed to
submit to any of multiple court-ordered random drug or alcohol
testing. There was ample evidence that Victor had an impaired
capacity to appropriately manage his emotions and temper his
behavior, which limited his ability to provide the ongoing care
and supervision required in light of Victor, Jr.’s mental and
emotional needs. As we summarized, the record is replete with
evidence of Victor’s inability to control or otherwise modulate his
emotional responses in an appropriate fashion as necessary to
protect Victor, Jr. from an emotional state leading to suicidal
thoughts.
The record also demonstrated that Victor lacked insight
regarding the effect on his children of his ongoing rancorous
verbal altercations with Leticia in the children’s presence, even
though such conflict emotionally destabilized Victor, Jr. Even
Frank, at the time only four years old, told the Department his
father hated his mother. Victor continued to speak on the
26
telephone to Leticia within earshot of Victor, Jr. after the child’s
therapist Richardson had recommended the parents
communicate in a manner that minimized the effect of their
conflict. As recently as three days before the jurisdiction and
disposition hearing, during the December 15, 2020 monitored
visit, Victor, informed that one of Victor, Jr.’s emotional support
pets had died, became hysterical. In violation of an existing court
order not to disparage Leticia and despite the child’s fragile
mental and emotional health, Victor, shouting at Victor, Jr.,
blamed the child’s mother for the pet’s death.
Victor points to evidence, with respect to the April 9, 2020
referral incident, minimizing his responsibility for Victor, Jr.’s
suicidal thoughts that day, including Victor, Jr.’s explanation the
suicidal ideation arose from becoming stressed at Victor’s lack of
trust and disappointment in the child for failure to check in for
school. However, Victor admitted he had been upset at the time
that it was Leticia who had been notified of their son’s failure to
check in online for school. Although Victor may not have been
physically aggressive with, or verbally abusive to, his son, the
juvenile court could nevertheless have reasonably inferred that
Victor had expressed his anger about Leticia when confronting
his son, contributing to the child’s distraught emotional state and
suicidal ideations.
Victor argues he was able to provide ongoing care and
supervision by referring to (among other matters) evidence
indicating he ensured Victor, Jr. received weekly therapy and
medication, linked his son with therapeutic and tutoring
resources, supported his son’s animation interests, encouraged
his son to be appropriately social and bought his son’s emotional
support animal. This evidence, however, does not disprove that
27
Victor had an impaired capacity to appropriately manage his
emotional responses and moderate his behavior. Nor does it
disprove that Victor was unable to provide the care and
supervision required in light of Victor, Jr.’s mental and emotional
needs by providing an environment of sufficient stability to
prevent serious physical harm. In any event, Victor’s argument
essentially invites us to reweigh the evidence, a task outside the
proper scope of appellate review. (See, e.g., In re I.J., supra,
56 Cal.4th at p. 773 [“‘“[w]e do not reweigh the evidence”’”]; In re
S.R. (2020) 48 Cal.App.5th 204, 219 [same].)
As for Daisy, Kristopher and Frank, Victor contends
insufficient evidence supported the jurisdiction findings as to
them because they are not similarly situated to Victor, Jr.
Specifically, Victor contends Victor, Jr. was autistic 10 and
diagnosed with depression and anxiety and lived primarily with
Victor, while his siblings lived primarily with Leticia. In
addition, he argues, Kristopher denied ever witnessing the
parents fighting or arguing; Daisy never observed the parents
physically fighting (as opposed to verbally arguing); and Daisy
said she and Victor, Jr. would just be annoyed when the parents
argued.
Nothing in the record, including interviews with
Victor, Jr.’s therapists, indicates Victor, Jr.’s suicidal ideation
was attributable to his autism. To the contrary, as discussed,
Victor, Jr. had been diagnosed with depression only after the
parents’ divorce; and Victor, Jr.’s therapist Richardson said the
child was emotionally overwhelmed by the conflict between the
10 Victor ignores that he had previously described Kristopher
and Frank, and had been working to have Kristopher diagnosed,
as autistic.
28
parents. There was substantial evidence it was Victor’s extreme
animosity toward Leticia and his impaired ability to manage his
emotional responses and regulate his behavior that fueled the
acrimonious nature of the parental confrontations, which in turn
threw Victor, Jr. into emotional turmoil.
Victor’s impaired capacity to moderate his emotional
responses and behavior rendered him unable to adequately
protect, and created a substantial risk of serious physical harm
to, not only Victor, Jr. but also his three younger siblings. All
four children had observed and been upset by the parents’
repeated verbal arguments. Daisy was diagnosed with
depression and saw a therapist once a week. Although she never
witnessed her parents hit or push each other, she heard them
arguing, which she said was most of the time they talked to each
other. Daisy’s statement she would just get annoyed when their
parents fought was contradicted by other evidence—for example,
Daisy’s statement she wanted to “get my mental health good and
trust him [Victor] again” before she would feel comfortable
visiting him. Daisy’s troubled relationship with Victor was due to
a history of concerning incidents that included the occasion when
he showed Daisy and the two younger boys a gun, stating his
intent to kill the maternal family with it and saying Daisy had to
choose who to kill.11
11 In September 2019 the Department had become aware of
the allegation that Victor, in the presence of the three youngest
children, had shown Daisy a gun and told her he would use it to
kill her mother’s family, including her mother. The Department’s
disposition of the claim at that time was that it was
“inconclusive.” Victor asserted the allegation of his threatening
people with a gun was false. On June 25, 2020 Daisy provided
the caseworker with her account of Victor’s threat to kill the
29
Although Kristopher had initially denied ever witnessing
the parents fighting or arguing, he later affirmed having seen
them fight. Both Kristopher and Frank became scared and hid
when the parents argued and said they were afraid of their
father. They were seeing a therapist and working on processing
their emotions.
Victor’s argument Victor, Jr.’s siblings were not currently
(at the time of the jurisdiction hearing) at risk of harm because
they lived primarily with their mother is misplaced. The three
younger children had continuing contact with their father. Most
recently, during Victor’s December 15, 2020 visit Victor had
yelled at Daisy and caused her to become highly emotional and
upset. Moreover, Victor ignores that Kristopher and Frank’s
then-current living situation was the result of the juvenile court’s
order detaining the children from their father’s custody;
Kristopher and Frank had previously been exchanged weekly
under a 50/50 family law custody order. In sum, Victor fails to
establish insufficient evidence supported the finding the children
were still subject to a substantial risk of harm at the time of the
jurisdiction hearing.12
maternal family, including telling the caseworker Victor had also
told Daisy she had to choose who to kill. At the jurisdiction
hearing, counsel for Daisy, Kristopher and Frank raised, without
objection, Victor’s threat to kill the maternal family. The juvenile
court found the minors’ counsel’s arguments persuasive. Issues
of credibility belong squarely with the juvenile court. (In re I.J.,
supra, 56 Cal.4th at p. 773.)
12 Because substantial evidence supports the jurisdiction
finding as to Victor, Jr. under section 300, subdivision (b)(1), we
decline to address Victor’s argument there was insufficient
evidence to support the jurisdiction finding as to the child under
30
2. Victor’s Challenge to the Disposition Orders Is Moot
“‘[T]he critical factor in considering whether a dependency
appeal is moot is whether the appellate court can provide any
effective relief if it finds reversible error.’” (In re Rashad D.,
supra, 63 Cal.App.5th at p. 163; accord, In re D.N. (2020)
56 Cal.App.5th 741, 757 [“‘[a]n appeal may become moot where
subsequent events, including orders by the juvenile court, render
it impossible for the reviewing court to grant effective relief’”];
see In re J.P. (2017) 14 Cal.App.5th 616, 623; In re N.S. (2016)
245 Cal.App.4th 53, 60.) Because the juvenile court has now
terminated its jurisdiction and entered a custody order pursuant
to section 362.4, we can provide Victor no effective relief from the
challenged disposition orders. (See In re S.P. (2020)
53 Cal.App.5th 13, 16 [“[c]ourts do not decide issues that can
provide no effective relief for the parties”].)
The removal orders made at the disposition hearing,
necessarily temporary in nature, have been superseded by the
custody order entered by the juvenile court on June 28, 2021,
modifying the family law court’s joint custody order by granting
sole legal and physical custody of the children to Leticia.
Similarly, the visitation orders made earlier in the proceedings
have been replaced by the order for monitored visitation included
with the termination and custody orders. Victor has an
section 300, subdivision (c). (In re I.J., supra, 56 Cal.4th at p. 773
[“‘[w]hen a dependency petition alleges multiple grounds for its
assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence’”].)
31
opportunity to challenge those matters in his appeal from the
custody order, which remains pending in this court. The other
aspects of the disposition order, including the requirement that
Victor drug test and participate in programs and services, were
terminated when the juvenile court terminated its jurisdiction.
DISPOSITION
The juvenile court’s jurisdiction findings are affirmed. The
appeal from the disposition order is dismissed as moot.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
32