In re Emily L. ( 2021 )

Filed 11/29/21 Certified for Publication 12/21/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re EMILY L., a Person Coming B309567
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP07079A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
HELEN F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee.
Reversed and remanded with directions.
Lelah S. Fisher, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephanie Jo Reagan, Principal
Deputy County Counsel for Plaintiff and Respondent.
____________________________________
The Department of Children and Family Services (DCFS)
alleged, and the juvenile court found true, three allegations that
Helen F. (Mother) had physically abused, failed to protect, and
medically neglected her daughter Emily L. within the meaning of
Welfare and Institutions Code1 section 300, subdivision (b). The
court ordered Mother to participate in six months of services
under the informal supervision of DCFS pursuant to section 360,
subdivision (b). During the period of informal supervision, DCFS
neither filed a petition on Emily’s behalf nor brought the matter
back to court for any reason. While this appeal was pending,
Emily turned 18 and is no longer subject to the jurisdiction of the
juvenile court.
Mother appeals from the jurisdictional and dispositional
order, challenging the sufficiency of the evidence to support the
juvenile court’s jurisdictional findings. DCFS requests that the
appeal be dismissed as moot. Mother opposes dismissal. We
conclude that although the appeal is moot as to Emily, we will
exercise our discretion to address the merits. We reverse the
order of the juvenile court asserting jurisdiction, vacate the
court’s factual findings, and direct the juvenile court upon
remand to dismiss the petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Allegations of the Petition
On October 31, 2019, DCFS filed a petition on behalf of 16-
year-old Emily L. and 7-year-old Andrew F. Count a-1, entitled
Serious Physical Harm, alleged that Mother Helen F “physically
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2
abused the child Emily by grabbing the child’s neck, choking the
child, causing the child to cough, gag, and have difficulty
breathing. The mother pushed the child and forcibly grabbed the
child’s wrists. The mother pulled the child’s hair. The child
sustained a bump to the child’s forehead and a scratch to the
child’s neck. On a prior occasion, the mother slapped the child’s
face.” The petition alleged Father failed to protect the child from
Mother’s physical abuse. This count further alleged Mother’s
physical abuse and Father’s failure to protect placed Emily and
Andrew at risk of serious physical harm, damage, and danger.
Count b-1, entitled Failure to Protect, repeated the
allegations of Count a-1 word for word. Paragraph b-2 added
that both parents were “unable to provide [Emily] with
appropriate parental care and supervision, due to the child’s
special and unique behavioral problems, including dangerous,
aggressive and assaultive behavior. The child’s special and
unique behavioral problems and the mother and . . . father’s
inability to provide the child Emily with appropriate care and
supervision endangers the child Emily’s physical health and
safety and places the child and the child’s sibling Andrew, at risk
of serious physical harm, damage and danger.”
Paragraph b-3 alleged both parents “medically neglected
the child Emily, in that the mother and the . . . father knew of the
child’s marijuana abuse, and the mother and father failed to
obtain services to address the child’s substance abuse. Such
medical neglect of the child Emily by the mother and the . . .
father, endangers the child’s physical health and safety, creates a
detrimental home environment and places the child and the
child’s sibling Andrew, at risk of serious physical harm, damage,
danger and medical neglect.”
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Finally Count j-1, j-2, and j-3, entitled Abuse of Sibling,
alleged that Mother’s physical abuse of Emily and both parents’
medical neglect of and failure to protect and supervise Emily
placed Andrew at risk of serious physical harm, danger, damage,
and medical neglect as well.
B. The Initial Investigation
This family came to the attention of DCFS on October 15,
2019, the day after Mother called 911 asking for police assistance
after she and Emily got into a physical altercation. When
interviewed later, Mother stated she had found and destroyed
Polaroid photos of Emily which Mother deemed inappropriate;
Emily responded by telling Mother she wanted to live with
Father. The argument escalated into a physical altercation.
Emily said Mother pulled on her earring; the child’s left ear lobe
was red with a small amount of blood and her forehead was red
as well. Emily also complained of pain to her right forehead.
Mother had a 2-inch bruise on her right bicep and a one-quarter
inch laceration to her left thumb. Emily was briefly detained and
then released to her home, where the maternal grandmother also
lived.
The initial DCFS investigation included interviews with
Mother, Father, Emily, Emily’s siblings Stephanie2 and Andrew,
the maternal grandmother, and Emily’s school counselor. On
October 16, 2019, a DCFS social worker made an unannounced
visit to Emily’s school where, to no avail, she waited 25 minutes
for Emily to arrive. Emily’s counselor said Emily had a history of
2 Stephanie lives in the home with Mother, Emily, and
Andrew. She is an adult and was not subject to dependency
proceedings.
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skipping class and was not doing well academically. She said the
parents were involved and were trying to work with Emily to
better her grades. The parents had taken away Emily’s cell
phone. According to the counselor, Emily was behind in school
credits, defied the dress code by wearing shirts with her breasts
“spilling out,” and did not want a relationship with her father.
The counselor reported she believed Emily was upset about her
parents’ separation. The situation had not improved and was
worsening. Emily displayed “an attitude” towards school staff
and her parents. The counselor noted she had not seen Emily
with any marks or bruises and had no child safety concerns.
Two days later, the social worker made an unannounced
visit to the school to interview Emily, who reported that she and
her mother get into “really bad arguments” because Mother gets
upset when Emily hangs out after school with friends and comes
home late around 9:00 p.m. When Emily is out late, Mother calls
her and Emily does not answer the phone, which further upsets
Mother.
Emily confirmed that she and Mother had a recent physical
altercation. It started when Emily came home and discovered
Mother had ripped up some of her Polaroid photographs because
she found them inappropriate. Emily believed Mother was upset
because the photos showed Emily in a bikini. They began to
argue and curse at each other, and then Emily pushed Mother
and Mother pushed Emily back. Emily then pushed Mother
down to the floor where they were both pulling each other’s hair.
Emily remembered punching Mother and being choked at a
certain point by Mother. Mother removed her hands from
Emily’s throat when Emily began to gag and cough. Emily felt
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like she was running out of breath; Mother called law
enforcement because of what happened.
Emily reported that when she gets angry, she cannot
control herself. When the police arrived, they cuffed her, patted
her down, and gave her “life lessons.” The police gave Emily a
choice of staying at home or being arrested. She chose home.
Later, Mother gave Emily three options: she could live with her
father, stay at home with her, or go find somewhere else to live.
Emily chose again to remain at home, but Mother took away her
house key because she was still coming home late. Mother later
returned the key because the maternal grandmother was going to
be away in the afternoon and would be unable to let Emily into
the house. Emily stated she did not want to live with her father
because she wanted to continue to attend her current high school
and she knew her father, who lived some distance away, did not
want to wake up earlier than usual to attend to her.
Emily reported that both parents have addressed her low
grades and tried to help her catch up with her credits. Her
counselor recommended she attend continuation school, which
she did not want to attend. She communicated better with her
father. She believed she was too far behind in credits to catch up
and that it would take too much work on her part to even try to
catch up. She acknowledged hanging out with “bad friends” who
were not a good influence on her, with her best friend being the
“main bad influence.” She smoked marijuana with these “bad
friends.” Her parents had discovered she smoked marijuana and
Mother began to search her backpack and look through her
things, which Emily did not like. She stopped smoking
marijuana when her best friend left the school two weeks ago.
She credited her boyfriend with being a good influence. Emily
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told the social worker she would like to do better in school but
knew she had made “wrong choices.”
Emily acknowledged that her parents split up when she
was seven years old, but it still affected her. She missed the
“good memories” of when they all used to live together. She saw
her father three days a week and felt bad for Mother because she
is a single mother with three children. Emily reported her
younger brother Andrew was homeschooled because he had been
diagnosed with kidney cancer and was undergoing strong
chemotherapy treatment. The maternal grandmother stays with
him during the day while Mother works. When asked if the
situation with Andrew had affected her life, Emily teared up and
said it was difficult to see Andrew in that situation. She did not
respond when asked if Andrew’s illness was the reason for her
current behavior. The social worker asked Emily if she would
like to try some therapy to talk about the situation, and Emily
said yes.
On October 21, 2019, now one week after the physical
altercation between Mother and Emily, the social worker visited
Mother at home. Mother said Emily’s behavior was
“uncontrollable.” Emily has a “strong character” and does not
want to follow any of the house rules or hear any type of
redirection or advice from her parents. She came home from
school around 8:00 or 9:00 p.m. When Mother would call to find
out where she was, Emily did not answer the phone calls or
turned off her phone, which worried Mother. Emily was
currently failing her classes. Both parents were trying to
motivate and help Emily with school. Both parents had tried to
discipline her by taking way her phone and WiFi privileges.
Mother suggested they do things together in an effort to build a
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better bond, but Emily refused. Emily appeared to Mother to
prefer spending time with her friends than with her family.
Mother described the start of the altercation. She found
photos of Emily posed in a bikini lying down on a bed. She
believed Emily’s boyfriend took the photos. Mother ripped them
up so they could not be used to bully Emily. When Mother told
Emily she had destroyed the photos, Emily began throwing
things around the bedroom they were in. She then began to
advance toward Mother. Laughing, Emily started to rip up
photos of her younger self. These included photos of Emily with
her best friend, which Mother knew had sentimental value to
Emily because her best friend had just moved away. Emily tried
to hit Mother, who grabbed Emily’s wrist to keep from being hit.
Emily grabbed the bunk bed ladder and began to push it in
Mother’s direction. Mother had never seen Emily like this and
was scared by her behavior. Emily pushed Mother, Mother
pushed back, and Emily punched her. Mother tried to hold
Emily’s wrists to stop the punching. Emily kicked Mother in the
stomach and they grabbed each other’s hair. They fell to the
floor; Emily climbed on top of Mother and began to hit her with a
closed fist. Mother still had Emily by the hair. They stopped
fighting and Emily went into the living room where she began
kicking a glass table. She overturned the living room loveseat.
Mother decided to call 911 because she did not know what
else to do. Emily moved to the kitchen and began kicking the
refrigerator and opening cabinets, throwing everything to the
floor. Emily then charged Mother and began kicking her torso.
At that point, they grabbed each other by the hair and fell to the
floor again. Emily again began punching Mother with a closed
fist. Mother flipped over and choked Emily with one hand to get
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her to stop. Emily began to cough and Mother let go and was
able to get up off the floor. The police arrived and ultimately let
Emily stay in the home. No incident like that has happened
since. Mother reported that during the altercation, Emily
laughingly said she hoped social services would arrive and take
her little brother away. This comment hurt Mother deeply.
Mother reported Emily had previously become aggressive.
In the prior month, Emily charged Mother when Mother said she
intended to take away her earphones because Emily had stolen
money from Stephanie. Stephanie called 911 and by the time
police arrived, Emily had calmed down. Mother had been able to
keep Emily at a safe distance by extending her arm to keep her
away. Mother wanted Stephanie to move Andrew out of the
house so he would not witness Emily’s behavior.
Two weeks earlier than the most recent incident, Emily
told Mother she was “going to kill this bitch” when Mother woke
her up for school. Mother slapped Emily in the mouth for her
language and Emily charged at her, dropped her on the bed, and
got on top of her. Mother raised her arms to protect herself.
Andrew and Stephanie witnessed the incident. Stephanie
removed Andrew from the room, returned, and she and maternal
grandmother grabbed Emily by the arms and restrained her from
hurting Mother.
Mother advised she believed Emily was still affected by her
parents’ separation, even though the parents have a good
relationship with each other and Father sees Emily regularly.
Recently, Father told Mother that Emily had charged at him. He
was able to fend her off and control her. Emily had refused to
visit her father since that day, although Mother encouraged
Emily to visit him.
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Mother reported that six months ago, in March 2019,
Andrew was diagnosed with a cancerous tumor on his kidney. He
underwent surgery and chemotherapy and has been
homeschooled ever since. Emily has declined to speak with
Mother about her feelings surrounding Andrew’s illness and his
frequent hospitalizations.
On the same day of Mother’s interview, Andrew was
interviewed. He corroborated that Mother and Emily got into
verbal altercations. He reported Emily “gets super mad” at being
disciplined and she does not go to school, stays out with her
friends, and comes home late after dark. Once he saw Emily get
on top of his mother, which scared him because he thought Emily
was hurting his mother.
Maternal grandmother was next interviewed. She
confirmed Emily and Mother argued because Emily does not like
to follow rules or have anyone telling her what to do. She
confirmed when Mother called Emily, Emily would not answer
the phone. She reported there was a physical incident between
Mother and Emily when Emily charged at Mother. Father was
involved with Emily, but stopped giving her gifts when she began
her rebellious behavior. He cut off the internet and both parents
have taken her phone away. Grandmother said Emily is violent
towards both parents and has no respect for them.
Stephanie confirmed that Emily and Mother had physical
and verbal altercations and she and the maternal grandmother
once had to grab Emily and pull her off Mother. Stephanie did
not want her brother witnessing that kind of behavior. Stephanie
also confirmed Emily had not seen their father since he took her
phone away and she responded by throwing things around his
house. Stephanie also confirmed Emily had stolen money from
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her by using Stephanie’s debit card without her permission. She
was frustrated because she had to lock up her debit card to keep
Emily from misusing it. She confirmed Emily had stolen from
their mother as well. Stephanie had offered to “hang out” with
Emily who declined, preferring to be with her own friends.
On October 22, 2019, the social worker interviewed Father
who said Emily is violent towards both parents. He blamed her
bad behavior on hanging out with the wrong crowd. He had tried
to advise Emily to change her behavior but she did not listen to
him. Father stopped giving Emily money when he learned she
smoked marijuana; he did not want her buying drugs. After a
physical incident with Mother about a month ago, Father told his
daughter to respect Mother. Emily told him “You’re always
telling me the same shit.” Father asked Emily to apologize to
him for being disrespectful. She got upset and began talking
back, so he took away her phone. She responded by grabbing his
tablet and dropping it to the floor. He responded by throwing her
phone at the wall. She began throwing things around his home.
She charged at Father and began hitting him on the head with a
cast that was on her arm at the time. He grabbed her by the
wrists and told her to go home to her mother. Emily has not
visited or spoken to him since.
After interviewing father, the social worker met with
Mother, Father, and Emily together in the dining area of
Mother’s home. The social worker told Mother it was wrong to
choke Emily and she would be submitting a request for a warrant
which meant there was a possibility that the children would be
removed from her custody. Mother began to cry and stated
Andrew needed her help because he was just getting through his
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cancer. Both parents asked the social worker to speak with
Emily.
The social worker met privately with Emily who asked
when they would be removed. Emily said she was concerned
about Andrew because he would suffer without his mother’s help.
The social worker advised Emily to try to seek common ground
with Mother and recommended that Emily seek therapy. Emily
said she understood. Two nights later, Emily did not return
home and Mother called the social worker to ask what she should
do. The social worker advised Mother to check with the school
and file a missing person’s report with the police.
Emily returned home the following morning. Both parents
were worried about where she had been. The social worker
advised them to file a missing person’s report if it happened
again.
DCFS included all this information in its detention report
and recommended that both children be detained because
“mother and [Emily] have unresolved issues which endangers the
physical and emotional wellbeing of the children such that the
children are at risk of suffering emotional or physical harm.”
DCFS concluded Mother had an inability to control Emily’s
behavior in the home.
DCFS aptly summarized the situation:
“Mother and child Emily have a history of getting into
three physical altercations in the past year in the presence of the
child Andrew or while he has been in the home. Most recently,
on or about March 14, 2019, they were involved in a physical
altercation that Emily initiated, but also included mother
resorting to choking Emily. Mother said she choked Emily with
the intention of having Emily run out of breath to stop Emily
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from grabbing and kicking mother. In the past, Emily also has
stolen money from her adult sibling’s debit card. Also, a month
or so ago, when father attempted to speak with Emily about her
disrespectful behavior and they argued, Emily charged at father
and began hitting him on the head with a cast that was on her
arm. Emily has been exhibiting increasingly volatile and
aggressive behavior since about the eighth grade. She has been
ditching class, not completing school work, and smoking
marijuana. She stayed out late and sometimes does not return
home until the next day. Mother and father have tried multiple
interventions, including taking away her cell phone privileges
and not purchasing unnecessary items for her, but she has
continued to exhibit the same if not increasingly more serious
behavior.”
C. Detention Hearing and Subsequent Events
The physical altercation between Emily and Mother
occurred on October 14, 2019. On October 28, 2019, DCFS
obtained orders to remove Emily and Andrew from the home.
Emily was placed with Father and Andrew remained at home
with his maternal grandmother and older sibling Stephanie.
Mother moved out. At the detention hearing on November 1,
2019, the court ordered Emily detained from Mother and released
to the home of Father. Andrew was released to home of Mother
on the condition that Mother reside with relatives.
For various reasons including the pandemic, the
jurisdictional and disposition hearing did not occur until 13
months after the initial altercation. Before the hearing finally
took place on December 1, 2020, several events occurred. The
juvenile court ordered services for the parents and Emily. On
December 19, 2019, Andrew underwent surgery to remove a
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cancerous tumor from his testicle. He entered a fourth round of
chemotherapy and was scheduled for a bone marrow transplant
at Children’s Hospital. The doctors advised Mother that
Andrew’s prognosis was poor. Mother continued to work 35 hours
a week to remain eligible for health insurance for the family. She
worked six days a week and then spent the nights with Andrew
at the hospital. She did not enroll in services for herself because
she was going to and from work, the hospital, and Andrew’s
medical appointments.
At an interim hearing on December 27, 2019, the court
ordered unmonitored visitation between Emily and Mother at the
hospital only, as Andrew had been admitted for treatment. On
December 29, 2019, Father filed a missing person’s report
because Emily had not returned home the previous night. He
reported Emily continued to leave home without permission and
skip school. Emily was transferred to a continuation school
where, as of January 31, 2020, she had 50 out of 210 credits
needed for graduation. Her GPA was 1.0. Emily was visiting her
mother, grandmother, and siblings at Mother’s home with an
adult family member always present.
By March 2020, wraparound services for Emily had still not
been initiated. Andrew’s condition had worsened. On March 3,
2020, the court referred the family for wraparound services. The
court also permitted unmonitored visits between Mother and
Emily and one overnight visit per week. The court gave DCFS
discretion to permit Emily to move back home with her mother.
The parties advised the court that they were exploring informal
supervision. Mother was still going between work and hospital
and Andrew’s medical visits. She was fully engaged in Andrew’s
treatment. Father reported he was still having problems with
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Emily, who continued to leave the house without permission and
arrive two hours late for school. He restricted her cell phone use,
including turning off her data services. Although Emily and
Mother were authorized to have unmonitored overnight visits,
none had occurred because Mother spent her nights at the
hospital with Andrew. Father and Emily visited Mother and
Andrew twice a week at the hospital and then at home.
In May 2020, Emily started receiving virtual wraparound
services.
On June 19, 2020, Andrew died.
After Andrew’s death, DCFS allowed Emily to go on an
extended visit with her mother, which lasted until September 7,
2020. Mother started grief counseling and tried to get Emily into
grief counseling as well. However, Emily was subject to a three-
month wait after the death of her brother before she was eligible
for counseling.
In September 2020, DCFS noted that Emily and Mother
were not making themselves available for services. However,
Emily’s behavior had markedly improved – so much so that she
was no longer eligible for wraparound services. Nor was she
eligible for individual counseling services because she had private
insurance through her parents. Emily returned to her father’s
home on September 10, 2020. Her father reported she was doing
well at home and during her visits with Mother. Father was
frustrated that Emily was no longer eligible for wraparound
services.
As of October 2020, almost a year after the initial
altercation, Emily had garnered 132.5 credits of the 210 needed
for graduation. According to DCFS, about this time both Mother
and Father became “unavailable” in that they stopped returning
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DCFS’s calls and, when contacted, they each questioned the
ongoing need for DCFS involvement. At an unannounced home
visit in October, Father reported to the social worker that Emily’s
behavior had changed “drastically” in that she was logging into
virtual school sessions regularly, turning in assignments, and
respecting his house rules. She wanted to learn to drive and to
start working. In November 2020, she was scheduled to begin
private counseling, which Father had arranged with Kaiser.
In November 2020 DCFS advised the court that Mother
and Father were uncooperative, resulting in DCFS’s inability to
assess Mother’s emotional state following the death of her son
and her commitment to address the concerns that brought the
family to its attention. DCFS recommended that the court
declare Emily a dependent of the court and order services for
Mother and Father.
D. Jurisdiction and Disposition
On December 1, 2020, the court held the jurisdictional and
disposition hearing. Mother, Father and Emily asked the court
to dismiss the petition because circumstances with the family had
markedly improved. DCFS opposed dismissal because Mother
and Father had not been cooperative in the last few months,
preventing DCFS from assessing whether Mother had learned
anything that would prevent the physical violence from
happening again. According to the minute order after the
hearing, the court interlineated the petition, dismissing Father
from the petition The minute order states that the court then
sustained all remaining allegations against Mother as to Emily.
However, according to the reporter’s transcript of the
hearing, the court did not sustain all allegations. It stated: “I am
going to sustain b1, but I am striking the Father from the
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allegations. B2, I am going to strike Father from the petition.
And b3, and I am going to strike Father from the petition.” When
counsel asked if the court was sustaining b3, the court reiterated:
“Yes. I am sustaining b1, b2 and I am striking Father from the
petition. And I am going to order [section] 360b in this case. The
only reason I am not dismissing it is because of the Mother’s lack
of cooperation with the Department and I want to, even though
the child turns 18 in four months, I think it is important for the
Mother to avail herself of any of the services she can and beyond
that she didn’t demonstrate to the court while she had the
opportunity. [¶] Parenting classes for the Mother are going to be
ordered pursuant to [section] 360b, individual counseling,
conjoint counseling with minor. [¶] And then for the child, Wrap
T.B.S., F.S.P., conjoint counseling with parents if recommended
by therapist. And I hope she takes advantage and does
participate in those services. [¶] With regard to Father, he has
really done—I’m going to strike parenting from his program. I
think that he has demonstrated that the child is safe in his home.
And I will note the Department’s objection and I will note all of
counsels’ objections that the petition wasn’t dismissed.” The
court did not refer to Count a in any way.
Mother timely appealed.
DISCUSSION
A. Although the Minor Is No Longer Subject to Juvenile Court
Jurisdiction, the Factual Findings Against Mother Are
Such That Her Appeal Should Not Be Dismissed As Moot.
When a minor turns 18, the minor is no longer subject to
juvenile court jurisdiction, subject to some exceptions not
applicable here. (§ 300; In re David B. (2017) 12 Cal.App.5th 633,
17
645; In re Gloria J. (1987) 188 Cal.App.3d 835, 838.) Generally,
termination of juvenile court jurisdiction renders an appeal from
a previous order in the dependency proceedings moot. (In re C.C.
(2009) 172 Cal.App.4th 1481, 1488.) “However, dismissal for
mootness in such circumstances is not automatic, but ‘must be
decided on a case-by-case basis.’ ” (Ibid.) “[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 N.S. (2016) 245 Cal.App.4th 53, 60.)
Both parties agree that because Emily is no longer a minor and
therefore is no longer subject to juvenile court jurisdiction, no
order can be made that would affect or alter her custody or
placement. We agree. This is especially so given that the
juvenile court placed Emily under informal supervision pursuant
to section 360, subdivision (b), which deprives the court of
authority to take any further action unless the matter is brought
back before the court pursuant to section 360, subdivision (c) via
a new petition. (In re Adam D. (2010) 183 Cal.App.4th 1250,
1259–1260; In re David B., supra, 12 Cal.App.5th at p. 638 [no
new jurisdictional findings can be made for a person who is not a
minor and has not previously been declared a dependent of the
juvenile court].)
Nevertheless, Mother asks this court to review the
jurisdictional findings despite termination of jurisdiction because
of potential adverse consequences that may arise from the
dismissal of the appeal. She argues the allegedly erroneous
jurisdictional findings could subject her to inclusion in the Child
Abuse Central Index (CACI), which she notes may be provided to
“county licensing agencies and others conducting background
investigations of people seeking employment or volunteer work,
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and to out-of-state agencies investigating prospective foster or
adoptive parents.” Emily was subject to juvenile court
supervision under section 300, subdivision (b)(1) (physical abuse,
failure to protect, medical neglect) because it was alleged she and
Mother got into a physical altercation during which Emily
punched Mother, Mother choked Emily, and both sustained
physical injuries as a result of their physical fight.
This constitutes more than general neglect for purposes of
CACI. Penal Code section 11165.2, subdivision (b), defines
general neglect as “the negligent failure of a person having the
care or custody of a child to provide adequate food, clothing,
shelter, medical care, or supervision where no physical injury to
the child has occurred.” Substantiated findings of general neglect
are expressly excluded from those which must be reported for
potential inclusion in CACI; only findings of “child abuse or
severe neglect” are subject to the CACI reporting obligation.
(Pen. Code, § 11169, subds. (a) & (c).) Child abuse and neglect
include “physical injury or death inflicted by other than
accidental means upon a child by another person” and “the willful
harming or injuring of a child or the endangering of the person or
health of a child.” (Pen. Code, § 11165.6.) “ ‘Severe neglect’
means the negligent failure of a person having the care or
custody of a child to protect the child from severe malnutrition or
medically diagnosed nonorganic failure to thrive. ‘Severe neglect’
also means those situations of neglect where any person having
the care or custody of a child willfully causes or permits the
person or health of the child to be placed in a situation such that
his or her person or health is endangered . . . including the
intentional failure to provide adequate food, clothing, shelter, or
medical care.” (Pen. Code, § 11165.2, subd. (a).)
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Because the conduct alleged here reasonably falls within
the definition of child abuse, Mother is at risk of inclusion in
CACI. Accordingly, she has demonstrated prejudice sufficient to
warrant a discretionary review of the jurisdictional findings.
(See, e.g., In re Drake M. (2012) 211 Cal.App.4th 754, 763.)3
We also exercise our discretion to review the findings
because this case presents the important issue of whether a
juvenile court may, as happened here, take jurisdiction over a
minor when insufficient evidence supports the jurisdictional
order in order to provide a parent with services. (In re Isabella F.
(2014) 226 Cal.App.4th 128, 137.)
B. Substantial Evidence Does Not Support the Jurisdictional
Finding of the Juvenile Court.
While evidence of past conduct may be probative of current
conditions, the question under section 300 is whether
circumstances at the time of the hearing subject the child to the
defined risk of harm. Thus, previous acts of neglect, standing
alone, do not establish a substantial risk of future harm; there
must be some reason beyond mere speculation to believe they will
reoccur. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 565.) The
purpose of a dependency proceeding is to protect the child, rather
than prosecute or punish the parent. (In re Alysha S. (1996)
3 The California Supreme Court has granted review in a case
as to (1) whether an appeal of a jurisdictional finding is moot
when the parent asserts that he or she has been or will be
stigmatized by the finding; and (2) whether an appeal of a
juvenile court’s jurisdictional finding is moot when the parent
asserts that he or she may be barred from challenging placement
in CACI as a result of the finding. (In re D.P. (Feb. 10, 2021,
B301135) [nonpub. opn.], review granted May 26, 2021, S267429.)
20
51 Cal.App.4th 393, 397 [evidence of father inappropriately
touching child one year earlier is insufficient to allege those acts
may continue in the future and was therefore insufficient to
interfere with the family].)
By the time of the hearing in Emily’s case, familial
circumstances had undergone epic changes. Simply put, Emily
had turned her life around. As of December 1, 2020, there was no
evidence Emily was still quick to anger, prone to violence,
smoking marijuana, ditching school, staying out overnight
without permission, or disrespecting her parents and their rules.
Rather, Emily was attending school, getting good grades, making
up her class credits, communicating with and respecting the
home rules of her two parents, turning in homework
assignments, and, importantly, not fighting verbally or physically
with her family members, including her mother. Emily’s sea
change may have occurred because of her brother’s tragic death,
the absence of her “bad” best friend, the little therapy she
managed to receive, or simply because she had matured. In any
event, no further confrontations had occurred with Mother in
over a year, including during the three-month period of her
“extended” stay with Mother from June to September 2020. 4 In
light of Emily’s remarkable transformation, neither parent no
longer needed to control her against her will. And there was
4 Interestingly, Emily had more confrontations with Father
than with Mother during the intervening 13-month period
between the filing and adjudication of the petition, including a
physical confrontation where Emily threw items at Father and
Father had to restrain her by grabbing her wrists. Yet,
notwithstanding these events, the juvenile court struck Father
from the petition and dismissed the petition as to him.
21
certainly no evidence that a violent altercation like the one Emily
precipitated with Mother in October 2019 would occur again or,
given the changed family circumstances and the family’s
apparent bonding after Andrew’s death, that Mother herself
would initiate a physical fight with Emily.
The juvenile court must have recognized yet glossed over
the absence of risk of future harm because it described no specific
factual findings as to Mother and justified the assumption of
jurisdiction over Emily as its way to get Mother and Emily
services the court thought might benefit them during the last
four months of Emily’s minority. Notably, the juvenile court did
not instruct Emily or Mother as to what each needed to work on
with these ordered services.
We find this case very similar to In re Ma.V. (2021)
64 Cal.App.5th 11, where the Court of Appeal reversed the
juvenile court because its findings were based on “stale” acts of
domestic violence and neglect which had occurred 10 months
earlier and had not been repeated. There, as here, because of the
pandemic, mother had an unusually long time before the
jurisdiction hearing to resolve the key concerns from which
jurisdiction arose. There, as here, the juvenile court justified its
order by finding mother was uncooperative with children’s
services. The Court of Appeal noted it is to be expected that
parents may not be happy to have governmental interference in
their private lives. The inability of a parent to get along with a
social worker is not evidence to support a removal order. “While
a social worker or juvenile court may feel more comfortable and
confident about a parent who is friendly and gets along with
them, that is not what the law requires.” (Id. at p. 25; see also In
re Jasmine G. (2000) 82 Cal.App.4th 282, 290.)
22
Given the lack of substantial evidence of any risk of future
harm to Emily at the time of the jurisdictional hearing, we
conclude the juvenile court erred in assuming jurisdiction over
this action.
DISPOSITION
The jurisdictional order of the juvenile court is reversed
and its findings are vacated. The matter is remanded to the
juvenile court with directions to dismiss the petition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
23
Filed 12/21/21
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re EMILY L., a Person Coming B309567
Under the Juvenile Court Law.
LOS ANGELES COUNTY ORDER CERTIFYING OPINION
DEPARTMENT OF CHILDREN FOR PUBLICATION
AND FAMILY SERVICES,
[NO CHANGE IN JUDGMENT])
Plaintiff and Respondent,
v.
HELEN F.,
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on November 29, 2021,
was not certified for publication in the Official Reports. For good cause, it
now appears that the opinion should be published in the Official Reports and
it is so ordered.
There is no change in the judgment.
________________________________________________________________________
GRIMES, Acting P. J. STRATTON, J. OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.