In re M.M. CA2/3 ( 2022 )

Filed 5/12/22 In re M.M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
In re M.M. et al., Persons B311078
Coming Under the Juvenile
Court Law. Los Angeles County
Super. Ct. Nos.
LOS ANGELES COUNTY 20CCJP03454A,
DEPARTMENT OF CHILDREN 20CCJP03454B,
AND FAMILY SERVICES, 20CCJP03454C
Plaintiff and Respondent,
v.
Ma.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Marguerite D. Downing, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Peter Ferrera, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
The juvenile court declared mother Ma.M.’s children
dependents and removed them from her custody after finding
she was involved in several domestic violence incidents with
her former boyfriend. During the most recent incident, one of
the children intervened and started hitting the boyfriend. On
appeal, mother contends there is insufficient evidence supporting
the court’s removal orders and there were reasonable means
to protect the children short of removal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2020, the Los Angeles Department of Children
and Family Services (DCFS) received a referral alleging mother’s
boyfriend emotionally abused her two children, eight-year-old
M.M. and six-year-old J.M. During DCFS’s investigation of
the referral, it discovered mother has a long history of domestic
violence with multiple partners. Several years earlier, M.M.’s
father severely beat mother and threatened to kill her and
her children. After ending her relationship with M.M.’s father,
mother started a relationship with J.M.’s father, which also
involved domestic violence.
Mother began a relationship with H.W. (father)1 in
September 2019. A couple of months later, in November 2019,
mother called the police because she was concerned he would
become physically aggressive during an argument. Father
told mother her family was going to miss her, which she
interpreted as a threat to her life.
1 We refer to H.W. as “father” because he is the father
of mother’s other child, J.W., with whom she was pregnant
at the time of the referral.
2
That same month, mother enrolled in therapy to address
past domestic violence and current trauma. Mother had
previously completed group counseling while living at a domestic
violence shelter.
Mother and father had another domestic violence incident
in March 2020. According to a police report, mother and father
had a verbal fight about father’s relationship with another
woman. Father became aggressive and threw papers at mother,
striking her in the face. He then grabbed mother by the collar
with both his hands and pressed his knuckles into her jaw,
causing her pain. He repeatedly shoved mother against a wall,
causing her to hit her head and shoulders.
Mother told the police that father previously pushed her
onto a bed and held her there by her wrists and neck. According
to mother, father had also threatened to use or used a weapon
against her, threatened to kill her, and attempted to smother,
strangle, or suffocate her. Mother requested an emergency
protective order against father because she was worried
he would retaliate against her for filing a police report.
During her initial interview with DCFS on May 18, 2020,
mother said she was pregnant with father’s child, but they
were not currently in a relationship. Mother insisted she was
not fearful of father and did not believe he would hurt her. When
confronted with evidence showing she previously called the police
on father, Mother claimed she “ ‘jump[ed] the gun’ ” by doing so.
Mother assured the social worker that, given her past
experiences with domestic violence, she would not continue
in a domestic violence relationship in the future. She believed
the current referral was retaliation because she and father filed
a complaint against a DCFS case worker and supervisor in a
3
child welfare case involving father’s other child. That case also
involved domestic violence by father.
About two weeks later, on May 30, 2020, mother called
the police because father showed up at her apartment complex
and refused to leave. A social worker advised mother to consider
obtaining a restraining order against father.
Mother and father were involved in another domestic
violence incident a few days later. According to mother, on
June 3, father asked to stay at her apartment, but she refused.
Father responded by taking mother’s phone and purse, and
she eventually agreed he could stay at the apartment while
she took the children to a birthday party. On the way home
from the party, mother learned that father had cheated on her.
When mother arrived home with the children, she and
father had a verbal argument. At some point, Mother pushed
father’s face with an open hand. Father held mother’s arms in
a way she felt was “ ‘too hard,’ ’’ and he shoved her onto a bed.
J.M. jumped on father’s back and started hitting him. Father
took J.M. and placed him on the bed. Mother tried to get her
cell phone, but father bit her arm. M.M. came into the room
and yelled at father to stop.
Mother and the children told father to leave, but he
refused. Mother threw a shoe and plastic bottle of mayonnaise
at father, and he shoved her onto the couch. Father squeezed
mother hard, causing her to scream for help. The children
became upset and yelled at father to leave. Father finally left
the apartment when mother started to call the police. Mother
filed a police report and requested an emergency protective order
against father.
4
While discussing the incident with a social worker, Mother
said she did not mean to “ ‘paint the image that [father] is a
bad person because I know he is not violent and that he really is
a good man.’ ” Nevertheless, she agreed to request a temporary
restraining order (TRO). A few days later, she said she no longer
needed a restraining order, and she did not want to go through
her pregnancy without father. Mother, however, changed her
mind again, and she filed a request for a TRO on June 11, 2020.
She listed herself and her children as protected persons.
J.M. told a social worker that during the June 3 incident,
father pushed mother and she “ ‘fell slowly’ ” into a closet. J.M.
said he had to defend mother, and he had previously thought
about hitting father and “ ‘throw[ing] him off the house.’ ”
According to J.M., mother and father had 10 previous incidents
of violence. One time, father cut his wrists with scissors after
mother locked him out of the apartment. J.M. said he was
“a little afraid” of father and did not want him to return to
their home. Mother, however, told J.M. that father would be
coming around again because of the baby.
M.M. told a social worker there had been four previous
altercations between mother and father. One time, M.M. was
in a car with mother while father was driving another car.
Father was angry and “ ‘smashed’ ” mother’s car. M.M. said
he “ ‘won’t let [father] hurt [mother] again,’ ” and he would
push father if he tried to beat her.
On June 22, 2020, DCFS received information that mother
continued to allow father in her home and around her children.
Mother initially denied doing so, but she eventually admitted it.
Mother said she and father had been getting along, and she and
the children missed him.
5
Two days later, on June 24, 2020, the court granted
DCFS’s request to detain the children. While preparing to serve
the order, a DCFS social worker saw mother and the children
walking toward father, who was outside mother’s apartment
complex. The social worker later saw mother preparing to get
into a car with father. When the social worker told mother about
the detention order, mother lied and said the children were not
at home. DCFS detained the children and placed them with
a non-relative.
On June 26, 2020, DCFS filed a petition to declare J.M.
and M.M. dependents under Welfare and Institutions Code
section 300, subdivisions (a) and (b).2 The petition alleged
mother and father have a history of engaging in violent verbal
and physical altercations, which endangered the children’s
physical health and safety and placed them at risk of serious
harm.
In July 2020, Mother told DCFS she had enrolled in a
domestic violence program. She claimed she had not had contact
with father since June 11, 2020, when she obtained the TRO.
She said she believed DCFS detained the children because she
filed complaints in a separate case involving father’s other child.
The family court denied mother’s request for a domestic
violence restraining order on August 28, 2020. Around that time,
mother stated she was spending more time living with her niece
in order to avoid father.
Mother gave birth to J.W. in November 2020. After doing
so, she became seriously ill and was placed in a medically-
2 Future undesignated statutory references are to the
Welfare and Institutions Code.
6
induced coma. Mother eventually recovered and moved in with
her niece. She planned to move to the Barstow area to be further
away from father.
On November 25, 2020, a family friend told DCFS that she,
mother, and father had dinner together about a month earlier.
About a week later, DCFS filed a petition to declare J.W.
a dependent under section 300, subdivisions (a), (b), and (j). The
petition alleged mother and father’s history of domestic violence
placed the child at risk of harm (counts a-1, b-2, j-1), and mother
could not care for the young child due to her medical condition
(count b-1).
On January 4, 2021, father told DCFS he continued to
have ongoing contact with mother. Mother denied father’s claim.
A few days later, however, she admitted contacting father
because she was upset with him.
The court held a combined jurisdiction and disposition
hearing on February 17, 2021 related to all three children.
On J.W.’s petition, the court sustained a single count under
section 300, subdivision (j), related to mother and father’s
domestic violence.3 On J.M. and M.M.’s petition, the court
sustained both counts under section 300, subdivisions (a) and (b).
As to disposition, mother argued there were reasonable
means to protect the children in lieu of removal, such as
unannounced visits by DCFS. DCFS urged the court to instead
remove the children from mother’s custody in light of her
long history of domestic violence and failure to demonstrate an
understanding of its severity and the risk it posed to her children.
3 The court dismissed counts a-1, b-1, and b-2.
7
The court declared all three children dependents and
removed them from their parents’ custody. The court noted that
returning the children to mother’s custody would be detrimental
because mother “continues to involve herself in [domestic
violence] . . . and does not have any insight in programing.”
The court ordered mother to participate in parenting classes,
a domestic violence support group for victims, individual
counseling, and conjoint counseling with father if they intended
to reconcile.
Mother timely appealed. On appeal, she challenges only
the court’s dispositional orders removing the children from
her custody.
DISCUSSION
1. Mother’s appeal is not moot
While this appeal was pending, the juvenile court returned
mother’s children to her custody.4 In light of those orders, DCFS
urges us to dismiss mother’s appeal as moot. We decline to do so.
“An appeal becomes moot when, through no fault of the
respondent, the occurrence of an event renders it impossible for
the appellate court to grant the appellant effective relief.” (In re
Esperanza C. (2008) 165 Cal.App.4th 1042, 1054.) “[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.)
An appeal is not moot if the purported error could negatively
affect the appellant in future proceedings. (See In re J.K. (2009)
4 On January 11, 2022, we granted DCFS’s request to take
judicial notice of the juvenile court’s August 18, 2021 minute
orders returning the children to mother’s home. (Evid. Code,
§ 452, subd. (d).)
8
174 Cal.App.4th 1426, 1432; In re C.C. (2009) 172 Cal.App.4th
1481, 1488.)
Mother argues her appeal is not moot because the court’s
removal orders could negatively affect her in future dependency
proceedings related to the children. Specifically, she argues
that because the time limits for reunification services run
from the date the court first removes a child, if the court were
to remove the children from her custody again, she would not
be entitled to additional reunification services. (See § 361.5,
subd. (a)(1) [a parent is generally entitled to 6 to 12 months of
reunification services]; In re T.W. (2013) 214 Cal.App.4th 1154,
1158 [the time limits for services set forth in section 361.5
become operable when a child is removed from the custody
of both parents at a disposition hearing].) In light of this
possibility, and out of an abundance of caution, we will consider
mother’s appeal on the merits.
2. Substantial evidence supports the court’s removal
orders
To remove children from parental custody, the juvenile
court must have clear and convincing evidence that there
is or would be a substantial danger to the children’s physical
health, safety, protection, or physical or emotional well-being
if returned home, and there are no reasonable means to protect
the children’s physical health without removing them from the
home. (§ 361, subd. (c)(1).) Generally, a jurisdictional finding
alone is not prima facie evidence the child cannot remain in the
parent’s physical custody. (In re E.E. (2020) 49 Cal.App.5th
195, 217–218.) In determining whether to remove the child,
the court may consider the parent’s past conduct and current
circumstances, as well as the parent’s response to the conditions
9
that caused the juvenile court to intervene. (In re D.B. (2018)
26 Cal.App.5th 320, 332.) The parent need not be dangerous,
and the child need not have suffered actual harm, before removal
is appropriate. (Id. at p. 328.)
Our Supreme Court recently clarified the standard for
appellate courts to use when reviewing findings that must be
proved by clear and convincing evidence. In such cases, “the
question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.
Consistent with well-established principles governing review
for sufficiency of the evidence, in making this assessment the
appellate court must view the record in the light most favorable
to the prevailing party below and give due deference to how
the trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 995–996; see also In re Jasmon O. (1994) 8 Cal.4th
398, 423.) The appellant has the burden of showing there is
insufficient evidence to support the juvenile court’s findings
or orders. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Here, the evidence shows mother and father were involved
in numerous violent altercations, some of which occurred in the
children’s presence. Mother reported that father threatened
to use or used a weapon against her, threatened to kill her, and
attempted to smother, strangle, or suffocate her. In March 2020,
father struck mother in the face with papers, grabbed her by the
collar, pressed his knuckles into her jaw, and repeatedly shoved
her against a wall. In June 2020, he shoved mother onto a bed
and couch, held her down, squeezed her tightly, and bit her arm
10
as she reached for her phone. During the incident, J.M. tried
to protect mother by jumping on father’s back and hitting him,
and M.M. yelled at father to stop. According to M.M., on another
occasion, father caused a collision with mother’s car while the
child was a passenger. Both children, moreover, indicated they
would intervene if father used violence against mother in the
future. As mother seems to concede, exposure to father’s violence
clearly poses a serious threat to the children’s health and well-
being. (See In re Cole L. (2021) 70 Cal.App.5th 591, 603 [noting
there is a risk of harm to a child “if a father strikes an infant’s
mother while she is holding the child or an older child intervenes
during a fight to protect her mother from her father’s abuse”];
In re Sylvia R. (1997) 55 Cal.App.4th 559, 562 [spousal abuse is
detrimental to children, even if they are not physically harmed].)
Mother nevertheless insists the court erred in removing
the children from her custody because there is no evidence
showing they are at risk of exposure to further domestic violence.
According to mother, although she demonstrated poor judgment
in the past, the record shows that as of the disposition hearing,
she was serious about keeping her distance from father. In
support, she points to evidence showing she was participating
in a domestic violence program and counseling, she attempted
to obtain a restraining order against father in August 2020,
she moved in with her niece to avoid father, and she was actively
searching for alternative housing further away from father.
While mother’s efforts are commendable, the juvenile
court could have reasonably concluded they were not sufficient
to eliminate the risk of harm to the children. The evidence
shows mother has a long history of domestic violence in her
relationships, including with all three of her children’s fathers.
11
She also has a long history of participating in services to address
those issues, which clearly were not successful. Indeed, even
after completing group counseling while living at a domestic
violence shelter and participating in therapy to address domestic
violence in November 2019, mother was involved in at least two
serious incidents of domestic violence with father, one of which
directly involved her children. Mother also displayed a severe
lack of insight, as she repeatedly lied to DCFS about father’s
violence and her contact with him, denied that father was a
violent person despite overwhelming evidence to the contrary,
and insisted the dependency case was retaliation by DCFS
for her complaints in another matter. While it is true mother
subsequently participated in more services, given her history,
the court could have reasonably concluded such participation
alone was not enough to alleviate the risk to her children.
That mother filed for a protective order against father,
moved in with her niece, and was searching for other housing
also do not conclusively show there was no longer a risk to the
children. Mother had previously requested protective orders
against father, yet she consistently resumed contact with him
and continued to allow him to be around her children. The
evidence also shows mother continued to have contact with father
after moving in with her niece. A family friend told DCFS she
had dinner with mother and father sometime around October
2020, and Mother admitted contacting father in January 2021.
On this record, the juvenile court could have reasonably
concluded mother is likely to continue to have contact with
father, which places the children at risk of harm. (See In re
T.V. (2013) 217 Cal.App.4th 126, 133 [“A parent’s past conduct
is a good predictor of future behavior.”].)
12
We also reject mother’s contention that the court’s exercise
of jurisdiction was sufficient to protect the children. Mother
insists that, once the court took jurisdiction, she had an incentive
to comply with its orders so she could maintain custody of the
children. While true, mother had similar incentives throughout
the dependency proceedings, yet continued to have contact
with father and minimize the extent of his domestic violence.
Mother alternatively argues the juvenile court failed
to consider reasonable means to protect the children without
removing them from her custody, such as a no-contact order
with father and unannounced visits by DCFS. She points out
that, although the court’s minute order states it found there are
no reasonable means by which the children could be protected
without removal, the court did not actually discuss any
alternatives at the hearing.
Contrary to mother’s suggestions, section 361 does not
require a juvenile court to discuss alternatives to removal on
the record. The court, moreover, implicitly rejected any such
alternatives when it found mother’s domestic violence history
and lack of insight created a risk of harm to the children
if returned to her home. (See In re Diamond H. (2000) 82
Cal.App.4th 1127, 1137, disapproved of on other grounds by
Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6
[a court necessarily considered and rejected an alternative
to removal when it found the child could not safely be returned
to her mother’s custody].) There is also substantial evidence
to support those implied findings. The court, for example,
could have reasonably determined a no-contact order would not
be sufficient given mother previously ignored protective orders
against father. The court also could have found unannounced
13
visits would not be sufficient given father’s contact with
mother and the children was sporadic. (See In re A.F. (2016)
3 Cal.App.5th 283, 293 [unannounced visits can only assess
the situation at the time of the visit].)
Under these circumstances, substantial evidence supports
the juvenile court’s conclusion that the children could not be
adequately protected in mother’s custody.
DISPOSITION
We affirm the juvenile court’s orders.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
KIM, J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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