In re P.S. CA2/8 ( 2021 )

Filed 1/28/21 In re P.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re P.S. et al., Persons Coming B305233
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 19CCJP07585A–C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.S. et al.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kim L. Nguyen, Judge. Affirmed in part and
dismissed in part.
Marissa Coffey, under appointment by the Court of Appeal,
for Defendant and Appellant C.S.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant J.C.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and David Michael Miller, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________
The juvenile court assumed jurisdiction over three sisters
and removed the two older ones from parental custody.
Substantial evidence showed the parents bruised these two with
belts. After the parties filed their appellate papers, the juvenile
court restored parental custody. One parent concedes her appeal
is now moot. The other parent maintains he has been prejudiced
by the juvenile court’s erroneous assumption of jurisdiction.
Because the court’s finding of jurisdiction as to the older sisters
was proper, we affirm in part. We also dismiss as moot the
mother’s appeal and the remainder of the father’s appeal.
Statutory references are to the Welfare and Institutions Code.
I
The Los Angeles County Department of Children and
Family Services filed a section 300 petition on behalf of the
children in November 2019. The children were then eight, six,
and newly born. We refer to the children as the eldest, the
middle child, and the infant to protect their anonymity. (Cal.
Rules of Court, rule 8.401(a)(2).)
The petition asserts jurisdiction under section 300,
subdivisions (a), (b)(1), and (j). The petition alleges Mother and
her male companion physically abused the two older girls many
times by hitting them with belts. The girls suffered pain,
suffering, swelling, and bruises. The petition also asserts Mother
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knew or should have known of, yet failed to prevent, her
companion’s abuse of the girls.
Mother’s male companion is the biological father of the
infant and the presumed—but not biological—father of the older
girls. We refer to him as Father.
Concerning the infant, the petition alleges the parents’
abuse of the older girls and Mother’s failure to protect them from
Father created a detrimental home environment and placed the
infant at risk of serious physical harm.
The Department’s investigation found the following.
On November 21, 2019, the middle child spoke with school
personnel, who then made a child abuse referral to the
Department. The child reported her mother recently spanked her
and her older sister after finding pictures of the girls on her
sister’s phone. Father used a belt on them after he came home.
The child had a bruise on her wrist and another one—“a bad
one”—on her thigh that hurt.
The Department interviewed the child and her sister at
school later that day. The eldest reported Mother and Father
punished her and her sister by making them stay in a corner for
long periods until their legs hurt. Sometimes they were spanked,
and sometimes the spankings left marks. Father had spanked
her at least 10 times before the latest incident. He used different
belts on her and her sister. The eldest showed the social worker
a “large, purplish bruise” on her forearm; this was from a leather
belt Father used. The bruise was consistent with raising an arm
in a defensive position. The girl’s arm was swollen before, but
the swelling was going down. She was afraid of Father. In her
words: “He’s really mean to us. He yells at us for no reason and
he doesn’t like my sister [ ]. Sometimes he hits me so hard with
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the belt, I use the bathroom on myself and then I get in trouble
for peeing on myself.”
The middle child’s interview was similar. She told the
social worker Mother and then Father hit her with a belt on the
day in question. They “always” hit her when she gets in trouble,
usually with a belt. Father would laugh after hitting them. The
child was scared of him and sometimes hid when he got upset.
She said he did “mean stuff” to them but did not offer specifics.
The social worker observed “extensive large, purplish and black
bruises on the length of her entire left thigh, including the front
and sides of her leg.” A large, purple bruise covered the child’s
wrist, “consistent with a defensive mark.” She was still in pain
two days after the “whooping.”
A police report from November 22, 2019 detailed the
following: Officers met with the two girls at a hospital. Both
girls said both Mother and Father had hit them with belts. The
eldest reported she was whipped approximately eight times in
the arm. She and her sister were “frequently” hit with a belt to
the point where they “use[d] the restroom on themselves.” The
middle child—whose eyes immediately watered when asked what
happened, and who answered the officers in whispers—said her
parents hit her “everywhere.” The reporting officer saw bruising
on both girls.
At the time of the referral, Mother was at the hospital. She
had just given birth to the infant. The Department interviewed
Mother at the hospital, and afterwards. Mother admitted hitting
the older girls with a belt a few times for the phone incident. She
said she was shocked and angry after seeing a video of the middle
child dancing inappropriately. Mother denied hitting them hard
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and defended herself by claiming the girls bruised easily. Father
was in the room at the time but did not hit the children.
Mother admitted using a belt on the girls in the past but
maintained she usually disciplined by other means. According to
Mother, Father never hits the girls, and they are not afraid of
him.
Father told the Department he witnessed Mother
“whooping” both girls with a belt for a few minutes that night.
Then he “just left and let her [Mother] handle it.” Later in the
investigation, Father denied being present for the beating. He
speculated the girls had been coached to say he hits them.
Father admitted yelling at them and taking away their toys and
television for discipline but said he does not hit the girls because
they are not his kids to spank.
At the November 26, 2019 detention hearing, the juvenile
court ordered the older sisters detained. The girls were
temporarily living with their maternal grandparents. The infant
(then a newborn and still nursing) was released to the parents.
On January 10, 2020, more than a month after the older
sisters were detained, a social worker interviewed the girls again,
this time during one of Mother’s monitored visits. The eldest
again described the beating she received for the phone incident.
She “got hit all over,” especially her arms and legs. She cried
because it hurt, and she had bruising later that night. Mother
hit her once before this incident; but she usually took away
electronics. The child maintained she “deserved the whooping.”
She was not afraid of her parents and wanted to go home. She
felt bad because Mother had always been there for her and her
sister.
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The middle child, too, confirmed Mother got mad and gave
the girls a “whooping” for the phone incident. Mother hit her
hand and legs with a belt. It was fast. But it hurt, and she cried.
The bruise burned that night when she took a bath. This was her
third whooping. Like her older sister, the middle child
maintained she “should have gotten a whooping because I did
wrong.” She wanted to go home, missed her parents, and was not
afraid of them.
This time, both girls maintained Father never has hit them
with a belt.
On January 30th, more than two months after the older
girls began living with their grandparents, the Department
interviewed the girls a third time. The eldest child reported
Father yells at her and her sister and makes them feel scared;
but he never hit her. She first denied and then admitted telling
the initial social worker Father hit her, explaining she did this
because she did not want Mother to be with him. She does not
want to share her mother with Father. But she wanted to go
home, even if he was there.
The middle child told a similar story: Father only yelled at
the girls and scared them but did not hit them. Her initial
statements about Father were motivated by a desire to break up
her parents so she could have her mother back. She, too, wanted
to go home.
During this visit, the Department also interviewed the
maternal grandmother. She had never seen Father hit the
children and did not believe he ever did. The girls told her
Father never hit them. They do not like sharing Mother with
Father. And they are dishonest at times.
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A last minute information report showed both parents were
participating in anger management and parenting classes.
The juvenile court held a combined jurisdiction and
disposition hearing on February 27, 2020. It found the older
sisters’ initial statements most credible. The court sustained the
entire petition and declared the three children dependents of the
court.
The court then ordered the older sisters removed from
parental custody. However, it believed the infant was differently
situated and kept her in parental custody, over the Department’s
objection.
Both parents appealed. Father challenges the juvenile
court’s jurisdictional findings and the removal order. Mother
challenges only the removal order.
II
Recent events have rendered some issues moot.
On September 16, 2019, the juvenile court issued orders
returning the older sisters to parental custody and terminating
jurisdiction as to the infant. The court set a review hearing for
the older sisters for March 17, 2021.
We took judicial notice of these orders on our own motion
and requested briefing regarding whether the appeals, or issues
therein, were now moot.
Mother concedes the juvenile court’s orders have rendered
her appeal moot. Father argues his appeal is not moot because
the court’s jurisdictional findings were erroneous, the existence of
these findings can “haunt” him later, and this court can provide
effective relief by vacating the findings. Father does not mention
the removal order in his supplemental briefing.
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The Department agrees with Mother and argues the issue
of removal is moot. It also requests dismissal of Father’s appeal
as to the infant.
We agree with Mother that her appeal is moot, and we
dismiss her appeal. (See In re N.S. (2016) 245 Cal.App.4th 53,
58–59 (N.S.) [appellate court dismisses appeal when it can no
longer grant effective relief].) In addition, because the juvenile
court terminated jurisdiction over the infant, we cannot provide
effective relief as to this child. (See id. at pp. 61–63.)
Father argues an actual controversy remains, as the
jurisdictional findings “will remain forever” and threaten
unspecified future harm. But the three cases on which Father
relies do not show any issue regarding the infant is justiciable.
In In re J.A. (2020) 47 Cal.App.5th 1036, 1050–1051, the
appellate court exercised its discretion to address jurisdictional
errors after the juvenile court terminated jurisdiction because the
issue before it was likely to recur in the future and was one of
public importance. The appellate court reasoned: “If we fail to
exercise our discretion to resolve the jurisdictional appeal, the
Department may feel free to continue to pursue jurisdiction in
other cases where there is no evidence of substance abuse, and no
evidence of substantial risk—only evidence that a child was born
testing positive for marijuana, bolstered only by vague and
unproven concerns.” (Id. at p. 1051.) In other words, the
Department had overreached in bringing the case, and the court
believed it needed to curb future overreaching.
In In re Justin O. (2020) 45 Cal.App.5th 1006, 1018, a
grandmother’s appeal attacking jurisdictional findings was not
moot, even though she no longer sought custody of the children,
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because the findings had serious ongoing consequences for her—
they resulted in “severely restricted” visitation rights.
And in In re Adam D. (2010) 183 Cal.App.4th 1250, 1258–
1261, the issue was whether an appealable order existed where
the juvenile court had ordered something akin to informal
supervision under section 360, subdivision (b).
Here, Father identifies no continuing issue of public
importance and no concrete negative consequence flowing from
the jurisdictional findings concerning the infant. These
particular findings are not the basis of any current family law or
other order adverse to Father. (See N.S., supra, 245 Cal.App.4th
at p. 61.) Father’s concerns instead are generalized and
speculative. We decline to exercise our discretion to review these
findings. (See id. at p. 59 [identifying circumstances in which a
court may exercise such discretion even though it cannot provide
effective relief].) And we dismiss as moot the portions of Father’s
appeal challenging these findings and the removal order.
The remaining issue is the validity of the juvenile court’s
jurisdictional findings concerning the older sisters. These
children remain under the juvenile court’s jurisdiction. Father
argues “[n]either Mother’s nor Father’s conduct supported a
finding that [the children] fell within the court’s dependency
jurisdiction.” That is, he challenges the jurisdictional findings in
their entirety. As we explain below, the juvenile court was right
to assume jurisdiction over these two children.
III
We review jurisdictional findings for substantial evidence.
(In re R.T. (2017) 3 Cal.5th 622, 633 (R.T.).) In doing so, we
indulge all reasonable inferences and resolve all conflicts in favor
of the findings; examine the record in the light most favorable to
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the juvenile court’s determinations; and refrain from making
credibility determinations. (Ibid.; In re D.P. (2014) 225
Cal.App.4th 898, 902 (D.P.).)
Here, jurisdiction was grounded in section 300,
subdivisions (a), (b)(1), and (j). We focus on the first subdivision,
as we can affirm the jurisdiction ruling if substantial evidence
supports any ground enumerated in the petition. (D.P., supra,
225 Cal.App.4th at p. 902.)
Section 300, subdivision (a) provides for jurisdiction when a
child has suffered or is at substantial risk of suffering serious
physical harm inflicted nonaccidentally by a parent.
IV
Substantial evidence supports the juvenile court’s decision
to assume jurisdiction under this provision.
Substantial evidence shows Mother and Father
intentionally inflicted serious physical harm on the older sisters
in November 2019. Substantial evidence also shows the parents’
actions put the girls at substantial risk of such harm.
Both children reported Mother and Father beat them with
a belt on the day in question. Extensive bruising on their bodies
corroborated their accounts. The middle child was in pain days
later. The statements the girls made to school personnel, the
initial social worker, and the police about this beating—all close
in time to the incident—were consistent. Mother admitted she
hit the girls with a belt multiple times that day.
The record also contains credible evidence that Father
allowed Mother to inflict serious physical harm on the girls, and
vice versa. Mother said Father was in the room when she used
the belt on the girls. Initially, Father admitted he was present
for the beating. But he did nothing to stop it. Instead, he left
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and let Mother “handle it.” The eldest child told police Mother
and Father together whipped her and her sister with belts. Each
parent thus was an aggressor. Each was passive when the other
was violent. Both minimized the severity of the abuse.
This was not the only time the parents had used belts on
the girls. The middle child said her parents always hit her when
she got in trouble, and usually with a belt. The eldest said
Father often spanked her and her sister with a belt and would hit
them so hard, they would wet themselves. Both children said
they feared him.
This was not appropriate discipline. Dancing
inappropriately and videotaping the dancing do not warrant a
severe beating. The parents’ conduct was excessively punitive,
not genuinely disciplinary. (See In re D.M. (2015) 242
Cal.App.4th 634, 641 (D.M.) [outlining considerations for
determining when parental discipline is reasonable or excessive].)
Mother admitted she acted out of shock and anger.
The violence here is nothing like the discipline described in
D.M., supra, 242 Cal.App.4th 634, on which Father relies. There,
a mother occasionally spanked her children on their bottoms with
a hand or sandal. There was no evidence of marks or bruises
from the spankings. (Id. at pp. 637–638.)
Contrary to Father’s suggestion, this case also is unlike In
re Isabella F. (2014) 226 Cal.App.4th 128, 139, where “[t]he
primary motivating factor in declaring jurisdiction appears to
have been to offer mother services,” not to address any risk of
serious harm to the children.
Father argues there was not a risk of serious harm to the
children because he and Mother made substantial progress in
completing anger management and parenting classes and were
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cooperating with the Department. But here, there was
substantial evidence of actual physical harm, so our analysis does
not turn solely on risk.
The lone case on which Father relies for this argument does
not help him. In re L.C. (2019) 38 Cal.App.5th 646 concerned a
guardian’s occasional drug use outside of the home and the child’s
presence. During the dependency proceedings, the guardian was
contrite, ultimately admitted his drug use, and began drug
testing on his own initiative. (Id. at p. 650–651.) Father’s
situation is different. He maintains he does not hit the girls and
claimed the girls were coached to lie about him.
Father emphasizes the girls recanted their initial
statements about him and revealed a motive for lying initially:
they wanted Father out of Mother’s life. In essence, Father asks
us to reweigh the evidence. We decline. (See R.T., supra, 3
Cal.5th at p. 633.)
The juvenile court correctly ruled the older sisters came
under its jurisdiction. (See In re Mariah T. (2008) 159
Cal.App.4th 428, 438–439 [dependency jurisdiction proper where
mother hit young child on the stomach and forearms with a belt,
causing deep, purple bruises].)
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DISPOSITION
We dismiss Mother’s entire appeal and Father’s appeal as
to the infant and as to disposition. We affirm the juvenile court’s
ruling that it had jurisdiction over the older sisters.
WILEY, J.
We Concur:
BIGELOW, P. J.
STRATTON, J.
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