In re J.R. CA2/4 ( 2020 )

Filed 11/2/20 In re J.R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
In re J.R., a Person Coming B299814
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
19CCJP04187
19CCJP04187A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Martha A. Matthews, Judge. Dismissed
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine Miles,
Assistant County Counsel, and Kim Nemoy, Deputy County
Counsel, for Plaintiff and Respondent.
Father J.R. appeals from juvenile court’s jurisdictional and
dispositional orders establishing jurisdiction over his son, J.,
pursuant to Welfare and Institutions Code section 300,1 and
giving primary custody to J.’s mother, M.R. Father contends that
there was insufficient evidence to establish that J. was at risk of
harm. Father concedes that the court will maintain jurisdiction
over J. regardless of the outcome of this appeal, as mother has
not appealed the jurisdictional findings related to her conduct.
He also concedes that his challenge to the court’s dispositional
orders has been rendered moot by further rulings in the juvenile
court while the appeal was pending. Nevertheless, he urges us to
exercise our discretion to consider his assertions of error
regarding jurisdiction. We decline to do so and dismiss the
appeal.
BACKGROUND
Petition, Jurisdiction, and Disposition
Mother and father have one child together, J., born in
2013. In January 2017, the family court granted mother’s
2
petition to annul her marriage to father. The court awarded
mother primary physical custody of J. and granted father
visitation every other weekend.
1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2Mother is not a party to this appeal.
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On June 28, 2019, the case was referred to the Los Angeles
County Department of Children and Family Services (DCFS)
after father brought six-year-old J. to the sheriff’s station to
report abuse by mother. Mother had informed father earlier in
the day that J. had fallen and sustained a bruise. However,
when the babysitter dropped J. off for father’s visitation, father
noticed that J. had several fresh scratch marks on his face and
body, and bruises on his thigh. J. was interviewed by a sheriff’s
deputy and by a DCFS children’s social worker (CSW). J.
reported that mother was upset with him, scratched him, and hit
him with her hands and a belt. Father told the CSW that he had
made several prior reports about mother’s physical abuse and
neglect. He also reported a prior incident in which he observed
mother driving under the influence of alcohol with J. in the car.
Mother denied any abuse. She told the CSW that J.’s
babysitter had a 10-year-old autistic son, and that while the
babysitter was transporting both children, the son had a “temper
tantrum episode,” lashing out at J. and scratching him. Mother
stated that father had made multiple reports to DCFS alleging
that she had abused the child, but that J. had ADHD and
sometimes sustained scratches and bruises from rough playing.
Mother also stated that J. informed her that father’s girlfriend’s
children were mean to him and hit him, and that J. returned
from visiting father with bruises.
DCFS noted a pattern of ongoing physical abuse referrals
by both parents against each other, including nine DCFS
investigations for physical abuse and neglect between 2016 and
2018. Most of the incidents involved scratching or bruising and
many included visits to the hospital for evaluation. The referrals
were ultimately closed, mostly as inconclusive.
3
DCFS filed a dependency petition on July 2, 2019 on behalf
of J. under section 300, subdivisions (a) and (b)(1). In count a-1,
the petition alleged that mother had physically abused the child,
including on June 28, 2019, when she grabbed J. by his arm,
slapped his face, and repeatedly struck his body with her hands
and belt. Count b-1 alleged the same abuse by mother. Count b-
2 alleged that on a prior occasion, mother endangered J. by
driving under the influence of alcohol while J. was in the vehicle.
J. was detained from both parents and placed in shelter care.
In its jurisdiction/disposition report, DCFS reported a
further interview with J. on July 15, 2019. J. denied being hit by
mother or father and stated that only the babysitter’s son “hit me
too much on my legs and arms.” J. described both mother and
father’s girlfriend as “nice.” DCFS also spoke with the babysitter,
who confirmed that her son had scratched J. repeatedly on June
28, 2019. Both parents reported concerns with J.’s safety when
he was with the other parent.
DCFS noted that J. had made inconsistent statements
during the course of the investigation regarding his injuries, and
further that J.’s “high energy and activity due to his diagnosis of
ADHD” was a possible contributing factor for his past injuries.
DCFS concluded that the injuries J. sustained on June 28, 2019
were caused by the babysitter’s son. DCFS therefore
recommended that the court dismiss counts a-1, b-1, and b-2 from
the petition, as there was no evidence to support the allegations
that mother physically abused J. or endangered him by driving
under the influence. DCFS requested a continuance to amend
the petition to include a count of emotional abuse against father
and mother, stating that in multiple prior referral investigations,
father and mother “recycled prior allegations of abuse and neglect
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against each other to gain leverage regarding J[.]’s custody.”
DCFS filed a first amended petition on July 23, 2019,
adding allegations under section 300, subdivisions (b)(1) and (c).
As amended, count b-3 alleged that mother and father “created a
detrimental home environment” for J. by “accusing each other of
abusing and neglecting” J. and reporting such abuse and neglect
to law enforcement and child protection services “for the purpose
of gaining and/or maintaining custody” of J. DCFS alleged one
prior incident in which father confronted mother by telephone
about neglecting J. Father instructed J. to speak to mother to
support father’s allegation, and mother yelled at J. to stop lying.
The petition further alleged that J. showed behaviors indicating
emotional distress, including hitting peers and destroying his
own property. Count c-1 contained the same allegations.
At the adjudication and disposition hearing on July 24,
2019, the court dismissed counts a-1, b-1, b-2, and c-1. As to the
remaining count, b-3, the court found “substantial evidence of a
pattern of conduct by both parents...the overall result has been to
hurt their child.” The court noted that the abuse allegations by
the parents began at the time of their separation and family
court proceedings. The court continued, “If someone is going to
accuse someone of physical abuse every time a six-year-old boy
has a bruise, this child is going to have so many interactions with
police and social workers that that in and of itself is going to
harm the child. . . . [T]here just seems to be a lot of reaction to
things that are kind of normal during childhood being
weaponized against each other, and it has to stop.” The court
further noted that the evidence of J.’s behavioral issues suggested
“that the child is feeling some emotional turmoil and kind of
acting it out through his behavior,” and “tend to show that the
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child is being affected by all of this conflict that is going on over
him.”
The court declared J. a dependent and sustained the
amended count b-3, finding father’s and mother’s conduct placed
J. at risk of suffering serious emotional damage and physical
harm. The court released J. to the home of both parents, with
primary custody to mother and unmonitored, weekend visitation
for father.
Father timely appealed. DCFS filed a cross-appeal,
challenging the court’s dismissal of count c-1.
Subsequent events during appeal3
On January 24, 2020, DCFS received a call from mother
reporting physical abuse by father. According to mother, on
January 23, 2020, J. disclosed to her that father had scratched
him earlier that day while the family was at the courthouse for a
hearing. J. purportedly told mother that father took him into the
bathroom and checked his body for marks and bruises. Father
then purposely scratched J. on his back, resulting in two visible
scratches. Mother also brought J. to the police station on
January 24, 2020 making the same allegations. J. also had visible
bruising.
DCFS filed a subsequent petition on February 4, 2020
under section 342, alleging dependency jurisdiction under section
300, subdivisions (a) and (b)(1).4 Counts a-1 and b-1 alleged that
3DCFS filed two unopposed requests for judicial notice of
the dependency court documents reflecting developments in the
case while this appeal was pending. We granted the first request
and now grant the second request as well.
4A section 342 subsequent petition applies to a child who is
already a dependent when there are “new facts or circumstances,
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J. was medically examined on January 24 and found to have a
linear bruise on his back, which was “not consistent with
explanations of the manner in which the child sustained the
injuries,” and “would not ordinarily occur except as the result of
deliberate, unreasonable and neglectful acts” by the parents.
At the detention hearing on February 5, 2020, the court
removed J. from the custody of his parents and ordered him
placed into shelter care. The court further ordered monitored
visitation for both parents.
On February 26, 2020, DCFS filed a supplemental petition
for a more restrictive placement under section 387.5 The petition
added count s-1, alleging that the previous disposition was not
effective, as mother and father “continued to establish a
detrimental and endangering home environment” for J. by
continuing to accuse each other of abuse and neglect, including
blaming each other for the latest marks found on J.’s back.
DCFS filed a jurisdiction/disposition report on February 27,
2020. J. told the CSW that father scratched him on his back and
he did not know why and did not feel it happen. J. also said that
when mother saw the scratches, she told J. that “they were going
to take me away from her and my dad,” and that father had
scratched J. “because he wants my mom to go to jail.” DCFS
concluded it was unlikely that father deliberately injured J. as
other than those under which the original petition was
sustained,” that brings the child within a category of section 300.
5When a dependent child remains in the care of a parent,
DCFS may file a supplemental petition under section 387 seeking
an order changing or modifying a previous order by removing the
child from the physical custody of the parent. The petition must
establish that the previous disposition has not been effective in
the rehabilitation or protection of the child. (§ 387, subd. (b).)
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alleged, but that it could not determine who caused the marks on
J.’s back or when it occurred. DCFS recommended dismissal of
counts a-1 and b-1. DCFS further concluded that the parents
“have not benefitted from any services and continue to blame one
another for causing harm to the child,” and that it was “clear that
the child continues to be manipulated and his emotional
wellbeing is being jeopardized by this parents.” Thus, DCFS
recommended the court sustain count s-1.
At the adjudication and disposition hearing on August 20,
2020, the court dismissed the section 342 petition, including
counts a-1 and b-1. The court sustained the allegations in count
s-1 of the section 387 petition as to both mother and father,
finding that jurisdiction over J. remained necessary under section
300, subdivision (b)(1). The court also found removal from
mother and father was necessary and ordered monitored
visitation for both parents.
DISCUSSION
Father appeals from the court’s July 24, 2019 order
sustaining the jurisdictional allegations regarding his conduct in
count b-3 of the amended petition under section 300, subdivision
(b)(1), as well as the court’s original dispositional order granting
mother primary custody. He does not challenge the assertion of
jurisdiction based on mother’s conduct, and mother has not
appealed. As such, father acknowledges that the court’s
jurisdictional orders will not be reversed regardless of the
outcome of this appeal. “[A] jurisdictional finding good against
one parent is good against both” because dependency jurisdiction
attaches to the child, not the parents. (In re Alysha S. (1996) 51
Cal. App. 4th 393, 397.) In addition, in his reply brief, father
conceded that his challenge to the dispositional order was
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rendered moot after the court detained J. from both parents
based on new allegations in February 2020.
Given this procedural posture, we requested further
briefing from the parties regarding whether father’s appeal was
justiciable. In his response, father urges us to exercise our
discretion to review the original sustained jurisdictional
allegations against him. DCFS argues that father’s appeal is not
justiciable and should be dismissed.
Under the doctrine of justiciability, courts generally do not
act upon or decide moot questions or abstract propositions, nor do
they issue advisory opinions. (In re I.A. (2011) 201 Cal. App. 4th
1484, 1491 (I.A.).) “An important requirement for justiciability is
the availability of ‘effective’ relief—that is, the prospect of a
remedy that can have a practical, tangible impact on the parties’
conduct or legal status.” (Id. at p. 1490.) “For this reason, an
appellate court may decline to address the evidentiary support
for any remaining jurisdictional findings once a single finding has
been found to be supported by the evidence,” or is unchallenged.
(Id. at p. 1492.)
On the other hand, we have recognized an exception to this
general rule: “[W]e generally will exercise our discretion and
reach the merits of a challenge to any jurisdictional finding when
the finding (1) serves as a basis for the dispositional orders that
are also challenged on appeal [citation]; (2) could be prejudicial to
the appellant or could potentially impact the current or future
dependency proceedings [citation]; or (3) ‘could have other
consequences for the [the appellant], beyond jurisdiction’
[citation].” (In re Drake M. (2012) 211 Cal. App. 4th 754, 762, 763
(Drake M.).)
9
Here, the jurisdictional findings at issue no longer serve as
the basis for any challenged dispositional orders, as father has
conceded that his challenge to disposition is now moot. However,
father argues that we should reach the merits of his jurisdictional
challenge, citing the potential implications between being found
“an ‘offending’ parent versus a ‘non-offending’ parent.” (Drake
M., supra, 211 Cal.App.4th at p. 763.) He contends that the
jurisdictional findings against him “have and will continue to
prejudicially affect him in the instant dependency proceeding.”
We are not persuaded. The cases cited by father do not
evaluate justiciability in situations where, as here, the court has
sustained a subsequent petition based on new conduct. (See
Drake M., supra, 211 Cal.App.4th at pp. 762-763 [challenge by
one parent to original allegations]; In re M.W. (2015) 238
Cal. App. 4th 1444, 1452 [exercising jurisdiction over mother’s
partial challenge to the jurisdictional findings because of the
“pernicious” nature of those findings, including that mother failed
to protect the children from a risk of sexual abuse].) Here,
regardless of the sufficiency of the evidence supporting the
original petition, the court sustained a supplemental section 387
petition based on new conduct by both parents, and removed J.
from their custody. As such, father’s vague assertions that the
original jurisdictional findings regarding father’s conduct could
impact possible future dependency proceedings involving J. are
insufficient to establish prejudice. (See In re A.B. (2014) 225
Cal. App. 4th 1358, 1364 [“so long as the jurisdictional finding
under the subsequent petition is supported by substantial
evidence, reversal of the jurisdictional finding under the original
petition would be futile”].)
10
Under these circumstances, “the issues Father’s appeal
raises are ‘“abstract or academic questions of law”’ [citation],
since we cannot render any relief to Father that would have a
practical, tangible impact on his position in the dependency
proceeding. Even if we found no adequate evidentiary support for
the juvenile court’s findings with respect to his conduct, we would
not reverse the court’s jurisdictional and dispositional orders nor
vacate the court’s assertion of personal jurisdiction over his
parental rights.” (I.A., supra, 201 Cal.App.4th at p. 1492.) Thus,
we decline to address the substance of father’s challenge to the
court’s jurisdictional findings. We also dismiss the cross-appeal
by DCFS as moot.
DISPOSITION
Father’s appeal and DCFS’s cross-appeal are dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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