In re Iris D. CA2/1 ( 2020 )

Filed 11/18/20 In re Iris D. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re IRIS D., et. al., B305090
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 19CCJP07097)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARIA F.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Peter R. Navarro, Judge. Reversed in part and
affirmed in part.
Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Aileen Wong, Deputy County Counsel, for
Plaintiff and Respondent.
________________________
Maria F. (Mother) appeals from the juvenile court’s
February 11, 2020, jurisdictional and dispositional orders
concerning her four children. Mother does not contest the
assertion of jurisdiction as a result of the conduct of the youngest
child’s father. She contends, however, that as to her, substantial
evidence does not support the juvenile court’s jurisdictional
findings under Welfare and Institutions Code section 300,
subdivisions (a) and (b).1 She further argues the dispositional
orders requiring her to participate in classes and counseling are
unnecessary and should be reversed. We reverse the juvenile
court’s jurisdictional findings as to Mother, but affirm the
dispositional orders.
FACTUAL AND PROCEDURAL BACKGROUND
The minors at issue in this appeal are Iris (12 years old),
Ivan (11 years old), Ishmael (nine years old), and Tamia (eight
months old).2 Tamon D., the father of the three older children, is
a non-offending parent in this matter. Timothy J. is Tamia’s
1All unspecified statutory references are to the Welfare
and Institutions Code.
2 These were the children’s ages at the time of the
jurisdictional and dispositional hearing.
2
father (Father). As we describe below, Father’s domestic violence
against Mother forms the primary basis for the juvenile court’s
jurisdictional and dispositional orders. Father does not appeal
these orders.
A. Incidents of Abuse Between Mother and Father
At the time of the jurisdictional hearing, Mother and
Father were married. Their relationship developed while Father
was in prison for kidnapping. Almost immediately after Father’s
release from prison in October 2018, Father moved in with
Mother and became physically abusive towards her.
On January 27, 2019, Mother was pregnant with Tamia.
According to Mother, she and Father began to argue in their
bedroom. Father hit Mother on the side of the head and pinched
her. She felt dizzy, grabbed a broom to defend herself, and tried
to leave their bedroom. When Father blocked her way, Mother
struck him in the head with the broom and broke the wooden
handle. Iris, Ivan, and Ishmael were in a separate room when
this incident occurred. Iris entered the bedroom when she heard
the commotion and tried to intervene. Mother reported the
incident to law enforcement.
Following this incident, Father no longer lived at Mother’s
residence. According to Mother, as a result of the January 27,
2019, incident, Father went to jail for violating his parole terms.
Beginning March 2019, Father’s parole conditions were modified
to prohibit him from contacting her or coming to her residence.
The record does not reflect any incidents of domestic violence
between January 27, 2019 and September 4, 2019. During this
time, Tamia was born.
3
During a two-week period in September 2019, Father
returned to Mother’s apartment on three occasions, during which
he was physically abusive towards her.
On September 6, 2019, at approximately 3:30 a.m., Father
arrived at Mother’s apartment, banged on the front door, and
yelled. Not wanting to wake the neighbors, Mother opened the
door. Mother had allowed Father to come to her residence to
retrieve his belongings. Father loudly demanded his cell phone.
She told him she did not have it and asked him to leave. Before
he left, Father grabbed Mother’s cell phone. She followed him
outside to retrieve it. Father grabbed Mother around her neck
and shoved her into the street. When an unknown passerby
yelled at Father, Father removed himself from Mother, got into
his car, and drove away. Mother ran back inside her apartment
and called law enforcement. A sheriff’s deputy who responded to
the call observed red scratch marks along Mother’s neck and
chest. Mother declined an emergency protective order and stated
she would seek a restraining order from the court.
The deputy asked Mother about a bruise to her left eye.
She responded that on September 4, 2019, Father was at her
residence and had thrown a plastic bottle at her. Later, when
speaking to a social worker for the Department of Children and
Family Services (DCFS), Mother denied the September 4, 2019,
incident had occurred.
On September 17, 2019, Mother heard a knock on her front
door. She did not see anyone and opened her screen door,
presumably to get a better look outside. She saw Father, who
pushed her into the apartment and shouted at her, “Bitch, where
my keys at?” Mother turned to go to her bedroom to call law
enforcement, and Father punched her in the face. Mother’s nose
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began to bleed, and she screamed that she would call the police.
Father ran out of the apartment. The children were home and
asleep during the incident. It is not clear from the record
whether any of the children was present in the room where
Father hit Mother. Mother woke the children and went to the
hospital.
At the hospital, a sheriff’s deputy observed dried blood on
Mother’s nose and bruising and swelling under her left eye.
Mother requested and received an emergency protective order.
On September 18, 2019, Mother sought a domestic violence
restraining order against Father, seeking orders that Father stay
away and not contact her or any of the four children. She also
sought sole custody of their daughter, Tamia, with no visitation
for Father. In her request for the restraining order, Mother
stated that she had made three prior reports to law enforcement
about Father’s abuse; the children witnessed Father punch her;
and Father threatened to have her killed if he returned to prison.
She further explained, “It has been over 16 times [that] he has
hit me but as I was afraid for my life[, I] did not make a report.”3
On September 25, 2019, Father was arrested and placed in
in custody.
A social worker interviewed Mother and the three eldest
children on September 19, 2019, and December 10, 2019. During
the September 19, 2019 interviews, each of the three children
reported they felt safe and well cared for and that Father never
abused them. Iris acknowledged that she witnessed at least a
3 The juvenile court dismissed Mother’s request for a civil
restraining order due to the issuance of a domestic violence
criminal protective order on October 31, 2019.
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portion of the January 2019 incident. Ishmael stated he would
become sad when Father was “mean” to Mother, but was unable
to describe how Father was mean other than “telling [Mother]
stuff.” The social worker observed Tamia, the infant, was
appropriately groomed, appropriate in affect, awake and alert,
did not seem uncomfortable or in pain, and had no marks or
bruises indicative of abuse or neglect.
During the interview on December 10, 2019, Ishmael
reported Father “would hit [him] in the knee.” Ishmael also
stated they were “playing around,” and that Father was not
angry. Nonetheless, Ishmael indicated he was afraid of Father.
On October 31, 2019, a three-year domestic violence
criminal protective order was issued against Father. Among
other things, the protective order prohibits Father from having
contact with Mother or coming within 100 yards of her, except as
authorized by a family, juvenile, or probate court order.
Prior to the jurisdictional and dispositional hearing,
Mother and the children attended counseling through the Victims
of Crime program. By December 11, 2019, Mother had attended
25 counseling sessions out of the 40 sessions authorized by this
program, and Iris had attended 23 sessions. Mother had enrolled
Ishmael and Ivan in counseling as well. Mother also began a 12-
week parenting course on October 29, 2019. By January 29,
2020, Mother completed the course, obtained her certification to
teach the course, and became a course instructor. On
December 19, 2019, Mother also enrolled in additional group
therapy classes for survivors of domestic abuse. As of
February 10, 2020, Mother completed 10 out of 15 of the group
therapy sessions.
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B. Prior History of Abuse Involving Mother and Tamon
Mother and Tamon began dating in 2005, when Mother
was 15 years old. They were in a relationship for seven years.
According to Mother, Tamon sustained a brain injury in 2012,
and his parents have a power of attorney over him.
In 2006, 2007, and 2009, DCFS received referrals of child
abuse and neglect that it determined were unfounded.
Additionally, on November 13, 2007, DCFS received a
referral of domestic violence between Mother and Tamon. As a
result, he moved out, and Mother obtained a restraining order
against him. DCFS determined the allegations were
inconclusive. During a December 10, 2019, interview with a
social worker, Mother acknowledged Tamon had been abusive.
In 2008, DCFS received a referral alleging that Mother and
Tamon had a physical altercation during which Tamon
accidentally hit Iris. DCFS dismissed this referral as
inconclusive.
In September 2012, Iris, Ivan, and Ishmael were in their
godmother’s care. The godmother left the children unsupervised
with Tamon, who had diminished mental capacity. Ivan was
later observed to have marks on his lower back, which both Iris
and Ivan stated were a result of Tamon hitting Ivan with his
hand.
In May 2013, Iris, Ishmael, and Ivan were declared
dependent children of the court under section 300, subdivision
(b), based on a finding that the children’s father, Tamon, was
unable to provide the children with the appropriate parental care
and supervision due to his mental health and medical condition.
In September 2013, the dependency case was terminated.
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In November 2016, DCFS received referrals alleging abuse
by Mother and by Tamon against the three older children. DCFS
terminated the referrals as inconclusive.
C. The Juvenile Court’s Proceedings
On November 1, 2019, DCFS filed a dependency petition
alleging the children came within the juvenile court’s jurisdiction
under section 300, subdivisions (a) and (b)(1). In count a-1,
alleging the children had suffered, or there was a substantial risk
they would suffer, serious physical harm, DCFS charged Father
with committing several acts of physical abuse against Mother,
citing the three incidents in September 2019, as well as other
prior incidents of violence. Count a-1 charged that Mother also
engaged in abuse by hitting Father on the head with a broom in
January 2019 in the presence of the children.
Count b-1 charged that Mother failed to protect the
children by allowing Father to reside in the home and have
unlimited access to the children. Despite the allegations against
Mother, DCFS concluded, “due to [M]other’s filing for a
restraining order on [September 19, 2019] and following the
restraining order until now, DCFS recommends the children
remain in the care of [M]other with [family maintenance] services
in place.”
At the November 4, 2019, detention hearing, the juvenile
court made prima facie detention findings for the three older
children and released them to parental custody. It also ordered
Tamia detained from Father and released to Mother.
In its December 31, 2019, jurisdiction and disposition
report, DCFS confirmed that “[i]t does not appear that the
children—Iris, Ivan, Ishmael and Tamia—are at risk of abuse or
harm while in the care of [M]other, at this time.”
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At the February 11, 2020, jurisdictional and dispositional
hearing, Father advised the juvenile court that he had been
sentenced on January 29, 2020, to four years in state prison, and
he expected to serve 66 percent of that sentence, or almost 32
months.
The juvenile court sustained both counts as pleaded. It
commented that “there’s a serious level of violence that has been
perpetrated by [Father]” involving multiple incidents. The
juvenile court determined the children fell within the court’s
jurisdiction under section 300, subdivisions (a) and (b), declared
the children to be dependents of the juvenile court, and ordered
Mother to participate in a domestic violence victim’s support
group and parenting classes, as well as individual therapy.
Mother filed a timely notice of appeal.
DISCUSSION
A. The Juvenile Court’s Jurisdictional Findings
1. Standard of Review
We review the trial court’s jurisdictional findings for
substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010,
1022.) Under this standard, “ ‘we must uphold the . . .
[jurisdictional] findings unless, after reviewing the entire record
and resolving all conflicts in favor of the respondent and drawing
all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support [them].’ ”
(Ibid.)
“When a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
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supported by substantial evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.”
(In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
In this case, the juvenile court’s assertion of jurisdiction
based on the conduct of Father is not challenged, and there is no
basis to disturb its order on appeal. Nonetheless, as to the court’s
specific findings, “we generally will exercise our discretion and
reach the merits of a challenge to any jurisdictional finding when
the finding (1) serves as the basis for 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 [citations]; or (3) ‘could have other
consequences for [the appellant], beyond jurisdiction’ [citation].”
(In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
Here, Mother has become an instructor of the parenting
courses she completed and hopes to become a licensed foster
parent provider. She contends the juvenile court’s findings
deeming her to be an offending parent will impair her ability to
pursue these vocations. Moreover, a finding that Mother is an
offending parent may have implications with respect to future
dependency proceedings. (See In re Drake M., supra, 211
Cal.App.4th at p. 763.) Thus, although dependency jurisdiction
over the children will remain in place based on the unchallenged
findings concerning Father’s conduct, we review Mother’s appeal
on the merits.
2. Substantial Evidence Does Not Support the Juvenile
Court’s Finding Under Section 300, Subdivision (a) as
to Mother
For a child to come within the jurisdiction of the juvenile
court under section 300, subdivision (a), the court must find “[t]he
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child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm inflicted nonaccidentally upon the
child by the child’s parent or guardian.” (§ 300, subd. (a).)
Substantial risk of serious future physical injury may be
established “based on the manner in which a less serious injury
was inflicted, a history of repeated inflictions of injuries on the
child or the child’s siblings, or a combination of these and other
actions by the parent or guardian that indicate the child is at risk
of serious physical harm.” (Ibid.)
In this case, there was no evidence that either parent
inflicted serious physical harm on the children. Therefore, the
assertion of jurisdiction is premised on a finding that the
domestic violence in the home placed the children at substantial
risk of serious future physical injury.
Mother’s past involvement in incidents of domestic violence
does not support a finding of a current risk of future serious
physical harm to the children. Incidents of domestic violence
between Mother and Tamon are remote in time, occurring
between eight to 13 years prior to the jurisdictional hearing.
Since that time, there have not been any allegations of domestic
violence between them. Further, due to his medical condition,
Tamon is under the care of his parents. Accordingly, future
instances of domestic violence between Mother and Tamon are
extremely unlikely.
Similarly, there was no evidence of a risk that domestic
violence between Mother and Father would continue. In fact, the
evidence was to the contrary. At the time of the jurisdictional
hearing, Father was incarcerated and was expected to serve
another two and one-half years. A three-year criminal protective
order requires him to stay away from Mother and her residence.
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The social worker did not uncover any evidence of physical abuse
of the children, other than Ismael’s comment that Father “would
hit [him] in the knee” while “playing around.” Indeed, DCFS
acknowledged in its December 31, 2019, report that “[i]t does not
appear that the children . . . are at risk of abuse or harm while in
the care of [M]other, at this time.” Any suggestion that Mother
will enter into another abusive relationship is speculative,
especially in light of her participation in parenting programs and
victim therapy.
Furthermore, Mother’s use of a broom to hit Father during
the January 2019, incident is not indicative of a future risk of
harm to the children. This was the only incident documenting
Mother’s use of physical force in altercations involving Father. It
is apparent from the record that she used the broom in a
defensive posture in response to Father’s attack. Father has not
lived with Mother since that incident, rendering the possibility
that she might resort to force to defend herself from Father in the
future improbable.
In summary, the evidence was insufficient to support a
finding that Mother’s involvement in past incidents of domestic
abuse created a current substantial risk of serious physical injury
to the children.
3. Substantial Evidence Does Not Support the Juvenile
Court’s Finding Under Section 300, Subdivision (b) as
to Mother
The juvenile court also sustained jurisdiction over the
children under section 300, subdivision (b)(1), which requires
proof that “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of his or her parent or guardian to
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adequately supervise or protect the child, or the willful or
negligent failure of the child’s parent or guardian to adequately
supervise or protect the child from the conduct of the custodian
with whom the child has been left . . . .” (§ 300, subd. (b)(1).)
The juvenile court’s finding under section 300, subdivision
(b) was based on its finding that Mother failed to protect the
children from instances of domestic violence between Mother and
Father. “Physical violence between a child’s parents may support
the exercise of jurisdiction under section 300, subdivision (b) but
only if there is evidence that the violence is ongoing or likely to
continue and that it directly harmed the child physically or placed
the child at risk of physical harm.” (In re Daisy H. (2011) 192
Cal.App.4th 713, 717, italics added, citing In re Janet T. (2001) 93
Cal.App.4th 377, 391.) “This is so because under subdivision (b)
[of section 300,] a child may be considered dependent ‘only so long
as is necessary’ to protect the child from risk of suffering serious
physical harm or illness.” (In re Janet T., supra, at p. 388.)
As we described above, at the time of the jurisdictional
hearing, there was no evidence that the violence between Mother
and Father was ongoing or likely to continue. Furthermore,
Mother contacted law enforcement during the January 2019
incident, and did not resume living with Father afterward.
Although she allowed him to come to the home on September 6,
2019, it was for the limited purpose of retrieving his belongings.
There is no evidence to indicate she invited Father to come to her
residence on September 4, 2019, or September 17, 2019. She
contacted law enforcement during the September 6 and 17, 2019,
incidents, and after the September 17, 2019, incident she
obtained an emergency protective order and a domestic violence
temporary restraining order. In her petition for a restraining
13
order, she sought orders keeping Father away from all the
children, and ordering no visitation with Tamia. She enrolled
herself and the children in counseling before the jurisdictional
hearing, and had attended 25 counseling sessions as of the date
of the hearing. She took a parenting course and became a course
instructor, and commenced group therapy sessions for survivors
of domestic violence. Based on her proactive pursuit of legal
protection and preventative therapies, as of the date of the
jurisdictional hearing, it is not possible to conclude there was a
substantial risk the children would suffer serious physical harm
as a result of Mother’s failure to protect them. (Cf. In re E.B.
(2010) 184 Cal.App.4th 568, 576 [holding substantial evidence
supported a finding that the mother failed to protect the children
from the father’s domestic abuse where the mother remained in
abusive relationship and returned to the father despite the
abuse], disapproved on another ground in Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1010, fn. 7; In re S.O. (2002) 103
Cal.App.4th 453, 462 [same where the mother allowed the father
to have unsupervised contact with the children close in time to
the jurisdictional hearing and was unsure if she would reunite
with him].) Thus, we reverse the juvenile court’s jurisdictional
findings under section 300, subdivisions (a) and (b)(1) as to
Mother.
B. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Mother to Participate in Classes and
Therapy
Mother also argues that the juvenile court abused its
discretion in ordering her to participate in group therapy,
individual counseling, and parenting classes because she had
already participated in such therapy, counseling, and classes.
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DCFS argues Mother forfeited any appellate challenge to
the dispositional orders as a result of her failure to object to the
orders in the juvenile court. We disagree. After delivering its
factual findings as to jurisdiction, the trial court asked for
arguments relating to disposition. In response, Mother asked the
juvenile court to award her full custody of Tamia and close the
case. Mother argued, in the alternative, that she “has made some
progress in her recommended case plan.” Mother referred to the
exhibits she had provided to the court, which included letters
describing her progress in the parenting courses, group therapy
program, and individual therapy. Mother’s argument may be
fairly characterized as an objection to further counseling and
classes. In any event, we may exercise our discretion to consider
Mother’s challenge on the merits. (People v. Williams (1998) 17
Cal.4th 148, 161-162, fn. 6 [“An appellate court is generally not
prohibited from reaching a question that has not been preserved
for review by a party”].)
“The juvenile court has broad discretion to determine what
would best serve and protect the child’s interests and to fashion a
dispositional order” in accord with this discretion. (In re Baby
Boy H. (1998) 63 Cal.App.4th 470, 474.) Where jurisdiction exists
over the child, the juvenile court may require even a non-
offending parent to participate in educational and counseling
programs that “the court deems necessary and proper.” (§ 362,
subd. (d); In re D.L. (2018) 22 Cal.App.5th 1142, 1148.)
“On appeal, [the juvenile court’s] determination cannot be
reversed absent a clear abuse of discretion.” (In re Baby Boy H.,
supra, 63 Cal.App.4th at p. 474.) A court abuses its discretion
when it makes a determination that is “ ‘ “arbitrary, capricious,
15
or patently absurd.” ’ ” (In re Mark V. (1986) 177 Cal.App.3d 754,
759, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
We conclude the juvenile court did not abuse its discretion
in ordering Mother to attend classes and counseling in addition to
those programs she had already completed. The evidence
revealed a significant degree of abuse perpetrated by Father
before Mother ended contact with him in January 2019. Given
this history, and the fact the children remained in Mother’s care,
it was not unreasonable to require her to participate in additional
counseling and educational services. Furthermore, Mother has
not demonstrated that the courses and counseling in which she
previously participated were also DCFS- or court-approved, that
they are duplicative of the courses and counseling ordered by the
juvenile court, or why participating in such services, even if
duplicative, is unreasonable, arbitrary or capricious.
DISPOSITION
The juvenile court’s jurisdictional findings in counts a-1
and b-1 as to Mother are reversed. In all other respects, the
order is affirmed.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
CHANEY, J. BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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