In re Emily G. CA2/7 ( 2020 )

Filed 11/19/20 In re Emily G. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re EMILY G. et. al., Persons B302633
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP06022)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
VANESSA G. et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig S. Barnes, Judge. Affirmed in part;
reversed in part and remanded with directions; dismissed in part.
Donna P. Chirco, under appointment by the Court of
Appeal, for Defendant and Appellant Vanessa G.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant Fernando G.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
__________________________
Vanessa G. (Mother) and Fernando G. (Father) appeal from
the juvenile court’s jurisdiction findings and disposition orders
declaring 17-year-old Emily G., 11-year-old Isabelle G., and six-
year-old Nora G. dependents of the juvenile court under Welfare
and Institutions Code1 section 300, subdivisions (b)(1), (d), and
(j). The court sustained the allegations Father sexually abused
his then-14-year-old stepdaughter Emily, and Mother failed to
protect the children from her single incident of domestic violence
against Father. With respect to Father’s and Mother’s appeals as
to Isabella and Nora, we affirm the jurisdiction findings as to
Father’s sexual abuse under section 300, subdivisions (d) and (j),
but we reverse the jurisdiction findings under subdivision (b)(1)
as to Father’s sexual abuse and Mother’s domestic violence.
Because we reverse a portion of the jurisdiction findings on which
the disposition orders were based, we remand for the juvenile
court to conduct a new disposition hearing to determine whether
Mother should participate in sexual abuse awareness and
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2
domestic violence counseling. We dismiss Mother’s appeal as to
Emily as moot because the juvenile court terminated jurisdiction
after Emily turned 18 years old.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral and Investigation
On September 5, 2019 the Los Angeles County Department
of Children and Family Services (Department) received a referral
alleging Father had sexually molested Emily three years earlier.
Emily told the investigating social worker she had been attending
individual therapy for three years for school-related stress and
depression, but she did not disclose the sexual abuse until
recently. The three sexual abuse incidents occurred the summer
after she completed ninth grade. Father inappropriately touched
Emily’s breasts under her clothing, rubbed her inner thighs, and
kissed her on the lips in a sexual manner on separate occasions.
Emily said, “I didn’t say or do anything. I was shocked. I felt
bad. I didn’t tell anyone because I didn’t want to tell on my dad.”
Emily denied she was lying, stating, “Everything I told you is the
truth. It really happened. I wish it didn’t happen. I have
nightmares that he will do it again to me. I also have nightmares
that he will do something to my sisters.” The social worker
observed Emily was visibly nervous, anxious, and upset with
tears running down her face while she spoke about the sexual
abuse.
Emily reported that the prior weekend she had spent time
with her maternal grandmother Martha G., who disclosed she
had been sexually abused as a child. Emily believed Mother also
had been sexually abused, but Emily did not remember the
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details. Emily did not observe any domestic violence between
Mother and Father. However, Emily was happy Mother planned
to end her relationship with Father because Emily felt stressed
by their arguments and was afraid of Father due to the prior
sexual abuse incidents. Emily stated, “I don’t want them back
together because of what happened and what he did to me. I feel
confused because I know what happened, but I also know it
shouldn’t have happened. He’s supposed to be my dad. I’m
scared because I don’t know if my mom believes him or me.” She
did not report the sexual abuse to her family because she “never
felt close to my family until recently.” Emily was conflicted about
whether Father should be punished for the sexual abuse because
she considered him her father. She did not have a good
relationship with her biological father, Andre A., and her last
contact with him was one or two years earlier.
Mother stated she had been in a relationship with Father
for approximately 13 years. Mother and Father had been arguing
over their finances and issues of infidelity. Mother thought about
ending their relationship because of the arguments. Mother
reported Emily’s therapist, Corina Monster, informed her on
September 5 of Emily’s disclosure of Father’s sexual abuse.
Mother was shocked because Emily did not tell her, and Mother
never saw Father being inappropriate with any of the children.
Mother confronted Father, who denied the allegations. Mother
said, “My daughter is my first priority. If she said it happened[,]
then I believe it happened.” Mother said she would support
Emily and ensure Emily knew Mother believed her. Mother
reported she too had been sexually abused when she was 12 or 13
years old by her stepfather, who inappropriately kissed her and
4
fondled her breasts. She also was sexually abused by her
maternal step-cousin when she was 15 or 16 years old.
After Mother learned about the sexual abuse, she asked
maternal grandmother to pick up the children after school. Since
then, Mother and the children stayed with maternal
grandmother in West Covina. Mother signed a safety plan with
the social worker that provided, “Mother agrees to monitor
[F]ather’s visits and phone calls with Isabelle and Nora. Mother
agrees that there will be no contact between Emily and [Father].
Mother agrees to be protective toward all of the children.”
Ms. Monster stated she had been Emily’s therapist for
approximately a year; however, Emily had been enrolled in
therapy for more than two years. Emily was taking psychotropic
medication for her depression and attending therapy twice a
week. Emily told Ms. Monster she believed the medication would
help her forget about the sexual abuse. Ms. Monster reported
Emily’s sexual abuse allegations to Mother, who was angry,
upset, and “shocked” by the allegations. Mother told Ms. Monster
she noticed a change in Emily’s behavior approximately three
years earlier, when the sexual abuse had occurred.
Maternal grandmother stated she believed Emily was
telling the truth about Father’s sexual abuse. She explained, “I
believe [Emily]. She’s not the type who would lie about
something like this. I don’t want anything else to happen to
these kids.” She reported Emily had never lied or been
manipulative like other children her age.
Father denied he inappropriately touched or kissed Emily.
When asked if Father knew why Emily would report the sexual
abuse allegations if they were not true, Father replied, “Maybe
because me and their mom have been arguing a lot lately.”
5
According to Father, Emily told him that she thought he and
Mother should not be together because of their frequent
arguments. Father denied hitting Mother. But he reported that
three weeks earlier Mother had punched him in the face with a
closed fist when the children were not present. He did not suffer
any mark or bruise.
Eleven-year-old Isabelle was in the sixth grade. She was
attending therapy for anxiety. Isabelle reported she got along
well with her sisters although there was some sibling rivalry.
She denied witnessing any domestic violence between Mother or
Father. Isabelle also denied anyone had ever inappropriately
touched her. If anyone did, she would tell the person to stop and
report the incident to Mother. Isabelle stated Mother and Father
occasionally argued, but the arguments did not negatively affect
her. But maternal grandmother, who was present during the
interview at Isabelle’s request, later reported Isabelle often
complained to her that her parents argued too much.
Six-year-old Nora was in the first grade. Nora reported
Father had “smacked her face” and hit her hand with a belt as
discipline. She did not have any marks or bruises. Nora reported
Mother and Father “argue a lot of times,” but they tell her to
leave the room when they are arguing. Nora did not observe any
domestic violence between Mother and Father. She felt safe at
home but feared her parents would end their relationship
because of their arguing. Nora wished her parents would stop
yelling at her and arguing with each other. She wished “every
day is daddy day.” She denied anyone had ever inappropriately
touched her.
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B. The Petition and Detention
On September 17, 2019 the Department filed a petition on
behalf of the children alleging Father physically abused Nora by
striking her face and striking her hands with a belt; Mother and
Father engaged in a violent altercation in which Mother struck
Father’s face with her fist; and Father sexually abused Emily by
fondling her breasts and thighs and kissing her. The petition
alleged Father’s sexual abuse of Emily endangered Emily and
placed her and her siblings Isabelle and Nora at risk of physical
harm and sexual abuse.
At the September 18, 2019 detention hearing, the juvenile
court detained Isabelle and Nora from Father and released all
three children to Mother with family maintenance services. The
court ordered Father to have no contact with Emily. The court
granted Father monitored visits with Isabelle and Nora for a
minimum of six hours per week with a monitor other than
Mother.
C. The Jurisdiction and Disposition Report
As of the October 31, 2019 jurisdiction and disposition
report, the children remained in Mother’s care. Mother and the
children were living with the maternal grandfather and planned
to stay there until Mother could find another home. Mother had
no plans to reconcile with Father, but she was willing to work on
coparenting Isabelle and Nora with him. The dependency
investigator did not interview Emily, Isabelle, or Nora because
the juvenile court prohibited any discussions with the children
about the allegations in the petition.
The dependency investigator found insufficient evidence
Father physically abused Nora or the other children. As to the
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domestic violence allegations, Mother and Father stated they
frequently argued after they purchased their house with the
paternal grandparents, and they had problems with the paternal
grandfather, who lived with them. During one argument in mid-
September 2019, Father brought up that Mother had cheated on
him early in their relationship. Mother stated, “He recently
brought it up and wouldn’t let it go. I told him to leave me alone
and I punched him on the face.” Father reported Mother got
upset and punched his cheek during an argument, but “it wasn’t
that bad, it was more out of frustration.” Mother said Father did
not hit her back, and it was an isolated incident. According to
Father, the incident occurred while the children were at school.
Mother admitted the children witnessed some of her arguments
with Father, but she added, “[T]hey were mostly at school. If we
argue when they were home, Emily would put the kids in the
room.”
Mother reiterated she “was in complete shock” when
Emily’s therapist told her Emily had been inappropriately
touched by Father on three separate occasions during the
summer after ninth grade. She believed Emily and wished Emily
had told her sooner. Father denied the abuse and said he had a
“great” relationship with Emily. He felt “destroyed” and “couldn’t
get out of bed” when he heard about Emily’s allegations. Father
stated, “Honestly, I think it’s just the fighting [between Mother
and Father]. [Emily] remembers a lot of what that [Mother’s
former boyfriend] did to her mom, choking and hitting her, that
she didn’t want it to happen, again.”
The investigating detective stated criminal charges would
not likely be filed against Father because Emily was not
consistent and provided “no details or timeline as to when the
8
abuse happened.” The detective added, “It’s more of a ‘he said,
she said’ type of situation and her statements were extremely
vague. She . . . said it only happened once and she couldn’t
describe it. I can’t tell you if it happened or not.”
The dependency investigator recommended the juvenile
court sustain the domestic violence and sexual abuse allegations,
explaining, “[T]he children all stated that the parents argue on a
regular basis and even though Emily would protect her younger
siblings by taking them to their bedroom, the children appear to
have been affected by the ongoing arguments as both Emily and
Isabelle were enrolled in mental health services. . . . [¶] The
parents stated that when the mother punched [Father] in the
face, it was an isolated incident. However, in the past the mother
had pushed [Emily’s] father and the probability of the current
domestic violence escalating . . . is high.”2 The dependency
investigator stated as to the sexual abuse allegations Mother was
protective of Emily, but Father continued to deny he
inappropriately touched or kissed Emily.
D. The Jurisdiction and Disposition Hearing
At the November 14, 2019 jurisdiction and disposition
hearing, Emily testified Father molested her two times during
the summer after ninth grade three years earlier. On one
2 Emily’s father told the dependency investigator that when
he decided to leave Mother after a year of marriage, she pushed
him into traffic on the street. He did not call the police, but they
later divorced. Although Emily’s father did not provide a time
frame, the incident must have occurred at least 13 years earlier
because Mother was with Father for 13 years.
9
occasion, Father touched her inappropriately first in his bedroom,
then in her bedroom. On a later occasion he kissed her on the
lips while they were in the backyard talking and “hang[ing] out.”
As Emily described the kissing incident, the judge observed she
was emotional and crying. When asked on cross-examination
whether she had ever said she was abused three times, Emily
responded that Father had touched her “a few times,” and then
he kissed her on the lips. She added, “So . . . does that count?”
Emily had been in therapy since ninth grade for issues
unrelated to Father’s abuse. Ms. Monster was her third
therapist. When asked why she did not tell her first two
therapists of the sexual abuse, Emily answered, “I wasn’t ready.
I still thought of him as my dad.” Emily added she did not feel
comfortable disclosing the abuse to the first two therapists,
pointing out the first therapist was a man.3 She finally felt
comfortable disclosing the abuse after she thought Mother and
Father were going to break up because “[i]f [they] didn’t live with
him, it would be easier to say something.” She admitted Mother
and Father had a big argument the weekend before she disclosed
the abuse. When Mother said they were going to break up, she
“was kind of relieved.” But she denied making up the abuse to
break up the parents’ relationship.
After Emily’s testimony and arguments by the attorneys,
the juvenile court dismissed the allegations under section 300,
subdivision (a)(1), that Father physically abused Nora and that
Mother’s domestic violence placed the children at risk of serious
physical harm. But the court followed the recommendation of the
3 On cross-examination, Emily acknowledged she saw the
male therapist before the sexual abuse occurred.
10
Department and minors’ counsel to sustain the sexual abuse
allegations under section 300, subdivisions (b)(1), (d), and (j). As
to the allegation under section 300, subdivision (j), the court
stated, “I understand the other children are [Father’s] biological
children and may be viewed differently. However, what Emily
has described occurred in the home. The behavior is brazen but
also done surreptitiously. [¶] And that kind of conduct, that’s
below the radar but brazen in its attempts to sexually make
contact with Emily puts the other two siblings at risk and . . . I
think the severity of what’s described by Emily is sufficient for
this court to find that the siblings would be at risk.”
The juvenile court also sustained the allegation under
section 300, subdivision (b)(1), that Mother and Father failed to
protect the children from a violent altercation in which Mother
struck Father. The court stated, “It’s not clear that anyone was
in the zone of danger. But what [the Department’s attorney]
described is accurate, which is a building of tension and acrimony
between [M]other and [F]ather and that eventually erupted into
physical violence. And [it’s] unclear just how [far] Father’s
physical violence has gone, but the evidence seems pretty well in
support of a (b)(3) count.”
The juvenile court declared the children dependents of the
court under section 300, subdivisions (b)(1), (d), and (j). The court
placed the children with Mother and removed Isabelle and Nora
from Father’s physical custody. The court ordered Mother to
attend sexual abuse awareness counseling and individual
counseling to address case issues including domestic violence.
The court also ordered the children to participate in individual
counseling to address sex abuse and case issues. The court
ordered Father to attend sex abuse counseling for perpetrators
11
and individual counseling to address case issues. The court
granted Father monitored visits with Isabelle and Nora for a
minimum of six hours per week with the Department having
discretion to liberalize visitation.
Mother and Father timely appealed.
DISCUSSION
A. Governing Law
“Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child if the ‘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 . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
illness, developmental disability, or substance abuse.’” (In re
L.W. (2019) 32 Cal. App. 5th 840, 848; accord, In re E.E. (2020)
49 Cal. App. 5th 195, 205.) Section 300, subdivision (b)(1),
requires the Department to demonstrate three elements by a
preponderance of the evidence: (1) the parent’s or guardian’s
neglectful conduct or failure or inability to protect the child, (2)
causation, and (3) serious physical harm or illness or a
substantial risk of such harm or illness. (E.E., at p. 205; In re
Joaquin C. (2017) 15 Cal. App. 5th 537, 561.)
Under Section 300, subdivision (d), a child comes within the
juvenile court’s jurisdiction if “[t]he child has been sexually
abused, or there is a substantial risk that the child will be
sexually abused, as defined in Section 11165.1 of the Penal Code,
by his or her parent . . . or a member of his or her household, or
12
the parent . . . has failed to adequately protect the child from
sexual abuse when the parent . . . knew or reasonably should
have known that the child was in danger of sexual abuse.” (See
In re D.C. (2015) 243 Cal. App. 4th 41, 51.) Under Penal Code
section 11165.1, subdivision (b)(4), “sexual assault” includes
“[t]he intentional touching of the genitals or intimate parts,
including the breasts, genital area, groin, inner thighs, and
buttocks, or the clothing covering them, of a child, or of the
perpetrator by a child, for purposes of sexual arousal or
gratification . . . .”
Section 300, “[s]ubdivision (j) applies if (1) the child’s
sibling has been abused or neglected as defined in specified other
subdivisions and (2) there is a substantial risk that the child will
be abused or neglected as defined in those subdivisions.” (In re
I.J. (2013) 56 Cal. 4th 766, 774; accord, In re D.B. (2018)
26 Cal. App. 5th 320, 327-328.) “‘The broad language of
subdivision (j) clearly indicates that the trial court is to consider
the totality of the circumstances of the child and his or her
sibling in determining whether the child is at substantial risk of
harm, within the meaning of any of the subdivisions enumerated
in subdivision (j). The provision thus accords the trial court
greater latitude to exercise jurisdiction as to a child whose sibling
has been found to have been abused than the court would have in
the absence of that circumstance.’” (I.J., at p. 774; accord, In re
Francisco D. (2014) 230 Cal. App. 4th 73, 81.) “[T]he more severe
the type of sibling abuse, the lower the required probability of the
child’s experiencing such abuse to conclude the child is at a
substantial risk of abuse or neglect under section 300.” (I.J., at
p. 778; accord, In re S.R. (2020) 48 Cal. App. 5th 204, 207.)
13
“The court need not wait until a child is seriously abused or
injured to assume jurisdiction and take steps necessary to protect
the child.” (In re N.M. (2011) 197 Cal. App. 4th 159, 165; accord,
In re Kadence P. (2015) 241 Cal. App. 4th 1376, 1383.)
B. Standard of Review
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’” (In re
I.J., supra, 56 Cal.4th at p. 773; accord, In re R.T. (2017)
3 Cal. 5th 622, 633; In re D.B. (2018) 26 Cal. App. 5th 320, 328
[“We review the entire record to determine whether the trial
court’s jurisdictional and dispositional findings are supported by
substantial evidence.”].) “Substantial evidence is not
synonymous with any evidence. [Citation.] To be substantial,
the evidence must be of ponderable legal significance and must be
reasonable in nature, credible, and of solid value.” (In re M.S.
(2019) 41 Cal. App. 5th 568, 580; accord, In re J.A. (2020)
47 Cal. App. 5th 1036, 1046.) “The appellant has the burden of
showing there is no evidence of a sufficiently substantial nature
to support the findings or orders.” (In re E.E., supra,
49 Cal.App.5th at p. 206; accord, D.B., at pp. 328-329.)
14
C. Substantial Evidence Supports the Jurisdiction Finding of
Sexual Abuse Under Section 300, Subdivisions (d) and (j),
But Not Subdivision (b)(1)
Mother and Father contend there is insufficient evidence to
support the juvenile court’s jurisdiction findings under section
300, subdivisions (b)(1), (d), and (j).4 Substantial evidence
supports the juvenile court’s jurisdiction findings under section
300, subdivisions (d) and (j), based on Father’s sexual abuse of
Emily. But we agree substantial evidence does not support the
juvenile court’s jurisdiction findings of failure to protect under
section 300, subdivision (b)(1).
Father argues Emily’s statements were inconsistent and
lacked a timeline or supporting details. He notes Emily initially
disclosed to her therapist that Father molested her on three
separate occasions, but she later told the investigating detective
the abuse only happened once and she could not describe it.
Then at the jurisdiction and disposition hearing, Emily testified
Father molested her on two occasions. In addition, Emily
testified she did not want to disclose the sexual abuse incidents to
her first therapist because he was male, but on cross-examination
she acknowledged she saw the male therapist before the alleged
4 The juvenile court terminated jurisdiction over Emily in
March 2020 after she turned 18 years old. Mother’s appeal as to
Emily is moot because we cannot provide effective relief now that
the court has terminated jurisdiction over Emily. (In re David B.
(2017) 12 Cal. App. 5th 633, 652 [“Since David B. cannot be the
subject of new dependency proceedings, any ruling we might
make could not affect future proceedings involving him.”]; In re
N.S. (2016) 245 Cal. App. 4th 53, 61.)
15
sexual abuse occurred. Father also asserts Emily’s allegations
that Father kissed her on the lips and touched her breasts mirror
the details Mother recounted of her own sexual abuse by her
stepfather when Mother was 12 or 13 years old. Father suggests
Emily fabricated the allegations to cause Mother and Father to
end their relationship.
Father ignores the juvenile court’s finding that Emily’s
testimony was credible and reliable. As discussed, we do not
reweigh the evidence on appeal, instead determining whether
there are sufficient facts to support the court’s findings. (In re
R.T., supra, 3 Cal.5th at p. 633; In re I.J., supra, 56 Cal.4th at
p. 773.) Although there were some inconsistencies in Emily’s
recounting of the sexual abuse, she repeatedly referred to Father
touching her breasts and kissing her in a sexual manner; she
provided a time frame (the summer after ninth grade); and she
indicated the location of each instance of abuse (Father’s
bedroom, her bedroom, and the backyard).
As the juvenile court explained, “I know the point of
[Father’s] contention had been that Emily had manufactured this
story simply as a vehicle to stop the fighting at home and that
she was seeing this moment as a chance to convince Mother to
break from the relationship with her stepfather. That theory
falls. [¶] If you look closely [at] what Emily was saying, . . . she
doesn’t want her stepfather harmed. She doesn’t want him to
suffer. She doesn’t see this as a vehicle to have them go separate
ways. What she’s described is a secret she kept bottled up in her,
and her explanation doesn’t fit exactly into a timeline. But these
things often don’t. Recollections become frayed as time goes by,
and certain traumatic events may cause certain discrepancies
that might cause them to be off by a day or a month. [¶] But
16
what she described under oath was compelling, and I had a
chance to ask questions of her, as well. And I asked her
pointblank: Would you manufacture this? [¶] And she said: No
I would not. [¶] Her character has been supported by Mother
and maternal grandmother. And, in fact, [Emily’s] father offered
his thoughts, as well. And putting aside whatever biases he may
have, I think the totality of the evidence supports Emily’s
rendition of facts. [¶] She did indicate why she started therapy.
She was forthcoming . . . of the stresses she had there. She
became emotional when asked specifically but not in a way that
would lead one to believe she’s being evasive. [¶] She does speak
in a forthright manner about the abuse but does not want to
seem to exaggerate or overly dramatize the facts when there
would be every opportunity to do so. . . . In fact, it was rather
understated, which, I think, furthers the sense that she is . . . a
highly credible witness.”
Further, Father’s abuse of Emily placed Isabella and Nora
at risk of sexual abuse. “Cases overwhelmingly hold that sexual
abuse of one child may constitute substantial evidence of a risk to
another child in the household—even to a sibling of a different
sex or age or to a half sibling.” (Los Angeles County Dept. of
Children & Family Services v. Superior Court (2013)
215 Cal. App. 4th 962, 968, 970 (Los Angeles County); accord, In re
I.J., supra, 56 Cal.4th at pp. 770, 780 [father’s sexual abuse of his
daughter provided substantial evidence to support jurisdiction
over his three sons]; In re Ricky T. (2013) 214 Cal. App. 4th 515,
517 [grandfather’s sexual abuse of his nine- and 12-year-old
stepgranddaughters supported jurisdiction over three-year-old
grandson].) Isabelle—who was 11 years old—was at substantial
risk of sexual abuse because she was approaching the age when
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Emily was abused by Father. (Los Angeles County, at p. 970 [10-
year-old girl at substantial risk of sexual abuse by father where
he sexually abused her older half sister beginning when the half
sister was seven or eight years old].) Although Nora was only six
years old, Father’s sexual abuse of her then-14-year-old half
sister also placed Nora at risk of serious harm from Father’s
aberrant sexual behavior.
Mother does not deny Father sexually abused Emily but
argues the children were not at substantial risk of harm because
Mother was no longer living with Father and did not intend to
reconcile with him. Also, she immediately made a safety plan to
protect the children and support Emily after Emily disclosed the
sexual abuse. But Mother acknowledged she intended to
coparent Isabella and Nora with Father, and without juvenile
court supervision, Isabelle and Nora were at substantial risk of
harm because they would be spending time alone with Father.
(See Los Angeles County, supra, 215 Cal.App.4th at p. 970
[“Currently, father is not living with mother. This places [the
child] at greater risk without juvenile court jurisdiction because,
absent juvenile court supervision, [the child] could be spending
time alone with father away from mother’s home, thereby
providing greater opportunity for sexual abuse.”].)
However, we agree with Father and Mother there is no
evidence to support the jurisdiction finding under section 300,
subdivision (b)(1), that they failed to protect the children from
Father’s sexual abuse. Father’s sexual abuse of Emily and the
substantial risk of harm to Isabelle and Nora are based on his
intentional conduct, not his failure or inability to protect the
children. Thus, the jurisdiction finding as to Father under
section 300, subdivision (b)(1), lacks evidentiary support.
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As to Mother, there is no allegation Mother was unable or
failed to protect the children from Father’s misconduct. Upon
learning of Father’s sexual abuse, Mother immediately
implemented a safety plan by having the maternal grandmother
pick up the children from school that day, moving out of the home
with the children, preventing Father from having contact with
Emily, and monitoring Father’s contact with Isabelle and Nora.
Under these circumstances, the juvenile court erred in sustaining
the allegations that Mother failed to protect the children from
Father’s sexual abuse.
D. The Jurisdiction Finding Based on Domestic Violence Is
Not Supported by Substantial Evidence
Mother contends the jurisdiction finding based on her
domestic violence against Father is not supported by substantial
evidence.5 We agree. “Physical violence between a child’s
5 “‘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
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 I.J., supra, 56 Cal.4th at p. 773; accord, In re M.R. (2017)
7 Cal. App. 5th 886, 896.) An appeal is not justiciable where “no
effective relief could be granted . . . , as jurisdiction would be
established regardless of the appellate court’s conclusions with
respect to any such [challenged] jurisdictional grounds.” (In re
Madison S. (2017) 15 Cal. App. 5th 308, 329; accord, In re I.A.
19
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 [reversing finding
children were at substantial risk of physical harm where
domestic violence between parents occurred two to seven years
before and there was no evidence of continuing violence]; accord,
In re M.W. (2015) 238 Cal. App. 4th 1444, 1453 [single incident of
domestic violence seven years before hearing with no evidence of
subsequent altercations did not support jurisdiction finding]; cf.
In re T.V. (2013) 217 Cal. App. 4th 126, 135 [sufficient evidence of
substantial risk of physical harm to child where parents engaged
in multiple instances of domestic violence and violence was likely
to continue].) Here, there is no evidence the domestic violence
was ongoing, directly harmed the children physically, or placed
them at risk of physical harm.
(2011) 201 Cal. App. 4th 1484, 1490.) Nevertheless, “[c]ourts may
exercise their ‘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 D.P. (2015)
237 Cal. App. 4th 911, 917; accord, Madison S., at p. 329; In re
J.C. (2014) 233 Cal. App. 4th 1, 4.) We exercise our discretion to
consider the jurisdiction finding based on domestic violence
because Mother challenges the disposition order based on the
finding.
20
The juvenile court rightly was concerned about the
escalating verbal arguments that led to Mother punching Father
in the face. But according to Mother and Father, this was an
isolated incident that occurred at home when the children were
at school. Father described the punch as not “that bad,” and it
did not leave a mark or bruise on Father’s face. Emily, Isabelle,
and Nora denied observing any domestic violence between
Mother and Father. Mother admitted the children witnessed
some of her arguments with Father, but most of the arguments
occurred when the children were at school, and if the children
were home, Emily would take Isabella and Nora to another room.
Nora likewise stated when her parents argued, they would tell
her to leave the room. Although Mother and Father’s frequent
verbal arguments caused the children emotional and mental
distress, there is no evidence that domestic violence between
Mother and Father endangered the children’s physical health and
safety. “Neither section 300, subdivision (a) nor (b) provides for
jurisdiction based on ‘emotional harm.’” (In re Daisy H., supra,
192 Cal.App.4th at p. 718.)
In addition, Mother and Father were separated with no
intent to reconcile, so the risk of any continuing domestic violence
was diminished. The Department argues Mother and Father’s
separation did not eliminate the risk of physical harm to the
children, relying on In re R.C. (2012) 210 Cal. App. 4th 930, 943-
944. R.C. is distinguishable. There, the parents had separated,
but the violence continued, including an incident in which the
father became upset, grabbed the mother, and pushed her
against his car. (Id. at pp. 937, 942.) Three months later, the
father rushed into the mother’s apartment and slapped her face,
pulled her hair, choked her, pushed her against the wall three
21
times, and threatened to kill her in the presence of their three-
year-old child. (Ibid.) The Court of Appeal affirmed the
jurisdiction finding under section 300, subdivision (b)(1),
concluding the parents’ separation did not diminish the risk of
harm to the children from the father’s domestic violence. (R.C.,
at p. 944.) Here, Mother intended to end her relationship with
Father before Emily disclosed the sexual abuse, and Mother and
the children moved out of the home after Mother learned of the
sexual abuse. Mother and the children planned to stay with the
maternal grandfather until Mother was able to find another
home. And Mother did not intend to reconcile with Father.
Further, unlike R.C., the children did not witness any domestic
violence between Mother and Father, and there is no evidence of
continuing domestic violence (or any contact) after Mother and
Father separated. Under these circumstances, there is
insufficient evidence to support the jurisdiction finding based on
domestic violence.
E. On Remand the Juvenile Court Should Reconsider Its
Disposition Orders as to Mother
At the disposition hearing, the juvenile court ordered
Mother to attend sexual abuse awareness counseling and
individual counseling to address case issues including domestic
violence. Although Mother is now a nonoffending parent, “there
need not be a jurisdictional finding as to the particular parent
upon whom the court imposes a dispositional order.” (In re
Briana V. (2015) 236 Cal. App. 4th 297, 311; accord, In re I.A.
(2011) 201 Cal. App. 4th 1484, 1492 [“A jurisdictional finding
involving the conduct of a particular parent is not necessary for
the court to enter orders binding on that parent, once dependency
22
jurisdiction has been established”].) However, we remand for the
juvenile court to consider the disposition orders as to Mother in
light of our reversal of the findings she failed to protect Isabelle
and Nora from Father’s sexual abuse and of Mother’s domestic
violence committed against Father.
DISPOSITION
With respect to Isabelle and Nora, the jurisdiction findings
under section 300, subdivisions (d) and (j), are affirmed, but the
jurisdiction findings under section 300, subdivision (b)(1), as to
sexual abuse and domestic violence are reversed. We remand for
the juvenile court to conduct a new disposition hearing to
determine whether Mother should participate in sexual abuse
awareness and domestic violence counseling. We dismiss
Mother’s appeal as to Emily as moot.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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