In re L.M. CA2/4 ( 2023 )

Filed 10/30/23 In re L.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
In re L.M. et al, Persons B320963 consolidated with
Coming Under the Juvenile B322275
Court Law.
(Los Angeles County
Super. Ct. Nos.
22LJJP00125
22LJJP00125A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
A.M. et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Donald A. Buddle, Jr., Judge. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant A.M.
Jacques Alexander Love, under appointment by the
Court of Appeal, for Defendant and Appellant W.M.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
Mother A.M. and father W.M. challenge juvenile court
jurisdiction and disposition orders involving their infant twins, L.
and S. The juvenile court exercised jurisdiction over the twins
under Welfare and Institutions Code section 300, subdivisions (a)
and (b),1 based on findings relating to mother and father’s
domestic violence, mother’s substance abuse and mental health
issues, and father’s failure to protect the children. The juvenile
court removed the children from the parents’ care.
Mother challenges the jurisdiction order, contending
substantial evidence does not support the juvenile court’s ruling
on any grounds. We find that substantial evidence supports
jurisdiction on the basis of domestic violence, and because
jurisdiction over the children can be affirmed on that basis, we do
not address mother’s additional contentions.
Father challenges the disposition order, contending
substantial evidence does not support the juvenile court’s finding
that the children should be removed from father’s custody. We
find that substantial evidence of the parents’ domestic violence
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
supports this order as well. We therefore affirm the juvenile
court’s jurisdiction and disposition orders.
Finally, father challenges the juvenile court’s finding that
the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
(ICWA) did not apply. Father asserts that the Los Angeles
County Department of Children and Family Services (DCFS)
failed to comply with ICWA requirements. The juvenile court has
since ordered DCFS to comply with ICWA, and we therefore find
father’s ICWA contention moot.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
The family came to the attention of DCFS from an
emergency response referral in February 2022 stating that
mother had engaged in domestic violence against father in the
presence of the infant twins, who were born in November 2021.
The reporter stated that father was afraid to report mother’s
domestic violence for fear that the children would be taken away.
The reporter stated that there were “incidents of father having
the children in his arms while mother beats him. Father will put
up his arms to prevent mother from physically harming the
babies. [The reporter] reports that if father were not putting up
his arms, mother would likely be hitting the babies.” The
reporter stated that mother also kicks father while he’s holding
the children, and the babies cry when the violence is occurring.
When children’s social workers (CSWs) went to the family
residence on February 24, 2022 to investigate, mother met them
outside. She told the CSWs that there had been no domestic
violence; she and father only had a verbal argument. Mother’s
mother (maternal grandmother) was present; she also stated that
there had been no domestic violence. Maternal grandmother
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advised mother not to answer questions, stating that everything
she said would be used against her. Maternal grandmother
refused to give her name to the CSWs or answer their questions.
Mother initially resisted allowing the CSWs inside to see
the children, but changed her mind after the CSWs told her they
could get an investigation warrant. The babies appeared healthy
and showed no visible signs of abuse or neglect.
The CSWs observed a bong and cigarettes on the front
steps. Mother admitted she smokes marijuana, and that she had
smoked marijuana that day while she and the children were
outside. Mother also said she had smoked marijuana while she
was pregnant. She agreed to take an on-demand drug test.
Mother stated that father drinks alcohol, but she said he does not
get aggressive or violent when he drinks. Mother denied any
mental health issues.
Mother continued to deny all domestic violence allegations,
including the report that she was violent toward father while he
was holding the children. Mother said she and father recently
got into a verbal argument because she caught him cheating and
kicked him out. According to the detention report, mother said
she “knows not to hit the father because of the risk of her getting
the children removed from her care.” Mother thought neighbors
had called law enforcement because they heard the yelling.
Mother said law enforcement officers had talked to mother and
father, waited for father to leave, and then left. Mother admitted
that she had been arrested for domestic violence with another
man while she and father were “on a break.”
The following day, February 25, the CSW received
information from an anonymous caller that mother was violent
and aggressive, and there was video evidence of abuse involving
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the children. When the CSW asked for more information, the
caller refused to give additional information for fear of retaliation
from mother.
DCFS received dispatch summaries for law enforcement
calls to the home. There had been 10 calls for domestic violence
and yelling at the home between June 2020 and February 2022.
Three of the calls occurred while mother was pregnant, and one
post-dated the children’s birth. In response to a call about
fighting and loud banging on April 12, 2021, law enforcement
stated that mother was “one month preg having withdrawals
from tab.” On October 19, 2021, a caller reported that a male and
female were arguing and the male “is hitting her in the street.
[Female] is pregnant.” Three days later, on October 22, 2021, law
enforcement was called again for “lots of arguing” at the location.
The call post-dating the children’s birth was for the February
2022 argument. The dispatch summaries did not note any
arrests.
On March 1, 2022, DCFS received a report from a caller
stating that while the babies were in mother’s care, mother had
texted, “This is serious I want to hurt myself.” The CSW went to
mother’s home on March 2, but no one answered the door. A
neighbor told the CSW that loud noises and yelling often came
from the home, but he thought the last time he heard it was
before the children were born. The CSW was unable to reach
either mother or father by phone, text, or email that day.
The apartment manager called the CSW the following day.
She reported that another neighbor had called law enforcement
the previous week due to mother and father fighting; the
manager had called law enforcement twice before for the same
reason. In one of those incidents, mother told the manager that
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father had hit her, but when law enforcement arrived mother
said the altercation had been only verbal. The manager also said
that when mother moved in two years earlier, mother said she
took medication for bipolar disorder. The manager said mother
had been aggressive toward her in the past by yelling at her. The
manager had never witnessed father in a physical altercation.
She said the children were always clean.
The CSWs made another in-home visit on March 8, 2022,
stating that they had concerns about the multiple law
enforcement calls to the residence. Mother again stated that she
did not want to give the CSWs any information, and again the
CSWs told mother it would be in her best interest to share her
side of the story. Maternal grandmother was there when the
CSWs arrived, but she left so she would not be present while
mother was being interviewed.
Mother said she was not interested in continuing a
relationship with father, and she had been to court to begin the
process of seeking full custody of the children and getting child
support from father. Mother said father had been to visit the
children twice recently, including once to babysit them while
mother went out. Mother and father got into an argument at the
time. Mother explained that she arrived home to find father
asleep while L. was awake with a blanket halfway over him; the
diapers of both babies appeared to have not been changed since
she left. Mother said she does not trust father with the children.
Mother stated that some of the law enforcement calls
involved past roommates rather than her, and the neighbors “call
law enforcement for anything they think they hear.” Mother
denied being violent or aggressive toward anyone. When asked
about a past arrest for domestic violence, mother blamed the
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incident on an ex-boyfriend. She stated that when law
enforcement arrived, they said “one of them had to be arrested.”
Mother asked the CSWs to not return, because the children were
fine.
Mother said she might have postpartum depression, and
she sometimes feels alone. She had been prescribed trazodone in
the past, but it made her sleepy so she stopped taking it. She
also said she was not willing to participate in counseling. She
admitted texting a paternal family member that she was sad, but
denied expressing any desire to harm father.
The CSW called and texted father on March 11; father
returned the call on March 16. Father said he does not have any
concerns about the children being in mother’s care. Father said
he occasionally drinks alcohol and uses marijuana socially. He
agreed to submit to a drug test, but said that because he works
two jobs, his time was limited.
Regarding the reported domestic violence incident, father
said he told mother he cheated on her, so she grabbed him by the
shirt and demanded to know why. The children were sleeping in
another room at the time. When law enforcement arrived, “they
told him he was the victim.” He also said that mother has
threatened to keep the children away from him. Father said
mother does not hit him, but she does cuss at him and call him
names. Father admitted there had been multiple law
enforcement calls to the residence “due to arguments,” and stated
that those arguments are why he and mother were currently
taking a break from their relationship.
Father stated that he and maternal grandmother had not
had a good relationship in the past. He reported that over a year
earlier, maternal grandmother came to the home and began
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physically attacking mother; when he tried to break up the fight,
maternal grandmother began attacking him. Father stated that
his relationship with maternal grandmother was better now.
Father admitted that he had been arrested for driving under the
influence, but stated that the charge was eventually dropped.
The CSW spoke with father’s mother (paternal
grandmother), who stated that father was a victim of intimate
partner violence, which father had admitted and paternal
grandmother had witnessed. Paternal grandmother said mother
and father argue “all the time.” She also said mother and
maternal grandmother had “jumped” father, hitting him with
objects. Paternal grandmother said that recently mother was
using the “children as leverage to manipulate” father. Paternal
grandmother also said mother hit father while he was holding the
children, and mother threatened to hide the children if father
reported mother’s actions. Paternal grandmother also said she
received messages on Instagram from mother stating that mother
would kill herself if father did not come home. Paternal
grandmother said she had no concerns about the well-being of the
children while in father’s care.
Both mother and father had prior histories with the
dependency system as minors. Mother’s involvement was “due to
[maternal grandmother’s] history of substance abuse, having a
criminal conviction of willful cruelty to a child, and leaving the
children unsupervised.” Father’s involvement was “due to
physical abuse.” A previous DCFS referral regarding mother and
baby S. testing positive for marijuana at the time of the twins’
birth had been “evaluated out.”
On March 23, 2022, the juvenile court issued an order
removing the children from both parents’ custody. When CSWs
8
arrived at the home, mother said she did not understand because
she told the CSWs not to come back. The CSWs stated that
DCFS had concerns about domestic violence and drug use in the
children’s presence. Mother told the CSW she had obtained a
restraining order against father the day before, but when the
CSW asked to see it, mother could not produce it. Maternal
grandmother was also at the home; she said mother would likely
not respond well when DCFS left, including that mother “was
going to start hitting things around the home.” So maternal
grandmother left, saying that she was not going to be able to
“deal with” mother’s reaction. Mother said she would not
cooperate with DCFS, but “[a]fter about 2 hours of deliberation,”
mother agreed to allow the children to go with the CSWs. A
maternal aunt was assessed for placement.
On March 28, DCFS filed a dependency petition under
section 300, subdivisions (a) and (b)(1). Allegations a-1 and b-2
alleged that mother and father had a history of engaging in
violent physical altercations in the presence of the children,
including striking each other and breaking objects, necessitating
law enforcement involvement and placing the children at risk of
physical harm. Allegation b-1 alleged that mother had a history
of substance abuse and was currently an abuser of marijuana,
and that mother used marijuana while caring for the children.
Allegation b-1 also alleged that father knew of mother’s
substance abuse and failed to protect the children. Allegation b-3
alleged that mother has mental and emotional problems
including suicidal ideation, depression, aggressive behaviors, and
a diagnosis of bipolar disorder, rendering her incapable of caring
for the children. It noted that mother, while caring for the
9
children, texted that she wanted to kill or harm herself, and that
mother failed to take prescribed psychotropic medication.
At the detention hearing on March 30, 2022, the juvenile
court found a prima facie case for detaining the children. The
court ordered monitored visitation for both parents.
B. Jurisdiction and disposition
The jurisdiction/disposition report, filed April 20, 2022,
stated that the children were in the care of a maternal aunt. In
an interview on April 4, 2022, father explained that the argument
in February occurred after he told mother he cheated on her. He
said mother “took it like a champ. It says she beat up on me. She
didn’t hit me at all. She even fainted, fell and dropped the coin
vase. The kids were in the other room” asleep at the time.2
Father said he caught mother when she fainted. Father said
there was no violence, and law enforcement was called because
“[o]ur neighbor is an asshole.”
Father denied drug and alcohol abuse, stating that he did
not use marijuana and he only drank alcohol socially. Father
also said mother does not use drugs, and the bong at the house
was “probably old.” Mother and father had both taken drug tests;
both were negative. Father had no concerns about the children in
mother’s care. Father reported that he had not been allowed to
see the children since they were detained. He also said he has a
three-year-old child who lives with the child’s mother; father
would not disclose the child’s name and claimed to forget the first
and last names of the child’s mother. Father described his
current family life as “overwhelming.”
2 Father explained that the “coin vase” was a glass jar in the
kitchen where he and mother kept their spare change.
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When mother was asked about the February 2022 domestic
violence incident, she said she and father argued but they “didn’t
even touch each other, not one bit. I cried. That’s it. My
neighbors, they love to call the cops. . . . I don’t know who called
when I’m crying and having a mental break down [sic]. It’s
normal to have a mental breakdown; there’s other people who put
their emotions aside.” Mother said the children were “beautifully
sleeping” when she and father argued. She also stated,
“Obviously you see the holes in the wall. I mean at least he's not
hitting me and he’s hitting the door. Since the kids were born
none of that happened.”
Mother admitted there had been domestic violence in the
relationship before the children were born. In one incident when
she was pregnant, father “threw a taco plate on me. . . . He
grabbed me by my hair and pulled me down. He pushed me then
he choked me so bad to the point that I was scared.” However, the
violence stopped after the babies were born because father “was
just so happy. He was so sweet to me.” Mother also said father
was “the best father.” Mother said she had not used marijuana
while she was pregnant, but the day she went into labor, she
found cocaine in father’s pocket, so she used marijuana because “I
didn’t want to lose my cool.”
Mother had started taking domestic violence classes, and
she was looking into getting a mental health evaluation. Mother
said family members had suggested in the past that she was
bipolar, but an assessment suggested major depression instead.
Mother said she was “really sensitive” in the postpartum period,
but she did not feel depressed or suicidal.
When asked about paternal grandmother’s statements
regarding domestic violence, mother said paternal grandmother
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could not be believed. Mother said she was willing to do what
was needed to get the children back, and “it’s the best to have
[father] stay away. I don’t know; he might end up getting me
upset and maybe I wouldn’t be able to control my emotions
again.” She also said father was “somebody who has mentally
abused me.”
DCFS recommended that the petition be sustained. It
stated that mother and father seemed to lack insight with respect
to alcohol use, drug use, and domestic violence, and they seemed
to have an unresolved history of conflict and violence in the
relationship. DCFS recommended that the children remain
detained with the maternal aunt while both parents participated
in family reunification services to address domestic violence, drug
abuse, and mental health issues.
At the adjudication hearing, the minors’ counsel and
DCFS’s counsel requested that the petition be sustained as
alleged. Mother’s counsel and father’s counsel asked that the
petition be dismissed. Regarding disposition, father’s counsel
requested that the children be released to him or that he be
granted unmonitored visitation.
The court sustained the petition as alleged, finding the
children to be persons described by section 300, subdivisions (a)
and (b). Turning to disposition, the court found by clear and
convincing evidence that continuing in the parents’ homes would
pose a substantial danger to the children’s health, safety, and
well-being. The court ordered reunification services for both
parents, monitored visitation for both parents with DCFS
discretion to liberalize, and various additional services.
Father and mother each timely appealed.
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DISCUSSION
Mother asserts there was insufficient evidence to support a
finding of jurisdiction over the children. Father asserts there was
insufficient evidence to support the juvenile court’s disposition
order that the children be removed from his care. “‘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.”’” (In re
I.J. (2013) 56 Cal.4th 766, 773.)
A. Jurisdiction
Mother challenges the juvenile court’s finding of
jurisdiction over the children on each of the three grounds in the
sustained petition under section 300, subdivisions (a) and former
(b)(1)3: domestic violence; drug abuse; and mental and emotional
problems. We need not address all three. “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
3 The Legislature amended Welfare and Institutions Code
section 300, effective January 1, 2023, in part by rewriting
subdivision (b)(1). The change does not affect our analysis.
13
jurisdiction are supported by the evidence.” (In re Alexis E. (2009)
171 Cal.App.4th 438, 451.)
Mother contends substantial evidence does not support a
finding that the children were at risk due to domestic violence.
She asserts there was insufficient evidence that she and father
ever engaged in domestic violence, because the evidence showed
they had only verbal altercations. Mother also asserts that at the
time of the May 2022 jurisdiction hearing, she and father had
separated and there was no evidence that domestic violence
between the parents would recur.
“Exposure to domestic violence may serve as the basis for
dependency jurisdiction.” (In re Cole L. (2021) 70 Cal.App.5th
591, 602.) A “cycle of violence” between the parents may
constitute a failure to protect children “‘from the substantial risk
of encountering the violence and suffering serious physical harm
or illness from it.’” (In re T.V. (2013) 217 Cal.App.4th 126, 135.)
“‘[T]he question under section 300 is whether circumstances at
the time of the hearing subject the minor to the defined risk of
harm.’” (In re M.W. (2015) 238 Cal.App.4th 1444, 1453.)
Domestic violence involving a parent may support the exercise of
jurisdiction where there is evidence that the violence placed the
children at risk of harm, and the violence is ongoing or likely to
continue. (Ibid.)
Substantial evidence supports a finding of domestic
violence in many different forms that extended beyond the
relationship between mother and father. Mother herself told
CSWs that father pulled her down by the hair and choked her
while she was pregnant. Law enforcement had been called to the
home multiple times during mother and father’s arguments,
including while mother was pregnant and after the children were
14
born. Paternal grandmother reported that mother hit father in
the presence of the children. Mother told the CSW that father
had punched holes in the walls of their home, stating, “at least
he’s not hitting me.” A glass coin vase was shattered during an
argument while the babies were in the house. Mother texted a
family member or posted on Instagram that she was upset and
wanted to hit father or harm herself. Maternal grandmother left
the premises as the children were being removed from mother,
saying that mother would likely start hitting things after DCFS
workers left. Father reported that a year earlier, there was a
domestic violence incident in which maternal grandmother
physically attacked mother.
Mother points to her and father’s statements that the
arguments between them were only verbal, not physical, and that
the children were not present when they argued. However, the
juvenile court was not required to rely on mother and father’s
statements to the exclusion of the other evidence. (See, e.g., In re
Dakota H. (2005) 132 Cal.App.4th 212, 228 [a “judgment will be
upheld if it is supported by substantial evidence, even though
substantial evidence to the contrary also exists and the trial court
might have reached a different result had it believed other
evidence”].) Moreover, the record shows that mother and father
were not always forthcoming about what transpired between
them. Mother told a CSW she got a restraining order against
father, but she was unable to produce it. DCFS stated in its
reports that both mother and father seemed to be minimizing
their domestic violence issues. Paternal grandmother said
mother hit father while he was holding the children, and that
mother threatened to keep the children away from father if he
reported mother’s actions. In addition, the apartment manager
15
said mother reported that father hit her, but when law
enforcement arrived mother changed her story.
Mother also contends that there was no longer a risk of
violence because she and father had separated. However,
“[e]vidence of past conduct may be probative of current
conditions” if there is “‘some reason beyond mere speculation to
believe the alleged conduct will recur.’” (In re D.L. (2018) 22
Cal.App.5th 1142, 1146.) Here, there was evidence supporting a
finding that the violence would continue, because the evidence
showed domestic violence even when mother and father were not
together. Mother had been arrested for domestic violence with
another partner while she and father were on a break, and there
had been a domestic violence incident involving mother and
maternal grandmother. In addition, even after mother and
father separated and while the juvenile court case was pending,
mother and father got into an argument when father cared for
the children. In addition, mother told the CSW that she wanted
father to stay away because “he might end up getting me upset
and maybe I wouldn’t be able to control my emotions again.” In
short, sufficient evidence supported the juvenile court’s finding
that there was a risk the violence would continue.
Because we find that the juvenile court properly exercised
jurisdiction over the children due to domestic violence in the
home, we need not address mother’s alternate challenges to
jurisdiction. We therefore turn to father’s appeal.
B. Disposition
Father contends that despite the sustained petition, the
children should have been returned to his care. He argues that
he was cooperating with DCFS, he had separated from mother,
he had tested negative for drugs and alcohol, and there were
16
reasonable means of protecting the children without removing
them from him.
“A dependent child shall not be taken from the physical
custody of his or her parents . . . unless the juvenile court finds
clear and convincing evidence” that “[t]here is or would be a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the
minor’s physical health can be protected without removing the
minor from the minor’s parent’s . . . physical custody.” (§ 361,
subd. (c)(1).)
“The jurisdictional findings are prima facie evidence that
the child cannot safely remain in the home. (§ 361, subd. (c)(1).)
The parent need not be dangerous and the child need not have
been actually harmed for removal to be appropriate. The focus of
the statute is on averting harm to the child.” (In re Cole C. (2009)
174 Cal.App.4th 900, 917.) As discussed above, there was
substantial evidence of domestic violence in the home, and father
was found to be an offending parent. Mother told CSWs that
father choked her while she was pregnant, calls to law
enforcement said father hit mother, mother told the CSW that
father had punched holes in the walls, and paternal grandmother
reported that father hid or minimized mother’s domestic violence
toward him because father feared mother would keep the
children away from him.
Father argues that “the twins were not injured in any
incident between mother and father,” and “there was no ongoing
domestic violence after they were born that would cause long-
term” emotional damage. However, a juvenile court “need not
wait until a child is seriously abused or injured to assume
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jurisdiction and take steps necessary to protect the child.” (In re
N.M. (2011) 197 Cal.App.4th 159, 165.) The evidence of domestic
violence here, including father’s failure to protect the children,
supported the juvenile court’s finding that there were no
reasonable means to protect the children without removing the
children from father’s care.4
C. ICWA
Both mother and father filled out forms stating that they
did not have Native American ancestry, and accordingly the
juvenile court found that ICWA did not apply. Father contends
DCFS failed to comply with investigation requirements under
ICWA, and therefore the juvenile court erred in finding that
ICWA did not apply. Father asks that the case be remanded to
require compliance with ICWA.
While this appeal was pending, the juvenile court ordered
DCFS to comply with ICWA’s investigation requirements; we
granted DCFS’s request for judicial notice of this order. DCFS
therefore asserts father’s ICWA contention is moot. We agree.
“An appeal may become moot where subsequent events, including
orders by the juvenile court, render it impossible for the
reviewing court to grant effective relief.” (In re E.T. (2013) 217
Cal.App.4th 426, 436.) Because the juvenile court has already
ordered DCFS to comply with ICWA requirements, reversal and
remand are not warranted.
4 We also note that there is no evidence in the record about
father’s living situation, aside from a passing comment that
father had gone to his aunt’s house when he and mother decided
to separate. There is no information as to whether father had a
living space that could accommodate the twin infants, or whether
he had access to childcare while he worked his two jobs.
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DISPOSITION
The juvenile court’s jurisdiction and disposition orders are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P.J.
MORI, J.
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