In re Kalley A. CA2/7 ( 2023 )

Filed 12/4/23 In re Kalley A. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re KALLEY A. et al., A Persons B319624
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. 21CCJP05671A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
HELENA J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Hernan D. Vera, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and O. Raquel Ramirez, Senior
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Helena J., mother of minor Kalley A., appeals from the
juvenile court’s March 14, 2022 jurisdiction findings and April 14,
2022 disposition order. These orders declared her daughter
Kalley (born November 2009) a dependent child of the court,
removed her from Helena, placed her with father Cedric A.,
terminated jurisdiction, and granted sole physical custody to
Cedric with joint legal custody to both parents with monitored
visits by Helena. Helena also appeals from the juvenile court’s
March 14, 2022 jurisdiction findings and disposition order
entered the same day declaring her younger daughter Kalena K.
(born January 2018) a dependent child of the court, removing her
from Helena, and placing her with father Dushawnte S., with
monitored visits by Helena. While this appeal was pending, the
juvenile court overseeing Kalena’s case terminated jurisdiction as
to Kalena, awarded primary physical custody of Kalena to
Helena, and joint legal custody to both parents.
We affirm the jurisdiction findings, disposition order, and
custody order as to Kalley, but we dismiss the appeal from the
jurisdiction findings and disposition order as to Kalena as moot.
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DISCUSSION
A. Standard of Review
“On appeal, the ‘substantial evidence’ test is the
appropriate standard of review for both the jurisdictional and
dispositional findings. [Citations.] The term ‘substantial
evidence’ means such relevant evidence as a reasonable mind
would accept as adequate to support a conclusion; it is evidence
which is reasonable in nature, credible, and of solid value.” (In re
J.K. (2009) 174 Cal.App.4th 1426, 1433.) “We review factual
findings in the light most favorable to the juvenile court’s order.”
(In re H.B. (2008) 161 Cal.App.4th 115, 119.) Accordingly, “all
conflicts are to be resolved in favor of the prevailing party, and
issues of fact and credibility are questions for the trier of fact.
[Citation.] In dependency proceedings, a trial court’s
determination will not be disturbed unless it exceeds the bounds
of reason.” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
B. Jurisdiction Findings as to Kalley
On March 14, 2022 the juvenile court sustained counts a-1
(physical abuse as to Kalley), a-2 (physical abuse as to Kalena),
b-3 (drug and alcohol abuse), and b-4 of the petition (driving
while intoxicated) under Welfare and Institutions Code former
section 300, subdivisions (a) and (b)(1).1 Helena contends we
should reverse all the sustained counts “for lack of substantial
evidence of causation or any risk of physical harm to” Kalley, and
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
3
that we should thus void the disposition orders.2 (See In re
Jesus M. (2015) 235 Cal.App.4th 104, 114 [“In the absence of
jurisdiction, the court had no authority to issue a dispositional
order or the family law custody order.”]; In re R.M. (2009)
175 Cal.App.4th 986, 991 [“In light of our determination that the
jurisdictional order must be reversed, the dispositional order
placing the children outside mother’s home and all subsequent
orders as to mother must be reversed as well.”].)
“‘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. (2013) 56 Cal.4th 766, 773.) Because we can affirm the
juvenile court’s finding of jurisdiction over Kalley if any of the
statutory bases for jurisdiction is supported by substantial
evidence (ibid.), we focus our discussion on count a-1, which was
based primarily on Kalley’s statements recounting physical abuse
by Helena in November and December 2020, when Kalley was
11 years old.
The juvenile court sustained count a-1 as pleaded, finding:
“[Helena J.] physically abused the child, Kalley. In December
2020, the mother struck the child with a broom, belt, and
hangers, and bit the child’s arm. The mother struck the child’s
2 Helena’s appeal from the jurisdiction findings relating to
her daughter Kalena is addressed in Part E.
4
mouth, causing the child’s mouth to bleed. On 11/11/2020, the
mother bit the child, struck the child with a broom, pulled the
child’s hair, and struck the child’s eye, mouth, nose, and head
with the mother’s fist, causing the child to sustain a bloody nose,
bruising to the child’s face, and a mark to the child’s right
forearm. On a prior occasion, the mother struck the child’s foot
with the mother’s fist, pulled the child’s hair, and kicked the
child’s eye. The child does not feel safe in the mother’s care.
Such physical abuse was excessive and caused the child
unreasonable pain and suffering. The physical abuse of the child,
Kalley, by the mother endangers the child’s physical health and
safety and places the child . . . at risk of serious physical harm,
damage, danger, and physical abuse.”
In sustaining count a-1 and declaring Kalley a dependent of
the court, the juvenile court found, under the preponderance of
the evidence standard, that Kalley had suffered, or there was a
substantial risk she would suffer, “serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or guardian.”
(§ 300, subd. (a).) The court explained, “I have gone back over the
reports and I find the statements by the children are credible and
the denials [by mother] are not,” and ultimately found the
allegations true.
On appeal, substantial evidence supports the juvenile
court’s jurisdiction findings. Kalley’s statements about Helena’s
physical abuse that the juvenile court found credible included:
Helena struck Kalley with a broom, belt, and hangers; bit
Kalleyʼs arm leaving a mark on her right forearm; struck
Kalleyʼs eye, mouth, and nose with her fist causing a bloody nose,
black eye and “busted” lip; and pulled Kalleyʼs hair. Kalley’s
statements were corroborated by her sister Kalena, who reported
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she saw Helena strike Kalleyʼs foot with her fist, pull Kalleyʼs
hair, and kick Kalleyʼs eye. Kalley reported that Helena abused
her for a long period of time.3 In December 2020, Kalley called
her godmother Ashley H. and told her about the abuse. Ashley
called the children’s maternal aunt Joanna M., who picked up the
children, and Ashley ultimately took the children to live at their
grandparents’ home.
Several adult family members also reported injuries to
Kalley caused by Helena’s physical abuse. Joanna stated Kalley
had “bruises on her eye” and a “busted” and “swollen” lip when
she picked her up on December 13, 2020. Kalley told Joanna that
Helena caused the injuries to her face. Kalley’s godmother
Ashley observed a “mark” on Kalleyʼs cheek. Kalleyʼs maternal
grandfather and step-grandmother stated they saw photos of
Kalleyʼs “busted” lip and blackened eyes after an altercation
between Kalley and Helena and personally observed Kalley had
3 This case is unlike In re Henry V. (2004) 119 Cal.App.4th
522, on which Helena relies. Although the record provides no
additional detail as to the length of time Kalley was abused by
Helena outside of the incidents in late 2020, the evidence is
substantial that the physical abuse here went beyond “a single
occurrence” or isolated event. (See id. at p. 529 [findings
insufficient to support out-of-home-placement under the clear
and convincing evidence standard where mother’s physical abuse
“while substantial, was apparently a single occurrence, and
neither the Agency nor the court considered it an obstacle to
reunification in the near future”].) In re Henry V. also involved a
disposition order of removal subject to the higher clear and
convincing standard of proof than the jurisdictional finding
challenged here.
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some bruising when her godmother brought the children to their
home.
Helena admitted physically restraining Kalley in November
2020 but denied ever physically disciplining Kalley.
Despite this evidence before the juvenile court, Helena
contends jurisdiction was improper because Kalley purportedly
was not at risk of current harm at the time of the adjudication
hearing (in March 2022), because the incidents of abuse Kalley
described occurred over a year earlier (in November and
December 2020). (See § 300.2 [“the purpose of the provisions of
this chapter relating to dependent children is to provide
maximum safety and protection for children who are currently
being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection,
and physical and emotional well-being of children who are at risk
of that harm”].)
The court did not err in finding jurisdiction on the record
before it. Helena’s acts of physical abuse against Kalley, Kalley’s
statement that abuse occurred over a long period, and Kalley’s
ongoing fear and feelings of lack of safety in Helena’s care amply
supported the juvenile court’s finding there was a substantial
risk of current harm to Kalley. The lack of more recent incidents
of abuse does not help Helena, largely because Kalley had been
living with her grandfather and step-grandmother since the
December 2020 incidents. “Although section 300 generally
requires proof the child is subject to the defined risk of harm at
the time of the jurisdiction hearing [citations], the court need not
wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child
[citation]. The court may consider past events in deciding
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whether a child currently needs the court’s protection. [Citation.]
A parent’s “‘[p]ast conduct may be probative of current
conditions” if there is reason to believe that the conduct will
continue.’” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-
1384.) Accordingly, substantial evidence supports the juvenile
court’s sustaining of count a-1 and the jurisdiction finding
relating to Kalley.
C. Removal Order as to Kalley
We next consider Helena’s challenge to the juvenile court’s
removal order as to Kalley. The juvenile court held its
disposition hearing for Kalley’s case on April 14, 2022. It ordered
Kalley removed from Helena based on the court’s previous
findings, including that statements regarding Helena’s physical
abuse were credible. The court placed Kalley with her father
Cedric, who lived in Atlanta, Georgia. The court further found,
by clear and convincing evidence,it posed a substantial danger to
Kalley to return to Helena, reasonable efforts were made to
prevent Kalleyʼs removal, and Kalley would be safe with her
father in Atlanta. The juvenile court found the conditions
justifying its jurisdiction would not exist if Kalley were released
to Cedric. It thus terminated jurisdiction, granted sole physical
custody to Cedric, granted joint legal custody to both parents, and
ordered monitored visits by Helena. Helena contends the record
lacks substantial evidence for the juvenile court’s finding that
placing Kalley with Helena would pose a substantial danger to
the child, and further argues the removal order should be
reversed and the matter remanded so Kalley can be returned to
Helena’s custody. (§ 361, subds. (c), (d).)
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Section 361, subdivision (c)(1), provides in pertinent part:
“A dependent child shall not be taken from the physical custody
of his or her parents . . . with whom the child resides at the time
the petition was initiated, unless the juvenile court finds clear
and convincing evidence . . . [¶] [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.”
“When reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. In conducting its review,
the court must view the record in the light most favorable to the
prevailing party below and give appropriate deference to how the
trier of fact may have evaluated the credibility of witnesses,
resolved conflicts in the evidence, and drawn reasonable
inferences from the evidence.” (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1011–1012.)
The facts supporting jurisdiction also support removal of
Kalley from Helena’s physical custody. As noted above, the
juvenile court found that Helena was physically abusive to
Kalley, and that Kalley’s and Kalena’s statements about the
abuse were credible, warranting removal. Helena also minimized
and denied her physical abuse of Kalley, and the court found her
statements not credible. On this record, a reasonable fact finder
would have found it highly probable there were no reasonable
means to protect Kalley’s “physical health, safety, protection, or
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physical or emotional well-being” other than by removal from
Helena’s physical custody. Substantial evidence supports the
court’s finding that clear and convincing evidence existed for the
removal order.
D. Visitation Order as to Kalley
Finally, Helena contends the juvenile court erred by
ordering monitored visitation but failing to set the minimum
frequency and duration of her visits. (See In re C.S. (2022)
80 Cal.App.5th 631, 639 [noting case law holds “it is
impermissible for the court to authorize a third person, whether
social worker, therapist or the child, to determine whether any
visitation will occur”].) We review the court’s visitation order for
abuse of discretion. (In re J.P. (2019) 37 Cal.App.5th 1111, 1119.)
We find no error.
At the detention hearing in December 2021 the juvenile
court ordered monitored visits for Helena three times a week for
three hours each visit, which the Department of Children and
Family Services (Department) could “liberalize.” At Kalleyʼs
disposition hearing in April 2022 the juvenile court ordered
monitored visits for Helena with Kalley “as stated in the JV205
and/or JV206” Judicial Council forms included in the juvenile
custody order. We take judicial notice of the fact that the JV-205
form attached to the final custody order, filed April 28, 2022,
specifies Helena is “to have monitored visits a minimum of three
time[s] a week for three hours each visit. Additional visits to be
arranged by parents.”4 In other words, the court clearly specified
4 Under section 362.4, when a juvenile court terminates
jurisdiction over a case, it may “issue an order ‘determining the
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the frequency of visitation, and did not delegate it in any way,
and it was identical to the schedule it ordered at the detention
hearing. Under the circumstances, the juvenile court did not
improperly delegate when and how Helena would get visitation,
or otherwise abuse its discretion.
E. Helena’s Appeal Relating to Kalena Is Moot
As noted above, Helena also appealed from the juvenile
court’s March 14, 2022 jurisdiction findings and disposition order
entered the same day declaring her younger daughter Kalena a
dependent child of the court, removing her from Helena, and
placing her with father Dushawnte S., with monitored visits by
Helena. While this appeal was pending, in December 2022 the
Juvenile Dependency Court of San Bernardino County5
terminated jurisdiction as to Kalena, awarded primary physical
custody of Kalena to Helena, and joint legal custody to both
parents. On our own motion, we take judicial notice of the
juvenile court’s December 8, 2022 minute order and custody
orders regarding Kalena. (See Evid. Code, §§ 452, subds. (c)-(d),
459.) Helena did not appeal from those orders.
custody of, or visitation with, the child,’” which “may be enforced
or modified by the family court.” (In re Ryan K. (2012)
207 Cal.App.4th 591, 594, fn. 5.) Such an order is “sometimes
referred to as ‘family law’ orders or ‘exit’ orders.” (Ibid.) We take
judicial notice of the exit orders in this case under Evidence Code
sections 452, subdivision (d), and 459.
5 Kalena’s case was transferred to the Superior Court of
San Bernardino County in June 2022 based on her father’s legal
residence within that county.
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As this court explained in In re Rashad D. (2021)
63 Cal.App.5th 156, “termination of dependency jurisdiction does
not necessarily moot an appeal from a jurisdiction finding that
directly results in an adverse juvenile custody order. But in most
cases . . . for this court to be able to provide effective relief, the
parent must appeal not only from the jurisdiction finding and
disposition order but also from the orders terminating
jurisdiction and modifying the parent’s prior custody status.
Without the second appeal, we cannot correct the continuing
adverse consequences of the allegedly erroneous jurisdiction
finding.” (Id. at p. 159.) By not appealing the December 2022
custody orders, Helena “forfeited any challenge to those rulings,
including the juvenile court’s jurisdiction to issue them.” (Id. at
p. 167; accord, In re Jose C. (Oct. 9, 2023, B317838) __ Cal.5th ___
[2023 WL 6547667, at *1].)
Helena’s appeal from the March 14, 2022 orders pertaining
to Kalena is thus moot. (See In re D.P. (2023) 14 Cal.5th 266, 276
[a case is moot when events render it impossible for the court to
grant appellant meaningful relief]; accord, In re Jose C., supra,B317838) __ Cal.5th ___ [2023 WL 6547667, at *1].)
We invited the parties to file briefs addressing whether
Helena’s appeal from the orders relating to Kalena was moot, and
if so, whether we should exercise our discretion to review these
orders on the merits under In re D.P., supra, 14 Cal.5th 266. (See
id. at pp. 282-287 [detailing “nonexhaustive” factors court may
consider in deciding whether to exercise discretionary review of a
moot dependency appeal].) Factors we consider when deciding
whether discretionary review is warranted include, first, whether
the challenged jurisdiction finding could impact current or future
dependency proceedings (for example, by influencing a child
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protective agency’s decision to file a new dependency petition or a
juvenile court’s determination about whether to order further
reunification services). (Id. at p. 285.) Second, “whether the
jurisdictional finding is based on particularly pernicious or
stigmatizing conduct.” (Id. at pp. 285-286.) The “more egregious
the findings against the parent, the greater the parent’s interest
in challenging such findings.” (Id. at p. 286.) Third, a court may
also consider “why the appeal became moot”: “[p]rinciples of
fairness” may favor discretionary review of cases rendered moot
“by the prompt compliance or otherwise laudable behavior of the
parent challenging the jurisdictional finding on appeal.” (Ibid.)
In deciding whether to exercise their discretion, reviewing courts
“should be guided by the overarching goals of the dependency
system: ‘to provide maximum safety and protection for children’
with a ‘focus’ on ‘the preservation of the family as well as the
safety, protection, and physical and emotional well-being of the
child.’” (Ibid.; see § 300.2, subd. (a).)
The Department filed a letter brief stating its position that
the appeal from the disposition orders regarding Kalley is moot,
although the court could exercise discretion to consider the
jurisdiction findings. Helena filed a letter brief requesting full
consideration of the merits. Citing In re D.P., supra, 14 Cal.5th
at page 285, Helena argues discretionary review is warranted
here because she is “challenging a jurisdictional finding that ‘can
be considered by the Department in determining whether to file a
dependency petition or by a juvenile court in subsequent
dependency proceedings.’” Her argument is unavailing.
We decline to exercise our discretion to consider Helena’s
moot appeal of the orders pertaining to Kalena. Helena’s appeal
does not present circumstances that generally warrant
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discretionary review of a moot case, such as an issue of broad
public interest that is likely to recur, the likelihood of a
recurrence of the controversy between the parties, or a material
question that remains for the court’s determination. (See In re
D.P., supra, 14 Cal.5th at p. 282.) Helena’s allegation of
speculative future harm is insufficient (see id. at p. 278), and
even if Helena were presented with a future dependency petition
or family law proceedings, she will have the opportunity to
explain that Kalena was returned to her custody at the
disposition hearing, reflecting a court’s determination that she
did not pose a continuing risk to her child.
Further, the jurisdiction findings based on Helena’s
physical abuse of Kalena (premised on a single allegation that
Helena struck Kalena with a belt) are not sufficiently “egregious”
or “stigmatizing” conduct warranting exercise of our discretion to
reach the merits. While dependency jurisdiction by definition
necessarily involves conduct harmful to children, our assessment
of severity or perniciousness is a relative analysis. We do not
find the jurisdiction findings against Helena with regard to
Kalena to be based on particularly stigmatizing or pernicious
conduct such that our concerns over not insulating erroneous and
stigmatizing jurisdiction findings from review would prompt us to
review the merits in light of all other factors. Therefore, on
balance the factors the Supreme Court identified in In re D.P. do
not warrant discretionary review of Helena’s moot appeal of the
orders relating to Kalena.
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DISPOSITION
The jurisdiction findings, disposition order, and custody
order are all affirmed as to Kalley. The appeal from the
jurisdiction findings and disposition order as to Kalena is
dismissed as moot.
MARTINEZ, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
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