In re E.M. CA2/5 ( 2024 )

Filed 10/28/24 In re E.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re E.M. et al., Persons B329164
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. Nos.
23LJJP00009A,
23LJJP00010A–B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
G.M.,
Defendant and
Appellant.
APPEALS from orders of the Superior Court of the County
of Los Angeles, Jennifer W. Baronoff, Judge Pro Tempore.
Affirmed.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Respondent.
_____________________
I. INTRODUCTION
G.M. (father) appeals from the jurisdictional orders
declaring his three children1 dependents of the juvenile court
under Welfare and Institutions Code section 3002 based on his
physical abuse of his son and substance abuse issues. We affirm.
1 The children are father’s eldest daughter E.M. and son
L.M., born to mother A.M. in December 2009 and September
2012, and his younger daughter N.M., born to mother R.S. in
April 2020. The mothers did not appeal from the jurisdictional
findings or disposition orders.
2 All further references are to the Welfare and Institutions
Code.
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II. BACKGROUND
A. Petition
On November 10, 2022, the Los Angeles County
Department of Children and Family Services (Department)
received a referral alleging physical abuse of L.M. by father that
also placed E.M. and N.M. at risk.
On November 18, 2022, a social worker received a call from
L.M.’s school counselor who reported that, the prior Wednesday,
L.M. was “upset” and “unable to stay on task.” L.M. told the
counselor that his day was “‘ruined’” because father had slapped
him. According to L.M., when father became angry, he would hit
L.M., which happened “pretty often.” The counselor also
explained that L.M. did not attend class regularly, father would
not return calls from the school, and he had not communicated
with the school that year. The social worker reported that when
she called father, he hung up on her and when she and a Los
Angeles County Sheriff’s deputy tried to interview father at his
home, he told them he would not allow them inside without a
warrant.
On November 28, 2022, an emergency response social
worker interviewed E.M. at her middle school and she explained
that she lived in father’s home along with L.M. and N.M. and
that they had a live-in caretaker. E.M. also advised that she and
L.M. visited with mother A.M. on holidays and some weekends.
She denied that father used corporal punishment to discipline
her or her siblings and claimed that she did not know anything
about the reported slapping incident. She also reported in a
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subsequent interview that L.M. tended to lie and that she had
never seen father hit L.M. in the face.
On November 29, 2022, a social worker and a deputy
interviewed L.M. at his grade school, and he told them that
father had instructed him not to speak with the deputy unless
father was included in the interview. But he then talked about
the incident, explaining father became angry at him that
morning because he could not tie his shoes and hit him in the
head four times. L.M. said “his head hurt and he began to cry.”
But L.M. claimed it was an isolated incident and denied that he
or his siblings were physically abused in the home.
On December 7, 2022, an emergency response social worker
interviewed mother A.M. who advised that E.M. and L.M. visited
her every other weekend, on school breaks, and on holidays. She
described the informal custody arrangement as “mutually agreed
upon” between her and father.
Mother A.M. also advised that when she asked L.M. about
the incident, he said father “slapped him in the face once”
because he was unable to tie his shoes. When she asked E.M.
about the incident, she said that she had already left for school
on that day and was unaware of it.
According to mother A.M., father instructed the children
not to discuss “what goes on in his home” and she often had
trouble obtaining information from the children. A.M. also
reported that father did not allow her to speak to the children on
the house phone and had taken E.M.’s cell phone because he
suspected she told A.M. “things that go on in the home.” A.M.
believed father limited the children’s social life “to keep things in
the home as private as possible.” And, she suggested that father
“coach[ed] the children.”
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Mother A.M. further advised the social worker that she left
father in January 2016 after an eight-year relationship. When
she decided to leave him, “‘[h]e got drunk’”, beat her, tried to kill
her, and took her phone.
Mother A.M. informed the social worker that father worked
from 1:30 p.m. to 10:30 p.m. She believed that the children
missed an excessive amount of school because, according to her
conversations with E.M., father would “‘f[a]ll asleep drinking’”;
and A.M. knew from her own experience that father could “stay
up all night drinking an 18[-]pack of beer.” She also stated that
she had seen beer cans in the home and refrigerator and was
concerned about father’s beer consumption.
On December 7, 2022, a social worker interviewed mother
R.S. who was reluctant to provide her home address due to
concern that father would restrict her access to N.M. She
explained that father had restricted her access to N.M. in the
past when she cooperated with the Department during other
investigations. She further explained that father claimed to have
an order, which she had never seen, granting him primary
custody of N.M. pursuant to which he allowed her to visit N.M.
every other weekend in his home.
Mother R.S. advised that she left father because he was
verbally abusive to her; but they were still in a “dating
relationship.” She claimed father had “‘anger problems’”, drank
“a lot”—sometimes as much as a 12-pack of beer—and, when he
drank, he would become “unexpectedly angry, yelling and cursing
a lot”, and would tell R.S., “‘You will never see [N.M.] again.’”
On January 10, 2023, the Department filed two section 300
petitions against father, one on behalf of N.M. and the other on
behalf of E.M. and L.M.
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As to N.M., the Department alleged in counts a-1, b-1, and
j-1, that father physically abused L.M. and such abuse placed
N.M. at risk of serious physical harm and physical abuse. In
count b-2, the Department alleged that father’s history of
substance abuse and current abuse of alcohol rendered father
incapable of providing regular care and supervision of N.M. and
placed N.M. at risk of serious physical harm.
As to E.M. and L.M., the Department alleged in counts a-1,
b-1, and j-1, that father physically abused L.M. and that such
abuse placed E.M. and L.M. at risk of serious physical harm and
physical abuse. In count b-2, the Department alleged that
father’s history of substance abuse and current abuse of alcohol
rendered father incapable of providing regular care and
supervision of the children and placed the children at risk of
serious physical harm.
B. Jurisdiction and Disposition
In the February 21, 2023, jurisdiction/disposition report,
father explained the incident with L.M., claiming he was
“‘working off little sleep and was frustrated’” that morning.
When L.M. forgot how to tie his shoes while getting ready for
school, father yelled at him and “tapped his head one time.”
Father denied ever telling L.M. not to talk about the incident and
also denied hitting the children, claiming this was an isolated
incident. Father conceded that he drank beer occasionally, but
not in the presence of the children. He denied using crack
cocaine, but admitted past recreational cocaine and marijuana
use.
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Mother R.S. told the social worker that father only resorted
to physical discipline “‘as a last resort.’” She described the
discipline as “‘like a smack or something, but not abusive, not
hitting them to the point of being abused or bleeding.’” She also
stated that father drank alcohol, but did not believe he would get
drunk to the point of not being able to care for a child.
L.M. told the social worker that father “‘tapped lightly’” on
the side of his head when he was unable to tie his shoes. But he
gave inconsistent responses when asked whether father had ever
done something like that before.
The children’s live-in caretaker told the social worker that
she had no concerns for the children in father’s care. But in a
subsequent interview, she admitted that she initially lied about
having no concerns for the children because father was nearby
during her interview. She also confirmed the physical abuse
allegation, saying she heard father slap L.M. and the child
crying. The social worker reported that the caretaker moved out
of father’s home after talking to her.
At the April 26, 2023, jurisdiction and disposition hearing,
the juvenile court dismissed count a-1 as to E.M. and N.M., but
sustained the other counts.
Father timely appealed from the jurisdiction and
disposition orders.
C. Post-Disposition Proceedings
While father’s appeals were pending, the juvenile court
terminated dependency jurisdiction over the children and entered
exit custody orders: (1) granting mother A.M. and father joint
legal and physical custody of E.M. and L.M., with A.M.’s home
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designated as their primary residence and father having specified
“parenting time” with them; and (2) granting mother R.S. and
father joint legal and physical custody of N.M., with father’s
home designated as her primary residence.3
III. DISCUSSION
A. Motion to Dismiss
1. Background
With its respondent’s brief, the Department also filed a
motion to dismiss, arguing that father’s appeals are moot and
should be dismissed because the juvenile court’s subsequent
custody orders, and father’s failure to appeal from them, prevent
us from providing father any effective relief.
Father opposed the motion.
2. Analysis
“A case becomes moot when events ‘“render[ ] it impossible
for [a] court, if it should decide the case in favor of plaintiff, to
grant him any effect[ive] relief.”’ [(Consol. etc. Corp. v. United A.
etc. Workers (1946) 27 Cal.2d 859, 863.)] For relief to be
‘effective,’ two requirements must be met. First, the plaintiff
must complain of an ongoing harm. Second, the harm must be
redressable or capable of being rectified by the outcome the
plaintiff seeks. (See id. at p. 865.)” (In re D.P. (2023) 14 Cal.5th
266, 276.) “Even when a case is moot, courts may exercise their
3 The Department’s request for judicial notice is granted.
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‘inherent discretion’ to reach the merits of the dispute.” (Id. at
p. 282.)
Generally, once a juvenile court terminates jurisdiction, an
appeal from an earlier order is moot. (In re Rashad D. (2021) 63
Cal.App.5th 156, 163.) Nonetheless, “a case is not moot where a
jurisdictional finding affects parental custody rights [citation],
curtails a parent’s contact with his or her child [citation], or ‘has
resulted in [dispositional] orders which continue to adversely
affect’ a parent [citation].” (In re D.P., supra, 14 Cal.5th at
pp. 277–278.)
Here, the jurisdictional findings resulted in an exit order
that changed the primary residence of E.M. and L.M. from
father’s home to their mother’s home and limited father’s contact
with them. On this record, we conclude father’s challenge to the
jurisdictional findings as to these children is not moot and
therefore deny the Department’s motion to dismiss. As to N.M.,
even if the appeal were otherwise moot, for father’s benefit, we
explain below why father’s appeal is without merit. (In re Alexis
E. (2009) 171 Cal.App.4th 438, 451.)
B. Jurisdictional Findings
Father contends that the jurisdictional findings were not
supported by substantial evidence.
We review the juvenile court’s jurisdictional findings for
substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) We
draw all reasonable inferences in favor of the findings and orders
of the juvenile court and do not reweigh the evidence or reassess
credibility. (Ibid.)
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“‘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.)
“Section 300, subdivision (b)(1), allows a child to be
adjudged a dependent of the juvenile court when ‘[t]he child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child, or the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child from the conduct of a custodian with whom the child has
been left.’” (In re Cole L. (2021) 70 Cal.App.5th 591, 601.)
Here, the evidence showed that father struck L.M., causing
pain and making him cry, because the child could not tie his
shoes. L.M.’s school counselor described him on the morning of
the incident as upset and unable to stay on task. Father did not
deny striking the child, instead characterizing the physical
contact as a tap and explaining that he was sleep-deprived. In
addition, the children’s live-in caretaker heard father striking
L.M. but did not initially disclose the incident to Department
investigators because she was intimidated by father. The
evidence further showed that father had unresolved anger issues
and limited access to the children and information about what
went on in the home.
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That evidence supported a reasonable inference that there
was a substantial risk the children would suffer serious physical
harm while under father’s care. Indeed, the circumstances under
which the incident occurred—in the morning while the child
dressed for school and father was sleep deprived—suggested that
striking him in the face or head was unwarranted and excessive
and more likely the result of father’s anger issues than a genuine
desire to discipline L.M. (In re D.M. (2015) 242 Cal.App.4th 634,
641 [“Whether a parent’s use of discipline on a particular
occasion falls within (or instead exceeds) the scope of th[e]
parental right to discipline turns on three considerations:
(1) whether the parent’s conduct is genuinely disciplinary;
(2) whether the punishment is ‘necess[ary]’ (that is, whether the
discipline was ‘warranted by the circumstances’); and
(3) ‘whether the amount of punishment was reasonable or
excessive’”].) Having concluded that substantial evidence
supported counts b-1 of the petitions, we need not discuss the
merits of father’s challenge to the other counts of the petitions.
(In re I.J., supra, 56 Cal.4th at p. 773.)
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IV. DISPOSITION
The juvenile court’s jurisdictional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
DAVIS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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