In re M.G. CA2/1

Filed 8/30/21 In re M.G. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re M.G., a Person Coming Under B310070
the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP02966)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sabina A. Helton, Judge. Dismissed.
Nicole Williams, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
J.P. (Mother) appeals from a jurisdictional order of the
juvenile court asserting jurisdiction over her four children. The
court found it had jurisdiction on several bases, some involving
Mother’s alleged failure to protect the children from S.C.,
Mother’s live-in boyfriend and father of two of her children, and
some involving S.C.’s substance abuse and an incident of S.C.
inappropriately disciplining one of the children. Even if Mother
is correct that substantial evidence does not support the court’s
finding that she failed to protect the children, the juvenile court
would still have correctly taken jurisdiction over them based
on the unchallenged jurisdictional findings regarding S.C.’s
conduct. As such, Mother’s appeal does not present a justiciable
controversy and is moot. We decline to exercise our discretion to
nevertheless consider the merits of her appeal. Accordingly, the
appeal is dismissed.
FACTS AND PROCEEDINGS BELOW
A. Family Background
Mother has four children: A.G. (born June 2009), M.G.
(born July 2008), D.C. (born April 2014), and Se.C. (born
November 2019). S.C. is the father of D.C. and Se.C. A.G. and
M.G.’s father is now deceased.
Mother has one prior referral to the Los Angeles
Department of Children and Family Services (DCFS) for general
neglect. Namely, on March 16, 2015, Mother left M.G. and D.C.,
then ages six and 11 months, unsupervised in an unlocked car
while Mother went into a store to shop with A.G. When law
enforcement arrived on the scene, the children appeared “fine
and well cared for.” The referral was substantiated and closed.
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Mother has no criminal history except for a 2010 arrest for
“PC-Force/ADW not firearm: GBI Likely.”
S.C.’s criminal history includes numerous arrests and five
convictions related to substance abuse and/or driving under the
influence.
B. Circumstances Leading to Detention and
Welfare and Institutions Code section 3001
Petition
The family most recently came to the attention of DCFS
when M.G. reported a January 31, 2020 argument between
Mother and S.C. that resulted in police involvement.
Specifically, M.G. woke up and saw Mother yelling at S.C.
to leave the home and threatening to call law enforcement
if he did not. S.C. eventually left the home and law enforcement
arrived a few minutes thereafter. M.G. indicated that “either
[S.C.] or [the maternal] grandfather was drunk” during the
incident. According to M.G., S.C. often came home drunk, and
M.G. assumed that was why Mother and S.C. were fighting.
Mother and the children spent the rest of the weekend at the
maternal aunt’s home. A couple of days thereafter, S.C. returned
to the family home.
M.G. denied the argument resulted in any physical
violence, but indicated that “a long time ago,” S.C. went to
jail because he grabbed M.G. by the neck and the maternal
grandfather had to pull S.C. off of the child. A.G. similarly
reported that she had observed S.C. choke M.G. on one occasion.
M.G. further reported that in approximately 2019, S.C. had
1 All further statutory references are to the Welfare and
Institutions Code.
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attempted to hit M.G. “after the child tried to defend his mother,”
and that Mother had called the police.
Mother and S.C. frequently argued, usually when S.C.
came home drunk. M.G. indicated S.C. was under the influence
of alcohol “like almost every week” and that he would smoke
marijuana outside or at a friend’s home. A.G. reported observing
this same behavior. M.G. admitted he did not have a good
relationship with S.C., but both A.G. and M.G. denied being
afraid of S.C.
S.C. indicated he used recreational marijuana three to
four times a week, that he did not smoke near the children, that
in 2019 he had abused Xanax and cocaine, and that he drank
alcohol on the weekends. He had completed a DUI program
in 2018, which was an “eye opener.” Like Mother, he denied
any domestic violence, but acknowledged arguing with Mother.
According to S.C., when he came home intoxicated, Mother would
become upset easily and ask him to leave, which he did.
S.C. denied ever physically assaulting M.G. He reported
that in January 2020, however, M.G. was playing with a pocket
knife and threatened S.C. with it, so S.C. wrapped his arms
around M.G. to take the knife away from him. D.C. similarly
reported seeing S.C. wrap his arms around M.G.’s neck to take
a knife away from M.G. on one occasion. This occurred on a
weekend when Mother had left M.G. and A.G. in S.C.’s care
while she, A.G., and Se.C. attended A.G.’s cheer competition
in Las Vegas, something Mother has done more than once.
According to M.G., S.C. took the knife from him on this occasion,
but had choked him on a separate occasion. M.G. believed S.C.
had choked him on that separate occasion likely because M.G.
was “being annoying.” S.C. told Mother about the incident with
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the knife the weekend it occurred. Mother was very upset when
she learned about it, and considered immediately driving home
from the cheer competition, but did not ultimately do so.
Mother acknowledged S.C. had a drinking problem and
needed to deal with it, and was aware he had been arrested
multiple times for driving under the influence of drugs and
alcohol, including Xanax and cocaine. Mother denied domestic
violence in the home, but acknowledged she and S.C. would
argue. The arguments usually occurred because S.C. was under
the influence of alcohol. The sheriff ’s department call logs
indicate that in October 2020, Mother called law enforcement
for assistance when S.C. was throwing items around the house.
On that occasion as well, Mother denied domestic violence,
but disclosed S.C. had arrived home drunk and “snapped” her
computer.
Mother denied ever seeing S.C. harm or physically
discipline M.G., and indicated spanking was not allowed in
the home. Mother wanted to continue her relationship with
S.C. as long as he stayed sober and was able to recognize how
his behavior impacted the children. Mother had evicted the
maternal grandfather from the home due to his drug addiction
and felt S.C. should be held to the same standard.
S.C. indicated he did not feel the family had any underlying
issues that needed to be addressed and initially refused to drug
test for DCFS, but ultimately complied. His drug tests in April
and May 2020 were positive for marijuana.
On June 2, 2020, DCFS filed a section 300 petition on
behalf of the children alleging S.C. physically abused M.G. and
was a current abuser of alcohol, marijuana, cocaine, and Xanax,
and that Mother failed to protect the children from S.C.
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In a detention report filed concurrently with the petition,
however, DCFS also reported that “Mother ha[d] demonstrated
protective capacity by calling law enforcement in the past when
domestic disputes would take place when S.C. was under the
influence of alcohol. Mother also has insight into the family
problems and is cooperative and willing to enroll in services
in order to address issues at hand. Furthermore, [M]other has
demonstrated willingness to enroll in services by enrolling in
parenting classes on her own.” The social worker noted that
Mother “ha[d] demonstrated she is willing and able to protect
all her children from further harm or risk of harm and [was]
able and willing to cooperate with [the] court and DCFS.”
On June 5, 2020, the juvenile court ordered D.C. and Se.C.
detained from S.C. and ordered the children released to Mother.
C. Jurisdictional Hearing
In additional reports filed in advance of the jurisdictional
hearing on the petition, DCFS reported the details of S.C.’s
criminal history and additional statements from the family and
extended family. These were generally consistent with previous
statements, except that M.G. denied S.C. had ever physically
disciplined him or hurt him on any occasion other than when he
had grabbed him around the neck and choked him. According
to Mother, since DCFS’s intervention, S.C. had slowed down his
drinking. Mother did not believe S.C. had a substance abuse
problem. She denied ever leaving the children in his care while
he was under the influence, stating she was always present.
Mother completed parenting education and was participating
in family preservation services, including individual counseling.
S.C. was living in a friend’s garage and denied continued drug
use, but stated he was unable to test due to his work schedule.
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S.C. had completed a parenting program and had been attending
a domestic violence program for three months.
At the jurisdiction / disposition hearing, the children’s
counsel argued in favor of sustaining all counts in the petition.
The children’s counsel specifically argued that Mother had failed
to protect M.G. by leaving him in S.C.’s care while she went out
of town to cheerleading competitions with A.G., despite knowing
that M.G. and S.C. “do not get along.” The juvenile court found
S.C.’s actions were disciplinary in intent, amended the petition
to reflect this, and sustained all counts as amended.2
The court declared the children dependents of the court
under section 300, subdivisions (b) and (j), ordered D.C. and
2 The sustained allegations of the petition provide in
pertinent part that S.C. “inappropriately physically disciplined
the child M.G. by grabbing the back of the child’s neck and
choking the child”; that “[Mother] knew or reasonably [should]
have known of the inappropriate physical discipline of the
child by [S.C.] and failed to protect the child by allowing [S.C.]
to reside in the child’s home and have unlimited access to the
child”; that “[S.C.] has a history of substance abuse and is a
recent abuser of alcohol, marijuana, cocaine, and Xanax, which
renders [him] incapable of providing regular care of the children.
On prior occasions, [S.C.] was under the influence of alcohol
while the children were in [S.C.’s] care and supervision. . . .
The children [D.C.] and [Se.C.] are of such young age requiring
constant care and supervision and [S.C.’s] substance abuse
interferes with providing regular care and supervision of the
children. [S.C.] has a criminal history of a conviction for DUI
[a]lcohol 0.08 [p]ercent. [Mother] knew of [S.C.’s] substance
abuse and failed to protect the children by allowing [him] to
reside in the children’s home and have unlimited access to the
children.”
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Se.C. removed from S.C.’s custody, ordered the children released
to Mother’s custody, and ordered services for the family. Mother
timely appealed. In her appeal, she challenges the court’s
jurisdictional findings that she failed to protect the children.
Neither Mother nor S.C. challenged the court’s jurisdictional
findings regarding S.C.
D. Post-Appeal Developments
While this appeal was pending, the juvenile court
terminated its jurisdiction over all the children, granted Mother
and S.C. joint legal custody over Se.C. and D.C., and granted
Mother sole physical custody over A.G. and M.G. Mother timely
appealed the court’s exit order.
DISCUSSION
DCFS argues that Mother’s appeal from the juvenile court’s
jurisdictional order should be dismissed as moot. Specifically,
DCFS argues we can no longer grant Mother any effective relief,
because the juvenile court has since terminated jurisdiction over
all four children, restored Mother’s full custody over A.G. and
M.G., and granted Mother and S.C. joint legal and physical
custody of D.C. and Se.C. (See In re E.T. (2013) 217 Cal.App.4th
426, 436 [“[a]n appeal may become moot where subsequent
events, including orders by the juvenile court, render it
impossible for the reviewing court to grant effective relief”].)
But even before the juvenile court terminated jurisdiction,
Mother’s appeal did not present a justiciable issue. In an appeal
from a juvenile court’s jurisdictional order, we consider the
correctness of the overall jurisdictional ruling—that is, whether
the court correctly concluded it had jurisdiction over the children
at issue. (See In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.)
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Here, the juvenile court’s jurisdictional findings based on
S.C.’s conduct have not been challenged on appeal and were
independently sufficient to create jurisdiction over the children.
(See In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 [“[t]he
reviewing court may affirm . . . if the evidence supports the
decision on any one of several grounds”]; In re Alexis E. (2009)
171 Cal.App.4th 438, 451 [same].) Thus, regardless of the
outcome of Mother’s appeal, the court correctly found that it
had jurisdiction over the children, and we “need not consider
whether any or all of the other alleged statutory grounds for
jurisdiction [involving Mother] are supported by the evidence.”
(In re Drake M. (2012) 211 Cal.App.4th 754, 762 (Drake M.).)
Mother argues that we should exercise our discretion
to nevertheless consider the merits of her appeal, because the
“outcome of [the] appeal is the difference between [Mother] being
an ‘offending’ parent versus a ‘non-offending’ parent,” something
that “may have far-reaching implications with respect to future
dependency proceedings.” (Drake M., supra, 211 Cal.App.4th at
p. 763.) We disagree that the potential effects of such a finding
on the facts of this case are inherently so “pernicious” as to alone
warrant an exercise of our discretion. (In re M.W. (2015) 238
Cal.App.4th 1444, 1452; ibid. [a finding “that [the] mother failed
to protect the children from a substantial risk of sexual abuse[ ]
carrie[d] a particular stigma” warranting consideration of an
otherwise nonjusticiable appeal].) Nor has she identified any
specific potential effects the findings may have in future
proceedings. Moreover, the circumstances underlying the failure
to protect allegations can be considered in a future dependency
court proceeding regardless of whether we reverse the finding,
and any future dependency case would need to be based on
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conditions existing at the time such a case is filed. (See In re
Madison S. (2017) 15 Cal.App.5th 308, 330 [“the substance
of the spanking allegation would almost certainly be available
in any future dependency or family court proceeding, regardless
of any determination on our part as to whether it formed an
independent basis for juvenile court jurisdiction”]; In re I.A.
(2011) 201 Cal.App.4th 1484, 1494−1495 [the father “fail[ed]
to suggest any way in which th[e] [jurisdiction] finding actually
could affect a future dependency or family law proceeding,
and we fail to find one on our own. In any future dependency
proceeding, a finding of jurisdiction must be based on current
conditions.”].)
We decline to exercise our discretion to consider the merits
of Mother’s appeal.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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