In re Madison O. CA2/2

Filed 1/26/23 In re Madison O. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re MADISON O. et al., Persons B316842
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No. 21CCJP03609A/B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SILVIA O.,
Defendant and Appellant;
RENE B.,
Respondent.
APPEAL from findings and an order of the Superior Court
of Los Angeles County. Daniel Zeke Zeidler, Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Terence M. Chucas, under appointment by the Court of
Appeal, for Respondent.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey M. Blount, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Silvia O. (mother) appeals from the juvenile court’s
jurisdictional findings (Welf. & Inst. Code, § 300)1 and
dispositional order (§ 361) regarding her daughters, Madison O.
(Madison, born Jan. 2010) and Melany B. (Melany, born Oct.
2018).2
We affirm.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 In her opening brief, mother argues that her appeal only
pertains to Madison because jurisdiction was terminated for
Melany with a family law order granting her father, Rene B.
(Rene), full legal and physical custody. In his respondent’s brief,
Rene argues that we should consider mother’s appeal regarding
Melany as our determination may impact his custody order in the
future. Ordinarily, the termination of dependency jurisdiction
renders an appeal from a prior dependency order moot. But
dismissal for mootness is not automatic; we decide it on a “‘case-
by-case basis.’” (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)
We elect to do so here. (In re D.P. (Jan. 19, 2023, S267429 ___
Cal.5th ___ [2023 Cal.LEXIS 131].)
2
FACTUAL AND PROCEDURAL BACKGROUND
The Family
This family3 has come to the attention of the Los Angeles
County Department of Children and Family Services (DCFS)
multiple times since 1999, with referrals for domestic violence,
physical abuse, caretaker incapacity, and emotional abuse due to
mother driving the children with a restricted license as a result of
her seizure disorder.
Most recently, the family came to the attention of DCFS in
July 2021 after a referral was made alleging that mother
physically abused Madison.
Section 300 Petition
DCFS filed a petition pursuant to section 300, subdivisions
(a), (b), and (j), alleging that mother physically abused Madison
by hitting her in the face with her keys causing visible scratches;
mother placed Madison and Melany in a detrimental and
endangering situation by driving a vehicle while the children
were passengers despite mother suffering from seizures that
prevented her from driving safely; Madison was diagnosed with
Oppositional Defiant Disorder and mother medically neglected
her by failing to ensure that the child took her medication
regularly as prescribed; and mother was unable to appropriately
care for Madison’s mental and emotional problems and to provide
appropriate parental supervision, thereby endangering the
3 Mother has four other children: Cindy O., Leonel L., Jr.
(Leonel), Byron L. (Byron), who are all adults, and Keileen L.
(Keileen), who moved to Belize in 2019 to reside with her father.
Rene is Melany’s presumed father. Marvin B. (Marvin) is
Madison’s father.
3
children’s physical health and safety, placing them at risk of
harm, damage, danger, and medical neglect.
Detention Report
Initial interview with Madison
Madison reported that mother had asked her to get
something from the car, Madison refused to go, and Madison
began mocking mother and calling mother names. Mother went
to the car herself and when she came back, Madison continued
making fun of her. Mother grabbed Madison’s hands, Madison
pushed mother onto the bed and pinned mother down, mother
grabbed Madison by the face, and Madison let go of mother.
Mother denied she scratched Madison’s face with her keys.
Madison said that mother hit first and scratched her face
with the keys. She added that mother hit her head repeatedly
and that she was bleeding from the scratches. After mother
grabbed Madison’s face, she was able to grab mother so that
mother could not scratch her face with her nails, but mother did
scratch her with her keys. Madison reported that she still had
five scratches on the left side of her face, the left and right side of
her nose, and the outer part of her eye. Madison told the social
worker that mother has hit her with a broomstick, hanger, and a
belt in the past; this began after the last dependency case closed.
Although Madison said that mother has left bruises on her in the
past, she was unable to provide a timeline.
Madison said that mother does not physically abuse
Melany, but does scare her with a belt. That said, Madison
disclosed that mother hits Melany on her hand and her buttocks.
Interview with mother
Mother said that she had asked Madison to get some
documents out of her car, Madison did not want to go, and she
4
went to the car herself. At the time, Madison was mocking her,
sticking her tongue out at mother, and said that she did not have
to listen to mother. When mother told Madison to stop mocking
her, Madison pushed mother onto the bed and choked her.
Mother said that she had car keys in her hand, but she did not
scratch Madison; however, she did scratch Madison with her
nails while trying to get Madison off her.
Mother repeatedly said that Madison has behavioral issues;
although a therapist told mother to ignore Madison, that did not
work. Mother disclosed that law enforcement had come to the
home, and they could tell that Madison has behavioral issues;
they told mother that Madison should be placed in boot camp.
Mother said that Madison received Wraparound services, but she
did not improve. According to mother, Madison watched
pornographic videos and would talk to men when they were at
the mall. When asked what Madison’s strengths were, mother
said that Madison did not have any strengths.
Mother said that Madison had been prescribed psychotropic
medication and, despite the prescription being about five months
old, there were still pills in the bottle. When the social worker
pointed out that the prescription was old, mother replied that
Madison did not like taking the medication because of the side
effects. Mother admitted that she did not follow up with
Madison’s psychiatrist regarding the side effects. Mother said
Madison had not taken her medication for a few months.
Mother reiterated that therapy was not helping Madison
because the therapist told mother to ignore Madison’s behavioral
issues and Madison took advantage of this. Because ignoring
Madison did not work, mother believed that she needed to
discipline Madison and not allow her to do anything she wanted.
5
Mother denied hitting Madison; she disciplined Madison by
hiding the remote control and speaking firmly to her, but did not
physically discipline her.
Another interview with Madison
That same day, the social worker again interviewed
Madison. Madison said that mother swung keys at her face after
she refused to get papers out of the car when mother asked.
Madison admitted pushing mother onto the bed, but denied that
she choked mother. The social worker observed scratches, three
superficial lacerations on the upper left cheek, and a small
scratch on Madison’s nose. Madison said mother hit her with a
broomstick and a belt, but could not remember the last time
mother hit her. Madison asked the social worker to place her
with her former foster parent. Madison said she is angry with
mother because she was molested at the age of seven or eight
years old, mother did not believe her, and mother compared
Madison to her sister Melany.
Interview with law enforcement
After the interviews, the social worker consulted with law
enforcement, who said that mother’s account was more credible
based on Madison’s injuries and they deemed mother the victim
and Madison the suspect.
Medical evaluation
The social worker transported Madison and Melany for a
medical evaluation. On the way, Madison started crying, covered
her face, and said that she wanted to drive on the streets instead
of the freeway because she was afraid after mother had been
involved in a car accident. Mother told the social worker that
Madison was trying to manipulate her.
6
The examining doctor opined that the injuries on Madison’s
check were too wide to have been caused by scratches and said
fingernail scratches were thinner. The findings from the forensic
exam concluded that Madison’s injuries were consistent with
physical abuse and the injuries to her left cheek were consistent
with a history of being hit in the face and scratched with keys.
The smaller abrasion under Madison’s left eye and on her upper
lip were consistent with mother’s report that she scratched
Madison with her nails. The examining doctor advised the social
worker that Madison not go home with mother.
Interview with Byron
Madison’s adult sibling Byron arrived to take Madison. He
told the social worker that he was also in foster care and group
homes and he did not want the same thing to happen to Madison.
Byron said that mother may have suffered from postpartum
depression after Madison was born, that Melany was nicely
dressed and Madison was not, that he felt bad for Madison, and
that mother did not treat Melany and Madison equally. When
asked if he was concerned about Madison being abused or
neglected, Byron said “look at the case history.” He did not have
a close relationship with mother and did not see mother or his
siblings often. Byron said that he had an open dependency case
as a nonminor dependent.
While the social worker was speaking to Byron, Madison
told him that mother had a car and had been driving. Madison
shared that she was scared that mother would have another car
accident. Byron appeared shocked to hear that mother was
driving again. He stated that mother should not be driving and
relayed that mother had had a seizure while driving with Byron
7
as a passenger, which resulted in an accident where he suffered a
broken wrist.
Interview with Leonel
On July 21, 2021, adult sibling Leonel arrived and said
that he could take care of Madison. Leonel also did not have a
good relationship with mother, was not involved with mother,
and could not comment on the allegations. Madison left with
Leonel and his partner.
Conversation with mother
While the social worker was driving mother and Melany
home from the hospital, she asked mother about her medical
history and any driving restrictions. Mother became upset and
said that the adult siblings’ paternal grandmother was trying to
ruin her life and called in referrals about mother driving. Mother
said she did not have epilepsy; rather, she had convulsions.
Mother would not say whether she had driving restrictions; she
said she could feel the convulsions before they happened. Mother
would not confirm or deny if she was driving and changed the
subject.
Interview with mother
On July 22, 2021, the social worker contacted mother, who
“rant[ed]” about Madison lying. She also accused the social
worker of having secret conversations with the doctor who
examined Madison and Melany, and accused the social worker of
having a plan to remove the children to make money. Mother did
not take responsibility for any wrongdoing and blamed Madison
and DCFS for believing Madison. Mother said that she did not
believe the doctor was concerned about physical abuse; instead,
she accused the social worker of making this up, and was in
denial about the outcome of the forensic exam.
8
The social worker discussed the concerns with mother
driving when she has seizures; mother said it was not the social
worker’s business to bring up anything from the past or anything
related to her medical condition. When the social worker
explained the child safety concern, mother talked over the social
worker, mocked her, and refused to let the social worker talk.
Mother also displayed erratic behavior by calling different people
during the night to talk about the case, including her 17-year-old
daughter, Keileen. Mother wanted the social worker to have a
FaceTime call with Keileen, which was when the social worker
first learned Keileen was in the home.
Information from prior social worker
The social worker who had handled the voluntary family
maintenance case said she was not surprised that allegations had
been made because referrals were made while she was servicing
the family’s voluntary case. The social worker said that Madison
had a history of alleging physical abuse and recanting the
allegations, and described the child as manipulative. She also
disclosed that mother was “cooperative . . . if you’re . . . doing
what she wants,” but if not, DCFS was “the worst in mother’s
eyes.” When the voluntary case was closing, mother asked the
social worker if the “case can be flagged so that no more
investigation takes place.”
Interview with therapist4
The therapist reported that scheduling appointments with
mother was difficult. She said that Madison had been diagnosed
4 It is unclear from the appellate record whether the
therapist is Madison’s therapist or mother’s therapist or whether
she was working with both mother and daughter.
9
with Oppositional Defiant Disorder and that she had
manipulative behaviors. Madison had not reported any physical
abuse to the therapist; she only stated that mother tapped her on
her head or hand. The therapist said that Madison scratched at
herself and picked at her scabs.
Later, the social worker followed up with the therapist
about mother driving. The therapist reported that on one
occasion, mother said that she had gone to the store and when
the therapist arrived at mother’s home, she saw mother taking
grocery bags from her car and there were no other adults around.
Interview with Madison’s case manager
The case manager for Madison’s afterschool program, Angel
Estrella (Estrella), reported that he had invited Madison to
participate in afterschool activities at times but, due to her
behavioral issues, he did not invite her more often. He also said
that mother called him, constantly complaining about Madison
being outspoken and not following rules. Estrella said that
Madison “cursed him out” the first time he met her and said she
has angry outbursts because her mother did not listen to her. He
said that mother had told him about their altercation, contending
that Madison had laughed at her and strangled her.
Child and Family Team Meeting
On July 26, 2021, mother participated in a meeting with
DCFS staff to discuss the allegations. The social worker noted
that mother did not say anything positive about Madison and had
unrealistic expectations of Madison given her diagnosis of
Oppositional Defiant Disorder; mother wanted Madison to be
“‘normal.’” The parties created an action plan for the family, but
mother refused to add anything about her driving; she said she
no longer had seizures; she only had “convulsions,” and had not
10
had a seizure in a very long time. According to mother, her
doctor said that she no longer had the same medical issues.
Mother became defensive and said that DCFS was “throwing her
medical issues in her face.” Mother agreed to provide a letter
from her doctor but never did.
On July 26, 2021, the children’s social worker again spoke
to the prior social worker, who said that mother did not have a
car when she was servicing the case. Intead, mother’s friends
gave her rides or she used a transportation service. She added
that mother had a well-documented history of seizures.
On July 28, 2021, the social worker advised mother that
DCFS would be seeking removal of Madison and Melany.
On July 30, 2021, the social worker interviewed
Keileen. Keileen was worried about her siblings being removed
from mother’s care. Keileen could not address the allegations,
but said that Madison had told her that mother had gotten a car
a month ago, even though mother said she was not driving.
DCFS advised the juvenile court that there were 12
previous investigations of physical abuse, but none was
substantiated because Madison would report physical abuse and
then recant her statements. The concern was that, because of
Madison’s behavioral issues, she was at high risk of physical
abuse by mother. The social worker recommended that the
juvenile court detain the children from mother’s care.
Detention Hearing (Aug. 9, 2021)
After entertaining oral argument, the juvenile court found
that there was a substantial danger to the children’s physical and
mental health and that there were no reasonable means to
protect the children without removing them from mother’s
11
custody. The juvenile court ordered that mother have no contact
with Melany’s father.
Jurisdiction/Disposition Report
The October 18, 2021, report includes a long-documented
history of referrals involving the family, beginning in 1999
through 2021.
Interview with Madison
On September 8, 2021, the dependency investigator
interviewed Madison regarding the allegations. She did not like
living with mother because she had to take care of her sister and
mother forced her to clean.
With regard to the allegation of physical abuse, Madison
confirmed that mother scratched her face and pulled her hair and
described the altercation. Madison denied choking mother.
Madison said that she had five scratches on her left cheek from
mother’s nails, and she reported that mother had hit her with
keys. Madison said that mother telephoned her brother, her
therapist, and the afterschool program case manager. Madison
said she and mother have had other fights in the past, they do
not have a healthy relationship, and they take their anger out on
each other. Madison did not feel safe because mother had had a
car accident that year with her and Melany in the car and she
thought they were going to die. Madison said the car accident
happened when the voluntary case closed after the social workers
stopped coming to the home. Madison was scared to be in a car
because of the accident and because mother has seizures.
Madison reported that after Keileen left, mother started
hitting her with a broom or belt. Madison tried telling her school
what was going on, but then lied because mother told her to lie or
Melany would be taken away and if she did not lie, it would be
12
her fault. Madison said she lied because she was raped in a
group home and she did not want anything to happen to Melany.
Madison said mother made her lie in video recordings and made
her lie about Marvin raping her. Madison said that she has lied
so much, “‘[i]t’s getting hard to know when to tell the truth or
lie.’”
Interview with mother
Mother told the dependency investigator that DCFS was
conspiring to remove her children. She claimed that Madison
was watching pornography then said she was watching animals
that were going to have sex. Regarding the altercation she had
with Madison, mother changed her story and said she told
Madison to take a shower, Madison pushed her, threw her on the
bed and grabbed her neck, and mother tried to get Madison off
her. Mother said that she pushed Madison and scratched her left
cheek.
Mother said Madison had psychological and developmental
issues and that she was impulsive and hyperactive. Mother did
not understand why allegations of abuse were still being made.
After all, she denied hitting Madison and had participated in
classes and therapy.
Regarding the allegation that mother was driving knowing
she had seizures and had an accident, mother reported that she
never hit a pole; rather, a car got in her way and she hit the
center divider. In other words, the accident was not her fault.
Mother said that nothing happened to Madison and Melany.
Mother said she did not have seizures or an epileptic problem.
Mother’s car was “‘totaled’” in the accident and she bought
another car.
13
When asked how long she had been suffering from seizures,
mother explained that she had had an operation for a tumor in
her head in 2002 and began having seizures a few months after
the surgery. For the last five years, she had issues with her right
arm, which she would shake. Mother claimed that she no longer
had seizures; she had “‘convulsions.’” She described the
“‘convulsions’” to the investigator, saying that her arm would feel
hot, she “‘space[d] out,’” she would have a blank stare, and she
would lower her head.
Mother claimed that she had a note from her doctor
regarding her seizures, but the doctor put the wrong dates in the
letter. When asked if she was taking her medication as
prescribed, mother confusingly said that she kept the bottle and
reused it when she refilled Madison’s prescription.
With regard to the allegation of medical neglect, mother
said she did not give Madison her psychotropic medication as
prescribed because Madison was “‘always asleep’” and the doctor
told mother to stop giving Madison the medication. Mother said
she last gave Madison her medication in April and took Madison
to therapy and an afterschool program instead. Mother said if
she did not care about Madison, she would not have found
therapy services, Wraparound services, and the afterschool
program.
While the dependency investigator was preparing to leave,
mother rested her chin on her arms and “appeared to space out”
with a blank stare. (Bolding omitted.) She called out to mother
to get her attention and mother fell to the floor. The dependency
investigator called for emergency assistance, and when the
ambulance arrived, the paramedics said that they had had
numerous contacts with mother for her seizures at different
14
locations; some of the firefighters and paramedics knew mother.
Mother declined to go to the hospital. One of the paramedics told
the dependency investigator that he was aware of her medical
diagnosis.
After this incident, mother called the dependency
investigator and asked if she was scared. The dependency
investigator responded that she was concerned, and mother
replied that when she was stressed out, she reacted this way, but
said she did not have a seizure. Mother said that she received
the corrected doctor’s note. The dependency investigator told
mother that she was concerned about mother driving if she
suddenly lost consciousness under stress; mother said driving
was not stressful.
Interview with Melany’s father
On September 9, 2021, the dependency investigator
interviewed Rene about the allegations. Rene said that the
juvenile court ordered mother not to contact him, but she still
did. He reported that mother threatened Madison that if she
contacted social workers, they would take her and Melany away,
and mother would never see them again. He had witness mother
verbally abuse Madison; he stated that Madison was always
mistreated. Rene said that mother’s boyfriend told him that he
(the boyfriend) beat mother’s children. And, Keileen had told him
that mother hit Melany when she was born.
Rene said that mother fainted in the alley once and the
children were with her in a stroller. He also said that mother
slapped Madison on the face, punched her, and beat Madison like
an animal with whatever she could. Mother had also hit Melany
in his presence with her hands.
15
With regard to the allegation that mother placed the
children at risk by driving when she suffers seizures, Rene said
that he was worried about mother driving because she was told
numerous times not to drive, but she drove anyways and had had
an accident. He also reported that mother suffered a burn last
year and mother told him a homeless man threw acid on her;
however, the apartment manager told Rene that mother was
burned when she was cooking and had a seizure. Rene said that
mother does not accept that she places the children at risk.
Regarding the allegation of medical neglect, Rene did not
view Madison as “‘crazy,’” and mother wanted others to think
Madison was sick “‘to get money.’” Mother was happy when she
was able to collect social security benefits for Madison.
Interview with Madison’s father
On September 16, 2021, the dependency investigator
interviewed Marvin about the allegation of physical abuse. He
said that mother had told him that she and Madison fought about
a phone, and Madison hit her and held her by the neck.
With regard to the allegation that mother drove the
children when she suffered seizures, Madison’s father said
Madison told him that she was scared of cars because of
accidents.
Regarding the allegation that mother medically neglected
Madison, her father said it was mother’s choice because Madison
was in her care.
Marvin also said that mother told him about her burn, but
she claimed that the man who rented her a house had burned
her.
16
Last Minute Information for the Court
On October 8, 2021, DCFS provided the juvenile court with
a copy of the Traffic Crash Report documenting mother’s May 19,
2021, car accident.
DCFS reported that mother visited Madison and Melany,
but mother did not give Madison the same affection as Melany,
she arrived late to visits, talked about the case to the children,
berated the social worker, or she was on her phone. The
dependency investigator reported that Madison admitted that
she stole something from the social worker’s car and that she
purposely hurt Melany by either biting or pinching her so that
the social worker would think Melany was being abused in her
father’s home.
DCFS filed an additional Last Minute Information for the
Court Report on October 15, 2021, updating the court on mother’s
visits. Mother had had a visit with Melany and wanted to change
Melany’s clothes in public. When the social worker asked mother
not to do this, mother contacted 911 claiming that a “‘male’” was
harassing her and Melany at the park; she did not tell the 911
operator that the “‘male’” was a DCFS social worker. Mother
pulled a random stranger aside to talk about the case and when
the individual saw the DCFS social worker, the person dismissed
her. Mother also reported that she was sick but would not
submit to a COVID test and stopped the visits. DCFS
recommended that mother’s visits be monitored at the DCFS
office.
Adjudication Hearing (Oct. 18 & 19, 2021)
The juvenile court received various exhibits into evidence
and took judicial notice of all documents and orders from the
17
cases concerning mother. It did not admit mother’s documents
into evidence.
After considering all of the evidence and the parties’
arguments, the juvenile court said that its biggest concern was
that mother did what was needed when her voluntary case was
open with DCFS and as soon as the case was going to close,
mother stopped following through. It also expressed concern with
mother’s behavior in general. Thus, it sustained the allegations
as pled and/or amended the allegations to conform to proof.5
Disposition Hearing (Oct. 19, 2021)
Turning to disposition, the juvenile court found by clear
and convincing evidence that there was a substantial danger and
risk of detriment should the children remain in mother’s home.
Regarding Madison, it also found that she could not be safely
placed in Marvin’s home; thus, she remained placed with Leonel.
Melany was placed in Rene’s custody, and the juvenile court
terminated jurisdiction as to her with a custody order in place.
Appeal
Mother timely filed a timely appeal.
DISCUSSION
I. Standard of review
As the parties agree, we review the juvenile court’s
jurisdictional findings and dispositional order for substantial
5 The juvenile court sustained counts a-1 (physical abuse of
Madison), b-1 through b-3 (physical abuse of Madison,
endangering the children while driving, failure to ensure that
Madison takes her prescribed medication), and j-1 and j-2
(Melany is at risk of harm as a result of mother’s physical abuse
and medical neglect of Madison).
18
evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 574, overruled
in part by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010,
fn. 7; In re A.S. (2011) 202 Cal.App.4th 237, 244, overruled in
part by Conservatorship of O.B., supra, at p. 1010, fn. 7.)
Substantial evidence is evidence that is reasonable in nature,
credible, and of solid value. (In re Alexzander C. (2017) 18
Cal.App.5th 438, 446, overruled in part by Conservatorship of
O.B., supra, at p. 1010, fn. 7; In re Savannah M. (2005) 131
Cal.App.4th 1387, 1393.) “[W]e view the record in the light most
favorable to the juvenile court’s determinations, drawing all
reasonable inferences from the evidence to support the juvenile
court’s findings and orders.” (In re Yolanda L. (2017) 7
Cal.App.5th 987, 992.) “We do not reweigh the evidence, evaluate
the credibility of witnesses, or resolve evidentiary conflicts.
[Citation.]” (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
As the appellant, mother must establish that the
challenged rulings are not supported by substantial evidence.
(See In re R.V. (2012) 208 Cal.App.4th 837, 843.)
That said, “when a heightened standard of proof applied
before the trial court, an appropriate adjustment must be made
to appellate review for sufficiency of the evidence.”
(Conservatorship of O.B., supra, 9 Cal.5th at p. 1010.) “In
general, when presented with a challenge to the sufficiency of the
evidence associated with a finding requiring clear and convincing
evidence, the court must determine whether the record, viewed as
a whole, contains substantial evidence from which a reasonable
trier of fact could have made the finding of high probability
demanded by this standard of proof.” (Id. at p. 1005.) In other
words, “the clear and convincing standard of proof [has an] effect
19
on appellate review for sufficiency of the evidence.” (Id. at
p. 1010.)
II. Jurisdiction
Mother argues that the juvenile court erred in assuming
jurisdiction over the children because there is insufficient
evidence to support the sustained counts.6
A. Applicable law
Section 300, subdivision (a), authorizes dependency
jurisdiction over a child if the “child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
inflicted nonaccidentally upon the child by the child’s
parent. . . . For purposes of this subdivision, a court may find
there is a substantial risk of serious future injury based on the
manner in which a less serious injury was inflicted, a history of
repeated inflictions of injuries on the child or the child’s siblings,
or a combination of these and other actions by the parent or
guardian that indicate the child is at risk of serious physical
harm.” (§ 300, subd. (a).) Striking a child with an open hand or
fist, causing bruises, constitutes serious physical harm within the
meaning of section 300, subdivision (a). (See In re Veronica G.
(2007) 157 Cal.App.4th 179, 185–186.) Even evidence of a single
incident of physical harm to a child is sufficient for the juvenile
court to assume jurisdiction under this provision. (In re
Mariah T. (2008) 159 Cal.App.4th 428, 438.)
Section 300, subdivision (b)(1), authorizes dependency
jurisdiction over a child where “[t]he child has suffered, or there
is a substantial risk that the child will suffer, serious physical
6 We agree that mother’s appeal is justiciable.
20
harm or illness, as a result of the failure or inability of the child’s
parent . . . to adequately supervise or protect the child.” (§ 300,
subd. (b)(1).) Three elements are often cited as necessary for a
jurisdictional finding under section 300, subdivision (b)(1):
“(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) ‘serious physical harm or illness’ to the
minor, or a ‘substantial risk’ of such harm or illness.” (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820.) “The third element
. . . effectively requires a showing that at the time of the
jurisdictional hearing the child is at substantial risk of serious
physical harm in the future (e.g., evidence showing a substantial
risk that past physical harm will reoccur). [Citations.]” (In re
Savannah M., supra, 131 Cal.App.4th at p. 1396.)
“[T]he court may . . . consider past events when
determining whether a child presently needs the juvenile court’s
protection. [Citations.] A parent’s past conduct is a good
predictor of future behavior. [Citation.] ‘Facts supporting
allegations that a child is one described by section 300 are
cumulative.’ [Citation.] Thus, the court ‘must consider all the
circumstances affecting the child, wherever they occur.’
[Citation.]” (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
Section 300, subdivision (j), authorizes dependency
jurisdiction over a child whose “sibling has been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (i), and
there is a substantial risk that the child will be abused or
neglected, as defined in those subdivisions. The court shall
consider the circumstances surrounding the abuse or neglect of
the sibling, the age and gender of each child, the nature of the
abuse or neglect of the sibling, the mental condition of the parent
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or guardian, and any other factors the court considers probative
in determining whether there is a substantial risk to the child.”
B. Analysis
Applying these legal principles, the evidence supports a
finding that Madison suffered both nonaccidental (§ 300, subd.
(a)) and accidental (§ 300, subd. (b)) injuries when mother hit her
in the face with keys and scratched her. Even with law
enforcement’s conclusion that Madison, not mother, was the
perpetrator of the injuries, the doctor who examined the child
concluded that “the injuries on . . . Madison’s left cheek [were] too
wide to have been caused by scratching” and the findings were
consistent with physical abuse. Further, “[p]hysical findings on
the child’s left cheek are consistent with [Madison’s] history of
being hit in the face/scratched with keys. Smaller abrasion under
the left eye and on upper lip are consistent with mom’s reported
history of scratching the child.”
And, there was evidence that Madison was facing a
substantial risk of recurring physical abuse. Apart from the
incident that led to the dependency referral, Madison reported
that mother hit her on numerous occasions, including with a belt
and broom.7 Rene also reported that he witnessed mother
mistreating her children. In fact, she was verbally abusive to
Madison, and mother had slapped Madison’s face and punched
her.
7 Mother asks us to reject this evidence, pointing out that
Madison was manipulative and suffers from angry outbursts.
The juvenile court was free to credit Madison’s testimony and
disregard evidence that called her testimony into question. (In re
Dakota H., supra, 132 Cal.App.4th at p. 228.)
22
Statements from Madison’s adult siblings, Byron and
Leonel, bolster the juvenile court’s findings. When interviewed,
Byron said that mother did not treat Madison the same as she
treated Melany. When asked if he was concerned about Madison
being abused or neglected, Byron told the social worker to look at
the family’s case history. And, Byron noted his lack of a close
relationship with mother.
Leonel echoed Byron’s comments, saying that he
understood the concerns for abuse, he did not have a good
relationship with mother, and he was not involved with mother.
Mother’s reliance upon In re Emily L. (2021) 73
Cal.App.5th 1 is misplaced. That case involved a single physical
altercation between a mother and her teenage daughter. (Id. at
p. 16.) Under these circumstances, and the fact that the teenager
“had turned her life around,” the Court of Appeal reversed a
juvenile court’s jurisdictional finding under section 300,
subdivision (b). (In re Emily L., supra, at p. 15.) In so doing, the
court noted that “there was . . . no evidence that a violent
altercation . . . would occur again.” (Id. at p. 16.) “Given the lack
of substantial evidence of any risk of future harm to [the child] at
the time of the jurisdictional hearing,” the court held that the
juvenile court “erred in assuming jurisdiction over this action.”
(Id. at p. 17.)
In contrast, as set forth above, the incident between
Madison and mother was not a single incident unlikely to recur.
There is ample evidence that Madison was subjected to ongoing,
numerous acts of physical abuse by mother.
Urging us to reverse, mother argues that, during the
voluntary family maintenance case, the family received services
and no abuse occurred during that period. However, Madison
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said that when the voluntary maintenance case was closing and
Keileen went to live with her father, mother began hitting her
again. Madison said that she tried to tell her school, but then
recanted because mother told her to. Furthermore, as the
juvenile court aptly noted, when the voluntary case was going to
close, mother stopped taking care of Madison’s mental health
needs. Thus, the fact that no abuse occurred during the
voluntary family maintenance case period does not compel
reversal here.
Finally, the juvenile court’s finding pursuant to section 300,
subdivision (j), is affirmed. Mother does not challenge that
finding on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
III. Disposition
Mother argues that the evidence fails to support the
juvenile court’s order removing Madison8 from her custody.
A. Applicable law
“Our society does recognize an ‘essential’ and ‘basic’
presumptive right to retain the care, custody, management, and
companionship of one’s own child, free of intervention by the
government. [Citations.] Maintenance of the familial bond
between children and parents—even imperfect or separated
parents—comports with our highest values and usually best
serves the interests of parents, children, family, and community.
Because we so abhor the involuntary separation of parent and
8 As set forth above, mother only objects to the juvenile
court’s order vis-à-vis Madison. Thus, our analysis focuses solely
on Madison. That said, for the same reasons the juvenile court
did not err in removing Madison, the juvenile court properly
removed Melany from mother’s custody.
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child, the state may disturb an existing parent-child relationship
only for strong reasons and subject to careful procedures.” (In re
Kieshia E. (1993) 6 Cal.4th 68, 76.) “The Juvenile Court Law
restricts judicial power to remove a child from the care and
society of even an abusive or abuse-tolerant parent. [Citations.]”
(In re Kieshia E., supra, at p. 77.)
The decision to remove a child from parental custody is
only authorized when a juvenile court finds, by 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); In re H.E. (2008) 169 Cal.App.4th 710, 718.) The
focus of the statute is on averting harm to the child. (In re
Alexzander C., supra, 18 Cal.App.5th at p. 451.)
“The juvenile court has broad discretion to determine what
would best serve and protect the child’s interest and to fashion a
dispositional order in accordance with this discretion.
[Citations.]” (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103–
1104.)
B. Analysis
Applying these legal principles under the appropriate
standard of review, we conclude that ample evidence supports the
juvenile court’s finding that Madison would have been at
substantial risk of serious physical harm if returned to mother.
As set forth above, this family was referred to DCFS following a
violent altercation between Madison and mother. And, Madison
reported that this was not the only time that mother hurt
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Madison. Madison reported to the social worker that mother hit
her on numerous occasions, including with a belt and broom.
Rene confirmed Madison’s statements; he had seen mother
verbally and physically abuse Madison. Under these
circumstances, we agree that Madison cannot be returned to
mother’s custody safely.
Mother’s argument on appeal focuses on Madison’s
behavioral issues, the services Madison received, and Madison’s
failure to make progress. But placing the blame on Madison does
not erase the risk of harm to her. Notably, Madison has been
diagnosed with a disorder characterized by the behaviors that
mother faults her for but failed to assist her with treatment (i.e.,
ensuring she took her prescribed medication). Because mother
neglected to help Madison with her medical issues, Madison
cannot be safely returned to her.
In re M.V. (2022) 78 Cal.App.5th 944 does not compel a
different conclusion. In that case, the children were removed
because the trial court found the parents were in denial about the
sustained allegations. (Id. at p. 957.) The Court of Appeal
reversed the removal order, noting that the social worker had
testified, without qualification, that there was no safety risk to
placing the children with their father. (Id. at p. 961.) And, the
father had exceeded all expectations in his parenting and
domestic violence classes. (Id. at p. 963.)
In contrast, in this case, mother directs us to no evidence in
the appellate record that shows that Madison and Melany could
be safely returned to her custody. And, unlike the father in In re
M.V., mother had been offered “many years of services to help
ameliorate the causes that continue to bring her and her children
to the attention of DCFS,” but had not made any progress.
26
Furthermore, mother’s issues were not limited to Madison;
mother has complex relationships with all of her children, she
continues to disobey the juvenile court’s orders and fails to
acknowledge her medical condition. As DCFS noted in its
jurisdiction/disposition report: “None of the services that [DCFS]
has offered since 2009-2021 to the mother or the programs she
ha[s] participated in have mitigated the risk, as she continues to
come to the attention of DCFS for the same causes.”
DISPOSITION
The juvenile court’s jurisdictional findings and
dispositional order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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