In re S.Y. CA2/8

Filed 6/23/16 In re S.Y. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re S.Y. et al., Persons Coming Under the B267580
Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK93485)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.Y.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Timothy
Saito, Judge. Affirmed in part, dismissed in part.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
Roni Keller, under appointment by the Court of Appeal, for Respondents T.Y. and
S.Y.
******
B.Y. (father) appeals from the jurisdiction and disposition orders entered June 30,
2015. Father contends the juvenile court erred in asserting dependency jurisdiction, in
removing his two minor sons pursuant to Welfare and Institutions Code section 360,
subdivision (c)1, and in improperly delegating authority to the boys’ therapist as to
visitation. During the pendency of this appeal, the juvenile court terminated dependency
jurisdiction and issued an order granting sole physical and legal custody to G.L. (mother),
with no visitation for father. We conclude father’s appeal as to the visitation order is
moot and therefore dismiss that portion of the appeal. As to father’s remaining
arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father and mother were never married, but lived together and had two sons, T.Y.
and S.Y. In the spring of 2015, T.Y. was 15 years old, and S.Y. was 11.
On March 5, 2015, the family came to the attention of the Los Angeles County
Department of Children and Family Services (Department) based on a report from mother
that she feared father had intentionally killed the family dog in front of the two boys. The
family had a prior history with the Department, including a 2012 case in which T.Y. and
S.Y. were detained and placed with the maternal grandmother due to domestic violence
between father and mother. That case terminated with the court granting physical
custody to mother, and joint legal custody of the boys to mother and father.
The Department social worker visited the family home on March 10, 2015, and
spoke with mother and both boys. Mother explained that her older son, T.Y., had called
her at work a few days before and told her the dog was dead. She suspected father had
killed it. Mother said father visited the home frequently but did not live there because he
had previously been ordered out of the home by the court. S.Y., who needed to be
reassured by the social worker he was not in any trouble, only spoke with the social
worker briefly, saying he did not see or hear anything at the time the dog was killed. His
1 All undesignated section references are to the Welfare and Institutions Code.
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older brother, T.Y., seemed agitated and did not want to speak with the social worker, but
said that he already told the police that father had killed the dog. T.Y. also told the social
worker that father did live with them.
On April 10, 2015, the social worker made an unannounced visit to the home and
father answered the door. Father admitted he lived there and invited the social worker in.
When the social worker told father the juvenile court had ordered him to move out of the
home in 2013, father responded by saying he believed he was allowed to move back in
when that case was terminated. Father admitted he killed the dog, but claimed to have
done so accidentally and that neither of the boys had been present. The social worker
asked father why he had lied to the police about how the dog died and father said he did
not want to go to jail.
The social worker interviewed mother again and asked why she had lied about
father living in the home. Mother said that after the last dependency case had been
terminated, father gradually moved himself back into the home. Mother said she tried to
make him leave, but he refused. Mother changed the locks to the door several times, but
father was “somehow” always able to get a duplicate key. Mother expressed fear of
father and worried about the safety of the children, saying father constantly “picks
fights.” Mother asked the social worker to help her with getting father to leave the home.
The social worker spoke with father and he agreed to collect some belongings and
leave the home. The social worker then went to the hardware store and helped T.Y.
change the lock to the front door.
On April 13, 2015, father went to S.Y.’s school. Mother believed he attempted to
take S.Y. from the school, but was unable to do so.
On April 16, 2015, mother and the two boys participated in a Child and Family
Team engagement meeting with the Department. Mother reported that since their last
conversation, S.Y. had revealed that father had been hitting him the last several months.
S.Y. said he had not told her about it before because father had threatened to hurt him and
kill the whole family if he said anything about it. Mother confirmed she had seen several
bruises on S.Y. over the last few months and had asked him about them, but he claimed
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he had fallen and gotten injured at school. Mother also reported that S.Y. had disclosed
he saw what happened to their dog and expressed fear of father.
The social worker re-interviewed S.Y. in private and asked him if he knew
anything about how his dog died. S.Y. appeared nervous and anxious. S.Y. said his
father threatened to hurt them if anyone told the police or the Department what had really
happened to the dog. S.Y. said he had been watching videos in his room, when he saw
father go out onto the balcony where the dog was. He heard the dog crying loudly and
saw his father hitting the dog repeatedly with a metal pole. There was blood pooling
around the dog. S.Y. ran to T.Y.’s room to tell him what was happening. Father
eventually picked up the dog and took it somewhere and washed away the blood on the
balcony.
S.Y. expressed fear of father and confirmed to the social worker that father had
been hitting him over the last few months, usually causing bruises. S.Y. said he had been
telling his mother he got hurt at school because father had threatened to hurt him even
worse if he told anyone about the hitting. S.Y. expressed fear that father would come to
his school to try to take him.
Mother reported that on April 6 father had grabbed her by the neck and choked her
in front of S.Y. She also reported that despite having left the home on April 10 at the
direction of the social worker, father was nevertheless constantly calling her and the
maternal grandmother, and threatening acts of violence against the whole family. Mother
said the calls to her occurred daily and were from a new phone number she did not
recognize. Sometimes father would say “I am going to bomb everyone.” Mother said
she had filed a police report with the Monterey Park Police Department. Mother gave the
phone number to the social worker. When the social worker called the number, father
answered. The social worker gave father notice of the detention hearing and that a
petition was going to be filed to remove the children from his custody.
On May 5, 2015, the children were detained pursuant to a removal order, and were
released to mother’s custody.
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On May 8, 2015, the Department filed a petition pursuant to section 300,
subdivisions (a), (b) and (j). The petition alleged physical abuse of S.Y. resulting in
bruising and physical marks, past domestic violence by father against mother including
attempted strangulation, and ongoing violent behavior and threats of violence by father
including killing the family dog by hitting it with a metal pole, which placed both S.Y.
and T.Y. at risk of physical and emotional harm.
The Department sought a restraining order against father with mother’s assistance.
In her supporting declaration, mother detailed father’s violent behavior and regular
threats of further violence, including the incident on April 6, 2015, in which he attempted
to strangle her in front of S.Y. She said father admitted to her that he beat the dog to
death because he was in a bad mood and also to get back at her for initiating the prior
dependency proceeding. Mother explained that father repeatedly threatened both her and
the boys, saying he would kill them if they told the truth to the police about what
happened to the dog. Mother said that father had always been verbally abusive, and had
physically attacked her in the past, including kicking her while she was pregnant and
causing a miscarriage, but she believed his violence had recently “escalated.” Mother
said she feared father would kill her and the boys. Mother requested a formal order
directing father to move out of the family home, but acknowledged that father had left the
home with some things on April 10 after the social worker told him to leave.
At the May 27, 2015 hearing on the restraining order, the Department submitted
on the reports and mother’s declaration. Father testified and denied all wrongdoing.
Father denied having attempted to strangle mother, claiming instead that he was giving
her a “massage.” As for the dog, father said it died accidentally when it moved its head
in the way of the broom that the father was using to punish it for relieving itself in the
garage.
After hearing argument, the court explained that it found mother’s supporting
declaration to be detailed and compelling, and corroborated by the statements of the boys
and the Department’s report. The court also noted it found father’s testimony to lack
credibility. The court granted a three-year permanent restraining order directing father to
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stay 100 yards away from mother, S.Y. and T.Y., their home, the boys’ schools, and
mother’s place of employment. The restraining order further provided that father must
not “[m]olest, attack, strike, stalk, threaten, sexually assault, batter, harass, destroy the
personal property of, or disturb the peace” of mother, S.Y. and T.Y. The order precludes
any visitation by father except for contact with the boys through “conjoint counseling
only” when it was deemed appropriate. Any modifications to the visitation order would
have to be addressed to the court.
In the jurisdiction and disposition report, the Department reported on the prior
2012 dependency proceedings in which mother disclosed that father had blocked her and
the boys from entering the home, demanded money from her, and threatened to kill her
and the boys. When mother told father she was calling the police, father told her to “[g]o
ahead” as he was not afraid of the police. The report also documented that in further
discussions with T.Y., he disclosed that he had been regularly hit by father when he was
S.Y.’s age. T.Y. said he heard his father killing their dog. He was upset about it and said
he no longer wanted to see father. He had hoped father would change after the last
dependency case, but he did not.
The report also detailed further discussions between the social worker and mother.
Mother said that after father killed their dog, he said “so what,” and told her she was a
“stupid bitch” because she did not know he had killed the previous dog by cutting off its
head and throwing it in the trash. Mother called father a “monster.” She said that when
father had tried to strangle her, he also snatched her phone away and broke it, saying
“DCFS cannot help you.” She expressed being in constant fear of father and that she
always tried to stay alert for his possible appearance. T.Y. helped mother install a
security camera system in their home so they can monitor what is going on outside.
Mother reported she saw father driving on their street in front of their home. Mother
tried to take pictures, but could not get a good shot. Mother showed a few pictures of
father’s car on her cell phone to the social worker. T.Y. corroborated mother’s
statements that father was driving by their home, as well as his school.
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The social worker reported that in speaking with father he denied all wrongdoing,
saying mother turned the boys against him, made things up and was mad at him for not
making enough money. He did admit he killed the dog but said he did so by accident
trying to punish it for making a mess in the garage. Father said he worked hard, was tired
all the time, and was too tired to do these “stupid things” that mother and the boys
reported. He was angry because he did not have a place to stay and did not like staying in
a motel.
At the contested adjudication hearing on June 30, 2015, the court sustained the
allegations, as amended, and declared both S.Y. and T.Y. to be dependents pursuant to
section 300, subdivisions (a), (b), and (j). The court found by clear and convincing
evidence that the boys were at substantial risk of harm if returned to father. The court
identified the permanent plan as placement of the boys with mother. The court ordered
services for mother, the boys and father, including individual counseling and conjoint
counseling if deemed appropriate. The services ordered were consistent with the case
plans submitted by both mother and father.
The court ordered no visitation for father, except for monitored visitation through
“conjoint counseling only” when deemed appropriate, consistent with the restrictions on
visitation set forth in the May 27, 2015 restraining order.
This appeal followed. After the filing of the appeal, the juvenile court terminated
dependency jurisdiction. The Department filed a motion to augment the record and
requested this court to take judicial notice of the juvenile court orders granting sole legal
and physical custody of S.Y. and T.Y. to mother with no visitation for father, and
terminating dependency jurisdiction. We granted the motion and take judicial notice of
the juvenile court’s orders of February 17 and February 19, 2016.
On April 1, 2016, the minors filed a letter brief joining in the brief filed by the
Department.
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DISCUSSION
1. The Jurisdiction Order
Father contends the court erred in asserting dependency jurisdiction. He argues
there is insufficient evidence supporting any of the allegations under section 300,
subdivisions (a), (b) and (j). We disagree.
We review jurisdictional orders for substantial evidence in a light most favorable
to the juvenile court’s findings. (In re K.S. (2016) 244 Cal. App. 4th 327, 337; accord, In
re Heather A. (1996) 52 Cal. App. 4th 183, 193.) The record contains solid evidence in
support of the court’s assertion of jurisdiction over the two minor boys.
Jurisdiction under section 300, subdivision (a) may be asserted where the juvenile
court finds, by a preponderance of the evidence, that 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.” Under subdivision (b), it may be asserted where the
“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 . . . to adequately
supervise or protect the child.” And, under subdivision (j), jurisdiction may be asserted
where the “child’s 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.”
Father attempts to downplay the seriousness of his behavior, arguing there was no
ongoing risk of harm and that the restraining order issued May 27, 2015, adequately
protected S.Y. and T.Y. Father relies in part on In re Daisy H. (2011) 192 Cal. App. 4th
713 in which jurisdictional findings were reversed where the evidence showed only one
2-year-old incident of domestic violence between the mother and the father who no
longer lived together, but shared custody of their minor children. The court found such
evidence failed to demonstrate a current risk of harm. (Id. at p. 717.)
The record here involves far more serious and aggravated facts. In the spring of
2015, father had repeatedly inflicted bruises on S.Y. by hitting him; conduct that went
undetected for months because father threatened S.Y. with even greater harm or violence
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against other family members if he said anything about the hitting. T.Y. had been
similarly abused by father when he was S.Y.’s age. Father had a long history of physical
and emotional abuse of mother, including serious incidents that occurred in the presence
of one or both of the boys. Shortly after the initial referral that precipitated this
proceeding, father attempted to strangle mother in front of S.Y., and snatched her phone
from her, breaking it, telling her that the Department could not help her. Father beat the
family dog to death in the presence of S.Y., lied about it to the police, and threatened
mother and both boys about telling the truth to the police or the Department about what
had actually happened. Father made daily threats of violence to mother, and continued to
stalk and harass the family, driving by their home and the boys’ schools after moving out
of the family home on April 10. Despite the Department’s prior intervention in 2012 and
services provided to father, he continued to engage in behavior that, as described by
mother, was escalating as of March 2015. Father ignored court orders and told mother he
was not afraid of the police or the Department, and dwelt in the home whenever he
pleased. Moreover, father continued to deny all wrongdoing and showed no indication
that he would curtail or modify his aggressive and violent behavior. The record contains
abundant evidence of past harm to S.Y. and a substantial risk of future harm to both S.Y.
and T.Y., warranting the court’s exercise of jurisdiction. (In re R.C. (2012) 210
Cal. App. 4th 930, 944.)
2. The Removal Order
Father contends there is no evidence he was a custodial parent at the time the
petition was filed and therefore, there was no statutory basis for the court’s removal order
under section 361, subdivision (c). Alternatively, father argues that even if the court had
the authority to issue a removal order as to him, the order is not supported by substantial
evidence.
We first address the Department’s contention the issue was forfeited by father’s
failure to object in the juvenile court. The record contains no objection by father on the
grounds he was a noncustodial parent at the time the petition was filed. Whether the
juvenile court properly applied its statutory authority to order removal under section 361,
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subdivision (c) presents a question of law for which forfeiture is not automatic. We may
exercise our discretion to address the issue. (See, e.g., In re Dakota J. (2015) 242
Cal. App. 4th 619, 630; In re Jonathan P. (2014) 226 Cal. App. 4th 1240, 1252.)
Father argues that since he moved out of the home on April 10 at the direction of
the social worker, he was not a custodial parent three weeks later when the petition was
filed. Father asks us to ignore the reality that he entered and lived in the family home at
his pleasure, despite changed locks, court orders and risk of police intervention. For all
practical purposes father resided in the family home at the relevant time and was the
offending parent that precipitated the Department’s intervention. By his own admission,
father was living in the family home up until April 10, 2015, when the social worker told
him to leave the home while investigating the current referral. After leaving the home on
April 10, father went to a motel, and there is nothing in the record indicating he found a
permanent alternative living arrangement or intended to do so. Moreover, father
continued to stalk and harass mother and the boys, constantly appearing outside the
home, driving on the street, going by the boys’ schools, and making threatening phone
calls to mother on a daily basis. Father told mother he did not fear the police or the
authority of the Department. Mother, S.Y. and T.Y. were under constant threat of father
returning to the home and once again imposing his presence there. There is no reason to
believe father would not return to the family home to perpetrate further violence against
the boys and their mother. We do not hesitate to find father was a custodial parent from
whom the children required the protection of the dependency court.
The Department argues that father’s alternative contention, that the removal order
is not supported by substantial evidence, was also forfeited. However, “[w]e review a
dispositional order removing a child from parental custody for substantial evidence.” (In
re D.G. (2012) 208 Cal. App. 4th 1562, 1574; accord, In re A.R. (2015) 235 Cal. App. 4th
1102, 1116.) A claim that the evidence is insufficient to support a dispositional order “is
not forfeited even if not raised in the dependency court.” (In re R.V., Jr. (2012) 208
Cal. App. 4th 837, 848.) We therefore address the merits.
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Under section 361, subdivision (c)(1), a dependent child shall not be taken from
the physical custody of his or her parents unless the 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.” “ ‘ “The parent need not be dangerous and the minor need not have
been actually harmed before removal is appropriate. The focus of the statute is on
averting harm to the child.” [Citation.] The court may consider a parent’s past conduct
as well as present circumstances.’ [Citation.]” (In re A.S. (2011) 202 Cal. App. 4th 237,
247, italics added.)
As explained above in part 1, the record is replete with evidence of father’s
increasingly violent and threatening behavior. The record contains ample evidence
supporting the court’s determination that the only means of averting further harm to S.Y.
and T.Y. was to remove them from father’s custody. (In re D.G., supra, 208 Cal.App.4th
at p. 1574.)
3. The Visitation Order
Father contends the court’s dispositional order regarding visitation improperly
delegated authority to the therapist to set the visitation schedule. The Department argues
the order was lawful, but that even assuming there was error, the contention has been
rendered by moot by the juvenile court’s termination of jurisdiction during the pendency
of this appeal.
We agree the juvenile court’s termination of jurisdiction has mooted father’s
appeal of the visitation order. (In re N.S. (2016) 245 Cal. App. 4th 53, 60 [“critical factor
in considering whether a dependency appeal is moot is whether the appellate court can
provide any effective relief if it finds reversible error”].) There is no longer any
dependency proceeding in which visitation is at issue. Mother has been granted sole
physical and legal custody of both minor boys and the three-year restraining order
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remains in effect. Any issues father wishes to raise regarding contact with S.Y. or T.Y.
may be directed to the superior court in a new proceeding. (§ 362.4.)
Further, even if we concluded the issue was not moot, father failed to object to the
visitation order and therefore forfeited any argument on this ground. Indeed, the record
demonstrates that father acquiesced during the proceedings to visitation being limited to
participation in counseling. At the May 27, 2015 hearing on the restraining order, father
requested that he be allowed contact with the boys in a therapeutic setting. The
restraining order provides that monitored visitation could occur in a therapeutic setting
when deemed appropriate by the therapist. The court’s subsequent visitation order has
the same language to which father agreed in the protective order.
DISPOSITION
The appeal is dismissed in part as to that portion of the court’s June 30, 2015
dispositional order regarding visitation in light of the juvenile court’s termination of
jurisdiction on February 19, 2016.
The balance of the court’s jurisdictional and dispositional orders issued June 30,
2015, are affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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