In re Noah P. CA2/5

Filed 8/20/20 In re Noah P. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re NOAH P., a Person Coming B302224
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No.19CCJP05681)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Mary Kelly, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
________________________
Mother appeals from the juvenile court’s exercise of
jurisdiction over her 16-month-old son based on an incident when
mother’s boyfriend and maternal aunt’s ex-boyfriend exchanged
gunshots in son’s presence. Mother argues substantial evidence
does not support the court’s finding of neglect because her family
was only “the victim of an unforeseeable criminal attack against
them and [her] boyfriend acted in self-defense.”
The Department of Children and Family Services
(Department) cross-appeals from the juvenile court’s disposition
order. The Department argues the court erred in ordering
informal supervision for mother under Welfare & Institutions
Code section 360, subdivision (b) because the evidence
established mother had not followed through with the services
already offered by the Department.1 We find the court’s
jurisdiction order is supported by substantial evidence, and the
court did not abuse its discretion in ordering informal
supervision. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 26, 2019, the sheriff’s department reported to the
Department that mother’s boyfriend (boyfriend) and maternal
aunt’s ex-boyfriend (Gerardo) had fired shots at each other while
son was present. A social worker interviewed mother, who was
18 years old and had previously been a dependent of the juvenile
court. Mother said that on the day of the incident, she had seen
1 Under section 360, subdivision (b), “the court may, without
adjudicating the child a dependent, order that services be
provided to keep the family together under the informal
supervision of the child welfare agency.” (In re N.M. (2011)
197 Cal.App.4th 159, 171.)
All further statutory references are to the Welfare and
Institutions Code.
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Gerardo drive by their home holding a gun. Mother knew that
Gerardo was angry with maternal aunt and had been “stalking
her.” According to mother, Gerardo was a gang member and the
police were looking for him. When she saw Gerardo drive by with
a gun she called the police, but then hung up because the police
were “asking too many questions.” Mother then drove to the
cemetery with maternal aunt, boyfriend, and son.
When they arrived at the cemetery, Gerardo drove up and
said to mother, “I’m strapped up!” displaying his gun. He then
drove off. Mother wanted to leave the cemetery immediately but
deferred to boyfriend and maternal aunt who wanted to stay.
Forty minutes later, Gerardo drove back and fired shots at them.
No one was injured. Mother denied that boyfriend had shot back
at Gerardo or that he was affiliated with a gang. Mother told the
social worker that boyfriend did not have a criminal history.
Maternal aunt told the police that, after Gerardo shot at
them, she saw boyfriend pull out a semi-automatic handgun and
return fire as Gerardo drove away. Boyfriend said, “I shot back, I
shot back!” When law enforcement arrived at the scene of the
shooting, they found shell casings on the ground where boyfriend
had been standing. A bystander also reported to the police that
he had observed two men shooting at each other. From this
evidence, the police concluded some of the shots were fired from
boyfriend’s location.2 According to police records, both Gerardo
2 The District Attorney chose not to file criminal charges
against boyfriend, presumably because boyfriend had a viable
claim of self-defense. This discretionary decision by the District
Attorney does not undermine the sufficiency of evidence to
support a jurisdictional finding in a dependency case where the
burden of proof is preponderance of the evidence.
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and boyfriend were East LA gang members. Boyfriend was on
probation for carrying a loaded firearm in a public place.
Two weeks later, on August 9, 2019, the social worker
spoke with mother again. Mother again denied boyfriend had a
criminal history, but when pressed, admitted he had “ ‘a gun
charge for 2016.’ ” The social worker advised mother to consider
the risk posed by boyfriend “given the prior history related to
weapons and recent incident involving him shooting” at Gerardo.
However, mother subsequently allowed boyfriend to move in with
her and son.
On September 3, 2019, the Department filed a petition
under section 300, subdivision (b). The petition alleged that
mother had endangered son by placing him in the middle of a
shooting. Mother “knew or reasonably should have known that
the male companion possessed a firearm and the mother allowed
the male companion unlimited access to the child.” At the
detention hearing on September 4, 2019, the juvenile court found
a prima facie case that son was a person described by section 300.
Son was released to mother’s custody. Later that month,
boyfriend was arrested for assault with a firearm.3
The jurisdiction hearing was held on November 5, 2019. In
the jurisdiction report, the Department noted that mother had
expressed willingness to cooperate with the Department and had
cooperated with interviews. However, the Department concluded
the future risk of neglect of son was high based on the shooting
incident as well as mother’s decision to allow boyfriend to move in
to the family home. At the jurisdiction hearing, the court found
there was a current risk of harm, and sustained the allegation
under section 300, subdivision (b)(1). The court ordered the
3 The prosecution did not file charges against boyfriend.
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Department to provide family maintenance services to mother
under section 360, subdivision (b). Mother was ordered to
participate in a parenting program and individual counseling.
She timely appealed, and the Department timely filed a notice of
cross-appeal.
DISCUSSION
1. Substantial Evidence Supports the Court’s
Jurisdiction Finding
A child comes within the jurisdiction of the juvenile court
under subdivision (b)(1) of section 300 if, as is relevant here, he
“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.” “ ‘In reviewing the jurisdictional
findings . . . , we look to see if substantial evidence, contradicted
or uncontradicted, supports them.’ ” (In re R.T. (2017) 3 Cal.5th
622, 633 (R.T.).) We “ ‘draw all reasonable inferences from the
evidence to support the findings and orders of the [juvenile]
court’ ” and “ ‘review the record in the light most favorable to the
court’s determinations.’ ” (Ibid.)
In challenging the court’s jurisdiction finding, mother first
argues there is no evidence she “knew or should have known that
[son] would be at risk of harm from this type of attack” which she
describes as “unforeseeable.” However, the record shows that
mother herself understood the risk Gerardo posed and
anticipated the danger. Before mother went to the cemetery, she
saw Gerardo, a known gang member wanted by the police,
driving by her home with a gun in his hand. She knew he was
angry with maternal aunt and had been stalking her. Mother
was sufficiently alarmed that she called the police, although she
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then hung up when the police started asking questions. At the
cemetery later that day, Gerardo flashed his gun to mother in a
threatening manner. Mother wanted to leave at that point,
which suggests she was aware that Gerardo might return—which
he did—but she stayed to please maternal aunt and boyfriend.
This record suggested that mother knew that Gerardo might
shoot at them when she chose to stay at the cemetery that day.
Mother is correct that the “mere possession of a firearm by
an adult does not present a risk of harm to a child ipso facto.”
Mother claims In re C.V. (2017) 15 Cal.App.5th 566 is instructive.
We are of a different mind. In In re C.V., the father was arrested
at the mother’s house and the police found an unloaded firearm
and ammunition in a backpack in the bedroom where the parents
slept with the child. (Id. at p. 568.) The Court of Appeal reversed
a jurisdictional finding over the child, concluding that the
“father’s admitted gang membership and his possession of the
firearm” did not constitute substantial evidence of a risk of gang
retaliation or shoot-outs occurring in the home. (Id. at p. 573.)
Here, by contrast, there was additional evidence that boyfriend
presented the risk of gun violence occurring. Boyfriend was on
probation for carrying a loaded firearm in public, he carried a
loaded handgun with him on an outing with son, he refused to
leave the cemetery when Gerardo came by the first time and
convinced mother not to leave, and he fired shots at a retreating
gang member while son was present.
Lastly, mother argues there was no evidence showing son
remained at substantial risk of harm at the time of the
jurisdiction hearing, which took place several months after the
shooting. We ask only if the juvenile court’s finding was
supported by substantial evidence, and the evidence established
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that child was at risk and mother remained in denial of the
danger posed by boyfriend. Mother continued to deny that
boyfriend had fired shots at Gerardo despite contrary reports by
maternal aunt and a bystander, as well as law enforcement’s
conclusion based on shell casings found at the scene. Mother also
consistently claimed that boyfriend did not have a gun despite
overwhelming evidence to the contrary including a prior arrest
for assault with a firearm weeks before the jurisdiction hearing.
She also denied that boyfriend was a gang member, although the
dependency court could have found otherwise based on the police
report. Mother’s denial of boyfriend’s violent lifestyle was paired
with her failure to take any steps to limit boyfriend’s contact with
son. Finally, mother’s inconsistent reports to the Department
made her both an unreliable witness and a parent in denial. This
was substantial evidence son remained at risk of harm at the
time of the jurisdiction hearing. (In re A.F. (2016) 3 Cal.App.5th
283, 294 [“denial is a factor often relevant to determining
whether persons are likely to modify their behavior in the future
without court supervision”].)
2. The Court Did Not Abuse its Discretion in Ordering
Informal Supervision
In its cross-appeal, the Department argues the juvenile
court abused its discretion when it ordered informal supervision
under section 360, subdivision (b) because mother showed she
was not willing to work with the Department informally. We find
no error.
“Once the juvenile court finds jurisdiction under section
300, it must adjudicate the child a dependent unless the severity
of the case warrants nothing more than Agency’s supervision of
family maintenance services. Under section 360, subdivision (b),
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if appropriate, the court may, without adjudicating the child a
dependent, order that services be provided to keep the family
together under the informal supervision of the child welfare
agency. (§§ 360, subd. (b), 301; Cal. Rules of Court, rule
5.695(a)(2).)”4 (In re N.M., supra, 197 Cal.App.4th at p. 171.)
“Whether to exercise this option under section 360,
subdivision (b), is a discretionary call for the juvenile court to
make; it may opt to do so, but it need not. ‘The court has broad
discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accord with
this discretion.’ [Citation.] As an appellate court, we cannot
reverse the court’s dispositional order absent a clear abuse of
discretion. [Citation.] The appropriate test is whether the court
exceeded the bounds of reason. [Citation.]” (In re N.M., supra,
197 Cal.App.4th at p. 171.)
Our resolution of this issue is largely a function of the
abuse of discretion standard. The Department argues that
mother demonstrated her unwillingness to cooperate when she
refused to drug test, did not make herself available for therapy
assessment, and allowed boyfriend to move in to her home.
Although the Department was critical of her choices, the
dependency court was not so unforgiving. The dependency court
4 Section 360 states: “After receiving and considering the
evidence on the proper disposition of the case, the juvenile court
may enter judgment as follows . . . [¶] (b) If the court finds that
the child is a person described by Section 300, it may, without
adjudicating the child a dependent child of the court, order that
services be provided to keep the family together and place the
child and the child’s parent or guardian under the supervision of
the social worker for a time period consistent with Section 301.”
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reasonably could have concluded that mother’s behavior did not
represent an unalterable refusal to comply with family
maintenance services.
The Department also points to mother’s about-face as to
drug testing. Mother initially told the Department she was
willing to drug test if asked by the Department. The Department
arranged for a drug testing appointment, but mother did not keep
the appointment. She later informed the Department she had
changed her mind and “would not be drug testing at all.” With
these facts in mind, at the jurisdiction hearing, the court declined
to order drug testing on the ground there was not “any evidence
that mother’s taking drugs.” As the record did not indicate that
drugs were a contributing factor to mother’s neglect of son, the
dependency could reasonably have concluded that mother’s
decision should not treated adversely.
The Department also cites to (1) mother’s failure to
“undergo an Upfront Assessment” despite expressing willingness
to participate in mental health services, and (2) her decision to
allow boyfriend to move in despite the Department’s advice that
she limit her contact with him. The Department argues that
these actions “showed she was not willing to work with [the
Department] informally.”
At bottom, early on in the case, mother did not always
follow the Department’s recommendations. The dependency
court was tasked with one of those quintessential judgment calls:
Was mother of the mind to cooperate with the Department during
its six months of supervision under section 360, subdivision (b)?
The Department points to several facts suggesting she may not
have been. The juvenile court apparently found that a different
picture was presented in the jurisdiction report—mother had
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cooperated with interviews, and had expressed willingness to
participate in services. The court found in mother’s favor on this
point, and did not abuse its discretion in doing so.
DISPOSITION
The juvenile court’s orders are affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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