In re Y.T. CA2/7

Filed 8/28/20 In re Y.T. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re Y.T., et al., Persons Coming B301141
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19CCJP05186)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES, ORDER MODIFYING
OPINION AND DENYING
Plaintiff and Respondent, REHEARING [NO CHANGE
IN APPELLATE JUDGMENT]
v.
R.G.,
Defendant and Appellant.
THE COURT:
The opinion filed on August 12, 2020 and not certified for
publication, is modified as follows:
On page 14: The following sentence is added before the last
sentence of the carryover paragraph that ends Discussion
section A and states, “R.G.’s appeal from the disposition order
regarding Y.T. is moot.”:
And R.G. does not challenge the custody order as to
Y.T., arguing instead that she does not have to
challenge it: “While challenging the underlying
issues [that] created the custody orders, she does not
have to separately challenge the custody orders.”
Appellant’s petition for rehearing is denied.
This order does not change the appellate judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
2
Filed 8/12/20 In re Y.T. CA2/7 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re Y.T., et al., Persons Coming B301141
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 19CCJP05186)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
R.G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, D. Brett Bianco, Judge. Dismissed in part, affirmed in
part, and reversed in part.
Annie Greenleaf, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Kim Nemoy, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
R.G. appeals from the juvenile court’s jurisdiction findings
and disposition order declaring her children, Y.T. and Aaron H.,
dependents of the juvenile court, removing them from her
custody, and placing them with their respective fathers. R.G.
contends substantial evidence did not support the court’s findings
under Welfare and Institutions Code section 300, subdivisions (a)
and (b),1 that R.G.’s mental health and incidents of domestic
violence between R.G. and Aaron’s father placed the children at a
substantial risk of serious physical harm and endangered their
physical health and safety. R.G. also contends that the juvenile
court abused its discretion by declaring the children dependents
rather than ordering informal supervision pursuant to a
voluntary plan under section 360, subdivision (b), and that there
were reasonable means to avoid their removal.
The Los Angeles County Department of Children and
Family Services argues R.G.’s appeal is moot with regard to Y.T.
because the juvenile court terminated jurisdiction over Y.T.
following a custody order. We agree the custody order rendered
moot R.G.’s appeal from the disposition order concerning Y.T.,
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
but because the custody order was based on the juvenile court’s
jurisdiction findings, we reach the merits of her appeal from
those findings. We conclude that, although substantial evidence
did not support the court’s jurisdiction findings under section
300, subdivision (a), substantial evidence did support the court’s
jurisdiction findings under section 300, subdivision (b). With
regard to the disposition order relating to Aaron, we conclude
that the juvenile court did not abuse its discretion in ordering
formal supervision as opposed to a voluntary plan and that
substantial evidence supported the court’s removal of Aaron from
R.G.’s custody.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Department Detains Y.T. and Aaron
R.G. has two children, 15-year-old Y.T., whose father is
Nelson T., and 3-year-old Aaron, whose father is R.G.’s husband,
Antonio H. In 2013 R.G. began receiving mental health services
for “Major Depressive Disorder, Recurrent, Severe with Psychotic
Features . . . and Post Traumatic Stress Disorder.” R.G.’s
symptoms included anxiety, nervousness, shaking, paranoia, and
insomnia. Her treatment included medication and individual
counseling. Antonio supported R.G. by reminding her to take her
medication and taking her to the hospital when her symptoms
became “overwhelming.” R.G. was hospitalized for her mental
health condition approximately five times. R.G.’s mother lived
with the family and cared for Y.T. and Aaron. Antonio said that,
“as a precaution,” neither he nor R.G.’s mother left Aaron alone
with R.G. A neighbor who knew about R.G.’s condition would call
3
Antonio whenever the neighbor had concerns about R.G.’s mental
health.
In March 2019 doctors changed R.G.’s medication, and
Antonio noticed R.G. became “increasingly ‘irritable.’” R.G.
stopped allowing Antonio to accompany her to doctors’
appointments, and she did not take her medication regularly. On
April 1, 2019 R.G. and Antonio argued in front of Y.T. and Aaron
about R.G.’s failure to take her medication. Antonio attempted to
leave the house with Aaron, and R.G. tried to stop him. While
Antonio held Aaron, R.G. scratched Antonio with sufficient force
to rip his shirt. Police arrived and arrested R.G. for willful
infliction of corporal injury (Pen. Code, § 273.5, subd. (a)), but
Antonio did not want to press charges. R.G. blamed Antonio for
her arrest, told him she wanted a divorce, and left the house with
her mother and Y.T. R.G. wanted to take Aaron with her as well,
but Antonio “did not allow her to take him.”
After spending two days with friends, Y.T. went to live with
her father. R.G. and her mother stayed with the friends for a few
days, moved to a shelter, and then lived in a car before returning
to live with Antonio and Aaron in June 2019. R.G. said she
missed Aaron and needed to see him. A week later, on June 18,
2019, a neighbor called Antonio at work and told him R.G. was
walking in the middle of the street, talking to herself and yelling
at dogs. A neighbor also saw R.G. “cleaning the driveway and
loudly talking to herself.” The neighbor called police, but the
responding officers left after they did not find R.G. at home.
When Antonio arrived home, he tried to persuade R.G. to go to
the hospital. R.G. initially agreed to go to the hospital after
dinner, but later she resisted, screamed, and threw objects inside
the house. A neighbor again called the police, who arrived to find
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Antonio restraining R.G. by holding down her arms and legs.
The police placed R.G. on a psychiatric hold and took her to a
hospital, which transferred her to a residential mental health
facility the next day. R.G. remained there for 17 days.
A psychiatric social worker told the Department that R.G.
was crying and “rambl[ing]” incoherently while she was at the
mental health facility. R.G. could not identify her diagnosis, but
said she had not been taking her prescribed medication.
Paperwork from the hospital indicated R.G. had been diagnosed
with “Bipolar Disorder (Manic with Psychotic Features).” The
psychiatric social worker said R.G. accused Antonio of sexually
abusing Aaron and said he was a “‘bad guy,’” but the social
worker “did not know how truthful mother was being.” Antonio
denied all allegations of sexual abuse, and subsequent
assessments of Aaron did not indicate any such abuse.
On July 10, 2019 R.G. returned home, but soon stopped
taking her medication again because she said “it made her ‘heart
beat rapidly’ and caused her to have ‘trouble breathing.’” R.G.
said she and Antonio continued to argue, and she had trouble
sleeping and saw a “shadow” in her room, which she once tried to
stab with a pen. R.G. said Aaron was usually present during her
arguments with Antonio. Six days after R.G. returned home,
Antonio took R.G. back to the hospital where she voluntarily
admitted herself. R.G. returned home again on July 23, 2019.
During an interview with a case social worker on July 24,
2019, R.G. said she did not know why Antonio wanted to take her
back to the hospital. R.G. also said Antonio and her neighbors
were “‘out to get’” her and were “plotting to take away Aaron from
her and kick her out of the home.” R.G. said that Antonio had
never physically assaulted her before attempting to force her to
5
go to the hospital, but that he touched her “in an effort to get her
to ‘hit’ him.” R.G. said that she filed for divorce in May 2019, but
that she thought the court dismissed her petition because she
was hospitalized and missed a court date. R.G. also requested a
restraining order against Antonio in May 2019, which Antonio
successfully opposed.
R.G. said she has a “history of struggling with anxiety” and
was enrolled in outpatient mental health services that included
medication management. She failed to follow up with her doctor
after her most recent discharge, however, because she said she
had no transportation, yet she acknowledged she could take a bus
to the facility. She also said her doctor told her to take her
medication “as needed,” even though the prescription indicated
she should take the medication every day. R.G. said she believed
“God would ultimately ‘cure her’ and relied on prayer.” She said
she had been hospitalized in the past when her symptoms had
“become overwhelming,” but her more recent hospitalizations
occurred because Antonio “yells at her and calls her ‘crazy.’”
On August 9, 2019 the Department detained Y.T. and
Aaron from R.G.’s custody, and R.G. made plans to leave the
family home. Other than the April 1, 2019 and June 18, 2019
incidents, neither Antonio nor R.G. reported any instances of
domestic violence, nor did either of them have a criminal record
or suffer from alcohol or drug abuse. The Department reported
Y.T. and Aaron were healthy, were current with their
vaccinations, and showed no signs of abuse or neglect. Antonio
said he never witnessed any “harmful interactions” between R.G.
and the children.
Y.T. told a case social worker that living with R.G. was
“‘stressful’” and “‘difficult’” and that she worried how exposure to
6
R.G.’s frequent “‘meltdowns’ would affect Aaron.” Y.T. said R.G.
and Antonio frequently argued about R.G.’s failure to take her
medication and about money. Y.T. said R.G. did not take her
medication consistently “because she believes that ‘God is going
to heal her.’” Y.T. said that she felt safe and well cared for while
she was living with R.G. and Antonio and that she never
observed any marks or bruises on Aaron that would indicate
abuse or neglect.
B. The Department Files a Petition Under Section 300,
Subdivisions (a) and (b)
On August 13, 2019 the Department filed a petition
alleging one count under section 300, subdivision (a), and two
counts under section 300, subdivision (b). The Department
alleged Y.T. and Aaron came within the jurisdiction of the
juvenile court as a result of a history of violent altercations
between R.G. and Antonio in the presence of the children and
R.G.’s history of mental and emotional problems. The
Department also alleged Antonio failed to protect Aaron despite
knowing about R.G.’s mental and emotional problems because
Antonio allowed R.G. to reside in the child’s home “and to have
unlimited access to the child.” On August 14, 2019 R.G. agreed to
submit to a psychological evaluation.
During an interview with a case social worker on
September 6, 2019, R.G. said that her divorce from Antonio was
proceeding, but that Antonio wanted her to return home.
Antonio indeed told a social worker that he and R.G.’s mother
could help R.G. if she moved back home and that he did not
understand “why they [were] going to court.” He said that he had
not received any paperwork about a divorce and that he saw R.G.
7
every day outside the house. R.G. said “she could return” to live
with Antonio if she were allowed to take care of the children.
R.G. said she was taking her medication, which both
Antonio and R.G.’s mother confirmed. According to the mental
health center where R.G. had been receiving services since 2013,
R.G. saw her treating psychiatrist on January 18, February 15,
March 1, May 14, and June 6, 2019. R.G. said that she had
appointments scheduled for June 16 and July 19, 2019, but that
she missed them because she was hospitalized on those dates
(even though she was hospitalized only on the latter date). A
supervisor from the health center informed the Department that
R.G. also failed to attend appointments on June 28 and
September 6, 2019. R.G. also did not submit to the court-ordered
mental health assessment.
C. The Juvenile Court Makes Jurisdiction Findings and
Disposition Orders, and Terminates Jurisdiction over
Y.T.
At the September 30, 2019 jurisdiction and disposition
hearing, R.G. asked the court to dismiss counts a-1 and b-1 based
on domestic violence and argued the incidents underlying those
allegations were “not due to harmful behaviors” but resulted from
R.G.’s “illness.” R.G. also asked the court to dismiss count b-2
based on her mental health and argued that neither child was
harmed as a result of her mental condition and that her condition
had stabilized. Antonio asked the court to strike the allegations
against him because he behaved reasonably under the
circumstances.
The juvenile court concluded R.G. suffered from mental
health and emotional problems that placed the children at risk
8
because R.G.’s condition “manifested itself in violent behaviors.”
The court sustained all three counts with amendments to remove
allegations against Antonio from the petition, and the court
dismissed the petition with respect to him.2 As amended, the
sustained counts a-1 and b-1 alleged that the history of violent
altercations between R.G. and Antonio in the presence of the
children endangered the children’s physical health and safety
and placed the children at risk of serious physical harm, damage,
and danger.3 Sustained count b-2 alleged that R.G.’s history of
mental and emotional problems rendered R.G. unable to provide
2 The record on appeal includes only the jurisdiction and
disposition order pertaining to Y.T. We take judicial notice of the
September 30, 2019 jurisdiction and disposition order pertaining
to Aaron pursuant to Evidence Code sections 452 and 459.
3 As sustained, counts a-1 and b-1 stated: “The children[’s]
. . . mother, [R.G.,] and the mother’s male companion, Antonio
[H.], father of the child Aaron, have a history of engaging in
violent altercation[s] in the presence of the children. In April of
2019, the mother pulled and ripped [Aaron’s] father’s shirt
inflicting a scratch to [Aaron’s] father’s chest while [Aaron’s]
father held the child Aaron. On 06/18/2019, the mother
attempted to strike and kick [Aaron’s] father. [Aaron’s] father
wrapped [his] arms around the mother’s body and threw the
mother to the ground. [Aaron’s] father pinned the mother to the
ground inflicting scratches to the mother’s back and arms. Such
violent conduct on the part of the mother endangers the
children’s physical health and safety, and places the children at
risk of serious physical harm, damage and danger.”
9
regular care of the children.4 Count b-2 also alleged that R.G.
failed to take psychotropic medication as prescribed and was
hospitalized to treat her psychiatric condition and that her
mental and emotional condition endangered the children’s
physical health and safety and placed them at risk of “serious
physical harm, damage, danger and failure to protect.”
Regarding disposition, R.G. argued a voluntary plan under
section 360, subdivision (b), was appropriate for Aaron because,
even before the Department’s intervention, the family had a
safety plan in place to protect Aaron. Aaron’s grandmother could
continue to be Aaron’s primary caregiver, and the Department
had already approved her to monitor visits between R.G. and
Aaron. The Department argued supervision was necessary
because R.G. had been receiving treatment for her mental health
condition since 2013, yet she continued to have problems that
resulted in the incidents of April and June 2019 and had been
hospitalized multiple times in recent months. The Department
also argued R.G. had not consistently attended appointments
4 As sustained, count b-2 stated: “The children[’s] . . .
mother, [R.G.,] has a history of mental and emotional problems,
including a diagnosis of Bi-Polar Disorder, manic with psychotic
feature, Major Depressive Disorder recurrent, severe with
psychotic features, Post Traumatic Stress Disorder and anxiety,
which renders the mother unable to provide regular care of the
children. The mother failed to take the mother’s psychotropic
medication as prescribed. On 07/16/2019, 06/18/2019, and on
prior occasions, the mother was hospitalized for the evaluation
and treatment of the mother’s psychiatric condition. Such mental
and emotional condition on the part of the mother endangers the
children’s physical health and safety, and places the children at
risk of serious physical harm, damage, danger and failure to
protect.”
10
with her psychiatrist and had not submitted to the court-ordered
psychological assessment. Moreover, R.G. had been living in her
car, and counsel for Antonio told the Department that Antonio
was “sympathetic” to her situation. The Department argued
supervision was necessary to ensure Aaron’s safety if R.G.
returned home before her mental health condition stabilized.
Counsel for Y.T.’s father Nelson asked the court to place
Y.T. with Nelson, terminate jurisdiction over Y.T., grant Nelson
sole physical custody of Y.T., and grant Nelson and R.G. joint
legal custody of Y.T. Counsel for R.G. did not address disposition
with regard to Y.T.
The court found R.G.’s mental condition was unstable,
declared the children dependents of the court, and found by clear
and convincing evidence it was necessary to remove the children
from R.G.’s custody because there was a substantial danger to the
children if left in her custody and there were no reasonable
means to protect them without removing them from her care and
custody. The court released Y.T. to her father and terminated
jurisdiction, granted Nelson sole physical custody, granted
Nelson and R.G. joint legal custody, and ordered unmonitored
visitation for R.G. The court stayed the disposition order pending
receipt of a juvenile custody order, which occurred on October 4,
2019. The court placed Aaron with Antonio and ordered
monitored visits for R.G. The court also ordered R.G. to take all
prescribed medication, submit to a psychiatric evaluation, and
attend individual counseling to address her mental health and
domestic violence issues. R.G. timely appealed the jurisdiction
findings, the disposition orders, the order terminating
jurisdiction over Y.T., and the custody and visitation order
concerning Y.T.
11
DISCUSSION
A. R.G.’s Appeal from the Jurisdiction Findings
Regarding Y.T. Is Not Moot, but Her Appeal from the
Disposition Order Is
The Department argues R.G.’s appeal with respect to Y.T.
is moot. R.G. argues her appeal is not moot because, among
other reasons, “the court’s assumption of jurisdiction created
[the] custody orders.”
An appeal is moot if the reviewing court cannot grant
effective relief. (In re A.B. (2014) 225 Cal.App.4th 1358, 1364; In
re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054; see In re N.S.
(2016) 245 Cal.App.4th 53, 60 [“the 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”].)
An order terminating juvenile court jurisdiction generally
renders an appeal from a previous order moot. (In re C.C. (2009)
172 Cal.App.4th 1481, 1488.) However, “‘“[a]n issue is not moot if
the purported error infects the outcome of subsequent
proceedings”’” (In re E.T. (2013) 217 Cal.App.4th 426, 436) or
“‘“could have other consequences for [the appellant], beyond
jurisdiction”’” (In re Briana V. (2015) 236 Cal.App.4th 297, 309;
see In re Drake M. (2012) 211 Cal.App.4th 754, 762-763). For
example, an appeal from jurisdiction findings is not moot where
the sustained findings have an adverse effect on custody or
visitation rights. (In re J.K. (2009) 174 Cal.App.4th 1426,
1431-1432; In re C.C., at p. 1488; In re Joshua C. (1994) 24
Cal.App.4th 1544, 1548.)
12
The juvenile court’s termination of jurisdiction does not
moot R.G.’s appeal because the court issued a custody order
adverse to R.G. based on the jurisdiction findings. (See In re
J.K., supra, 174 Cal.App.4th at pp. 1431-1432 [even though the
juvenile court terminated jurisdiction, the father’s “challenge to
the jurisdictional findings [was] not moot” because “the sustained
jurisdictional findings against [him] have had an adverse effect
on his custody rights”]; In re Joshua C., supra, 24 Cal.App.4th at
p. 1548 [where the juvenile court issued restrictive visitation and
custody orders based on the jurisdiction findings, “[t]he fact that
the dependency action has been dismissed should not preclude
review of a significant basis for the assertion of jurisdiction where
exercise of that jurisdiction has resulted in orders which continue
to adversely affect appellant”]; cf. In re N.S., supra, 245
Cal.App.4th at p. 61 [appeal was moot where the jurisdiction
findings were not the basis of the custody and visitation order].)
Because the jurisdiction findings were the basis for the custody
and visitation order here, any “error in the former undermines
the foundation for the latter.” (In re Joshua C., at p. 1548.)
A juvenile court’s custody and visitation order (commonly
known as an “exit order”),5 however, supersedes disposition
5 Section 362.4, subdivision (a), provides that, if a juvenile
court terminates jurisdiction over a case, the court may issue “an
order determining the custody of, or visitation with, the child.”
Section 362.4, subdivision (c), provides: “If no action is filed or
pending relating to the custody of the minor in the superior court
of any county, the juvenile court order may be used as the sole
basis for opening a file in the superior court . . . .” “Custody and
visitation orders issued under section 362.4 are sometimes
referred to as ‘family law’ orders or ‘exit’ orders.” (In re Ryan K.
(2012) 207 Cal.App.4th 591, 594, fn. 5.)
13
orders. (See Heidi S. v. David H. (2016) 1 Cal.App.5th 1150,
1165 [“the exit order ‘shall be a final judgment and shall remain
in effect after [the juvenile court’s] jurisdiction is terminated’”];
see also § 362.4, subd. (b) [custody and visitation orders “continue
until modified or terminated by a subsequent order of the
superior court”].) The disposition order pertaining to Y.T. no
longer adversely affects R.G., and nothing we could do in this
appeal can grant her any relief from an order that essentially no
longer exists. (See In re E.T., supra, 217 Cal.App.4th at p. 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”].) R.G.’s appeal from the
disposition order regarding Y.T. is moot.
B. Applicable Law and Standard of Review
“At the first stage of dependency proceedings, the juvenile
court determines whether [a] child is subject to juvenile court
jurisdiction; [the Department] has the burden to prove
jurisdiction by a preponderance of the evidence.” (In re
Yolanda L. (2017) 7 Cal.App.5th 987, 992.) “At the second stage,
the juvenile court must decide where the child will live while
under juvenile court supervision; to support removal from
parental custody, [the Department] has the burden to prove by
clear and convincing evidence that there is a risk of substantial
harm to the child if returned home and the lack of reasonable
means short of removal to protect the child’s safety.” (Ibid.; see
§ 361, subd. (c); In re D.P. (2020) 44 Cal.App.5th 1058, 1068; In re
D.C. (2015) 243 Cal.App.4th 41, 51, 54.)
We review challenges to the sufficiency of the evidence
underlying jurisdiction findings and disposition orders for
14
substantial evidence. (In re Yolanda L., supra, 7 Cal.App.5th at
p. 992; see In re I.J. (2013) 56 Cal.4th 766, 773.) “‘“In making
this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency
court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” [Citation.] “We do
not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the
findings of the trial court.”’” (In re I.J., at p. 773; see In re
S.R. (2020) 48 Cal.App.5th 204, 219.)
“‘Substantial evidence is evidence that is “reasonable,
credible, and of solid value”; such that a reasonable trier of fact
could make such findings.’” (In re L.W. (2019) 32 Cal.App.5th
840, 848; see In re D.C., supra, 243 Cal.App.4th at p. 52.) “‘But
substantial evidence “is not synonymous with any evidence.
[Citations.] A decision supported by a mere scintilla of evidence
need not be affirmed on appeal.”’” (In re Joaquin C. (2017) 15
Cal.App.5th 537, 560.) “‘“Inferences may constitute substantial
evidence, but they must be the product of logic and reason.
Speculation or conjecture alone is not substantial evidence.’””
(Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420;
see In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 [a
“juvenile court’s conclusion ‘supported by little more than
speculation’ [is] not based on substantial evidence”].) The
appellant has the burden to show there is no evidence of a
sufficiently substantial nature to support the findings or order.
(In re D.C., at p. 52; In re A.E. (2014) 228 Cal.App.4th 820, 826.)
15
C. Substantial Evidence Did Not Support Jurisdiction
Under Section 300, Subdivision (a)
Section 300, subdivision (a), provides for juvenile court
jurisdiction when a child has suffered, or there is a substantial
risk the child will suffer, serious physical harm inflicted
nonaccidentally by the child’s parent. Because neither Y.T. nor
Aaron suffered serious physical harm, the Department had to
show there was a substantial risk the children would suffer
serious physical harm inflicted nonaccidentally in the future.
(See In re Jonathan B. (2015) 235 Cal.App.4th 115, 119.) In
making that determination, the juvenile court may consider “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).) “Nonaccidental” generally means a
parent “acted intentionally or willfully.” (In re R.T. (2017)
3 Cal.5th 622, 629.)
There was no evidence suggesting R.G. ever inflicted any
injuries on Y.T. or Aaron, accidentally or otherwise. Nor was
there evidence of the type of “other actions” courts have cited as
indicating a child is at risk of suffering serious physical harm
inflicted nonaccidentally in the future. For example, in In re
Giovanni F. (2010) 184 Cal.App.4th 594, on which the
Department relies, the court held a father’s history of violent
attacks on his child’s mother in the child’s presence,6 his denial
6 The court described this history as follows: “[Father] was
violent with [Mother] throughout their two-and-one-half-year
relationship. He hit, slapped and beat her. He blackened her
16
he was violent, his refusal to comply with a safety plan, and his
violation of a restraining order justified jurisdiction under section
300, subdivision (a). (Id. at pp. 599-601.) The physical
altercations between R.G. and Antonio, as the Department
concedes, were relatively few and far less severe. R.G. became
violent on only two occasions when she changed or failed to take
her medication, and in one of those instances, when R.G. threw
unspecified objects inside her home, no one was injured. This
evidence did not support the juvenile court’s finding of a
substantial risk R.G. would inflict serious physical harm
nonaccidentally on Y.T. or Aaron. (See In re Isabella F. (2014)
226 Cal.App.4th 128, 138-139 [substantial evidence did support
jurisdiction under section 300, subdivision (a), based on an
“isolated incident” where the mother hit or scratched her 10-year-
old daughter’s face, grabbed her by the neck, and locked her in
the bathroom when she refused to go to school].)
D. Substantial Evidence Supported the Juvenile Court’s
Jurisdiction Findings Under Section 300,
Subdivision (b)(1)
R.G. contends substantial evidence did not support the
juvenile court’s findings under section 300, subdivision (b)(1),
that her mental health condition and the domestic violence
between her and Antonio endangered the children’s physical
eye, bloodied her nose and choked her. He left her bruised and
scarred. He called her demeaning names. He threatened to kill
her. [Father] was violent with [Mother] even while he was
driving. On one such occasion, he hit her in the stomach, then
left her stranded.” (In re Giovanni F., supra, 184 Cal.App.4th at
p. 599.)
17
health and safety and placed them at risk of “serious physical
harm, damage, danger and failure to protect.” Section 300,
subdivision (b)(1), provides for juvenile court jurisdiction when a
“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 [the] parent . . . to adequately supervise or
protect the child, or . . . to provide regular care for the child due
to the parent’s or guardian’s mental illness . . . .” A jurisdiction
finding under section 300, subdivision (b)(1), requires the
Department to prove (1) the parent’s neglectful conduct or failure
or inability to protect the child; (2) causation; and (3) serious
physical harm or illness or a substantial risk of serious physical
harm or illness. (In re L.W., supra, 32 Cal.App.5th at p. 848; In
re Joaquin C., supra, 15 Cal.App.5th at p. 561; see In re R.T.,
supra, 3 Cal.5th at p. 624.)
“In deciding whether there is a substantial risk of serious
physical harm, within the meaning of section 300, subdivision (b),
courts evaluate the risk that is present at the time of the
adjudication hearing. ‘While evidence of past conduct may be
probative of current conditions, the question under section 300 is
whether circumstances at the time of the hearing subject the
minor to the defined risk of harm.’” (In re Roger S. (2018)
31 Cal.App.5th 572, 582; see In re J.M. (2019) 40 Cal.App.5th
913, 921 [“Where jurisdictional allegations are based solely on
risk to the child, and not on past injury, a juvenile court
ordinarily determines whether a substantial risk of harm exists
at the time of the jurisdiction hearing.”].) “‘To establish a defined
risk of harm at the time of the hearing, there ‘must be some
reason beyond mere speculation to believe the alleged conduct
will recur.’” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) The
18
Department has the burden to prove by a preponderance of the
evidence a child is at substantial risk of serious physical harm.
(In re Joaquin C., supra, 15 Cal.App.5th at p. 561.)
1. Substantial Evidence Supported the Juvenile
Court’s Finding That R.G.’s Mental Condition
Created a Substantial Risk of Serious Physical
Harm
R.G. makes several arguments to challenge the juvenile
court’s finding that her mental condition created a substantial
risk of serious physical harm to Y.T. and Aaron. First, she
argues that the evidence she had a mental health condition and
was willing to seek out and accept treatment for that condition
was insufficient to establish jurisdiction under section 300,
subdivision (b)(1). R.G. is correct that neither her mental illness
nor her willingness to accept treatment, without more, justified
jurisdiction under section 300, subdivision (b)(1). (See In re A.L.
(2017) 18 Cal.App.5th 1044, 1049-1051 [mother’s schizophrenia,
without more, did not create a substantial risk of physical harm
for her children]; In re Joaquin C., supra, 15 Cal.App.5th at
p. 563 [“The existence of a mental illness is not itself a
justification for exercising dependency jurisdiction over a child.”];
id. at p. 564 [“We caution against treating a parent’s willingness
to accept services as evidence or an admission that the parent
cannot provide adequate supervision, protection, and care.”]; In re
Travis C. (2017) 13 Cal.App.5th 1219, 1226-1227 [“‘Harm to a
child cannot be presumed from the mere fact the parent has a
mental illness.’”].)
But there was far more evidence than R.G.’s diagnosis and
willingness to be treated, and it showed that R.G. was not always
19
willing to accept treatment. The court emphasized that R.G.’s
condition “manifested itself in violent behaviors,” including the
April 2019 incident where R.G. scratched Antonio while he held
Aaron and the June 2019 incident where R.G. threw objects
inside the house. Moreover, R.G. was involuntarily hospitalized
for almost three weeks, and voluntarily hospitalized for almost
another week, as a result of changes to her medication or her
failure to take it, and R.G. missed three therapy appointments in
a span of three months. R.G.’s illness and her failure to treat it
consistently put Y.T. and Aaron in situations where they were at
a substantial risk of serious physical harm. (See In re Travis C.,
supra, 13 Cal.App.5th at p. 1226 [jurisdiction under section 300,
subdivision (b)(1), was appropriate where the “[m]other’s illness
and her failure to consistently treat it have already put [her
children] into situations where they were at a substantial risk of
serious physical harm”].) Substantial evidence supported the
juvenile court’s finding that R.G.’s mental condition created a
substantial risk of serious physical harm to Y.T. and Aaron.
Second, R.G. argues jurisdiction was inappropriate because
the family was “well-equipped to handle” R.G.’s mental health
issues. In particular, she cites evidence the children’s fathers,
her mother, and a neighbor were available to provide or help
provide care for the children. R.G. cites cases reversing
jurisdiction findings where a parent’s mental health condition
posed no danger to the children in part because another parent or
guardian was available to care for the children. (See In re A.L.,
supra, 18 Cal.App.5th at p. 1051; In re James R. (2009) 176
Cal.App.4th 129, 136-137; In re Janet T. (2001) 93 Cal.App.4th
377, 385.) But that was not the case here. Despite Antonio’s
efforts, R.G. came perilously close to injuring Aaron by ripping
20
open Antonio’s shirt while Antonio held Aaron and by throwing
objects inside the house. And although Y.T. moved out of her
mother’s home before the June 2019 incident, there was nothing
to keep her from returning to live with R.G. or to keep R.G. from
taking her, as she did in April 2019, to live with a friend or
elsewhere.
Third, R.G. argues that, at the time of the jurisdiction
hearing, her condition had stabilized and she was taking her
medication, getting treatment, and working. But R.G. missed
several therapy appointments, including one just a few weeks
before the jurisdiction hearing. In addition, it is not clear
whether R.G.’s statement she was taking her medication meant
she was taking it as prescribed or only “as needed,” as she
suggested to a case social worker in July 2019. Indeed, R.G. told
the same social worker she was relying on God and prayer, not
her medication, to cure her. And although R.G. agreed at the
August 14, 2019 detention hearing to submit to a psychiatric
evaluation, she never followed through.
Finally, R.G. argues her pending divorce “would have
additionally alleviated the need for court intervention” because it
would have determined which parent had custody of Aaron. But
R.G.’s mental condition created a present risk of harm to Y.T. and
Aaron that could not await a family court custody battle.
Moreover, the record does not indicate the status of R.G.’s divorce
petition, and it is not even clear that R.G. continued to seek a
divorce from Antonio. R.G. acknowledged Antonio wanted her to
return home, and Antonio said he saw R.G. every day outside
their home, even after the children were detained.
21
2. Substantial Evidence Supported the Juvenile
Court’s Finding That Violent Altercations
Between R.G. and Antonio Created a
Substantial Risk of Serious Physical Harm
a. R.G.’s Challenges to the Jurisdiction
Findings Based on Domestic Violence Are
Justiciable
“When a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s
jurisdiction, a reviewing court can affirm the juvenile court’s
finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing
court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.”
(In re Alexis E. (2009) 171 Cal.App.4th 438, 451; see In re M.W.
(2015) 238 Cal.App.4th 1444, 1452 [“As a general rule, a single
jurisdictional finding supported by substantial evidence is
sufficient to support jurisdiction and render moot a challenge to
the other findings.”].)
R.G. acknowledges this general principle, but argues we
should consider her challenges to the juvenile court’s domestic
violence findings because they could prejudice her in future
dependency or family court proceedings. In particular, she
argues she would be “collaterally estopped” from relitigating the
juvenile court’s findings in family court proceedings involving
Y.T. or Aaron. Although there is no evidence of such proceedings
now, they are reasonably foreseeable given that there is a family
law custody order in place for Y.T. and that the family law court
22
in R.G. and Antonio’s pending divorce proceeding (assuming it
goes forward) may issue a custody order for Aaron. R.G. contends
that in such a proceeding the juvenile court’s findings based on
domestic violence could give rise to a presumption against
awarding her custody. (See Fam. Code, § 3044, subd. (a) [“there
is a rebuttable presumption that an award of sole or joint
physical or legal custody of a child to a person who has
perpetrated domestic violence is detrimental to the best interest
of the child”].) While we take no position on whether a juvenile
court’s jurisdiction findings based on physical altercations arising
from a mental health condition constitute a domestic violence
finding for purposes of Family Code section 3044, we agree with
R.G. that the juvenile court’s jurisdiction findings based on R.G.’s
violent altercations with Antonio, if erroneous, “could have severe
and unfair consequences” to R.G. in family court proceedings.
(See In re Daisy H. (2011) 192 Cal.App.4th 713, 716; In re
Joshua C., supra, 24 Cal.App.4th at p. 1548.) Therefore, we will
consider the merits of R.G.’s appeal from the juvenile court’s
domestic violence jurisdiction findings under section 300,
subdivisions (a) and (b).
b. The Juvenile Court Could Reasonably
Infer That, Without Treatment, R.G.’s
Mental Condition Would Continue To
Cause Violent Altercations and Create a
Substantial Risk of Future Physical
Harm to Y.T. and Aaron
“Physical violence between a child’s parents may support
the exercise of jurisdiction under section 300, subdivision (b) but
only if there is evidence that the violence is ongoing or likely to
23
continue and that it directly harmed the child physically or
placed the child at risk of physical harm.” (In re Daisy H., supra,
192 Cal.App.4th at p. 717; accord, In re M.W., supra, 238
Cal.App.4th at p. 1453.) “A parent’s “‘[p]ast conduct may be
probative of current conditions” if there is reason to believe that
the conduct will continue.’” (In re Kadence P. (2015) 241
Cal.App.4th 1376, 1384.)
Substantial evidence supported the juvenile court’s finding
that Y.T. and Aaron were at substantial risk of future physical
harm at the time of the jurisdiction hearing. In the months
preceding the Department’s investigation, R.G.’s violence at home
twice required police intervention, and she was hospitalized twice
after changing or failing to take her medication. She failed to
attend all of her therapy appointments, suggested she could take
her medication only “as needed,” questioned why she was
hospitalized, and said Antonio caused her problems by “calling
her ‘crazy.’” And although R.G. moved out of the family home in
April 2019 and filed for divorce in May 2019, she returned home
in July 2019, only to be hospitalized again. R.G. had failed to
resolve the concerns arising from her mental health condition at
the time of the jurisdiction hearing.
Conditions in the home that led Antonio and R.G. to argue
also went unresolved. R.G. and Antonio frequently argued, both
before and after her hospitalizations. A few weeks before the
jurisdiction hearing, R.G. complained to a case social worker that
Antonio “was going to do everything he could to make [her] sick
and take Aaron away.” R.G. said she tore Antonio’s shirt in April
2019 “because he started to aggravate me, about taking me to the
hospital,” and R.G. described Antonio as “abusive.” R.G. also told
the case social worker she did not want to return to live with
24
Antonio because “[t]here is domestic violence,” but she
nevertheless saw Antonio on a daily basis.7 Because R.G.’s
mental condition manifested in domestic violence that placed her
children at risk of physical harm in the past, and because at the
time of the jurisdiction hearing R.G. had not fully committed to
treatment for her mental condition, the juvenile court could
reasonably infer that the conditions created by R.G.’s mental
condition would continue to create a substantial risk of future
physical harm to Y.T. and Aaron. (See In re L.W., supra, 32
Cal.App.5th at p. 850 [unless resolved, a mother’s substance
abuse would “spill[ ] over into areas that will pose a substantial
risk of physical harm” to her child].)
R.G. argues that any risk to Y.T. was “very low” because
Y.T. lived with her father and had no plans to return to live with
R.G. But nothing kept Y.T. from visiting R.G. at the family home
or from moving back. The record suggests Y.T. went to live with
her father because her mother moved out of the family home in
April 2019 without having another place to live, not because Y.T.
no longer wanted to live with her mother. R.G. also argues the
risk to Aaron was “low” because she moved out before the
detention hearing. But R.G. previously moved out only to return
again, and Antonio said he and R.G. saw each other every day.
And R.G.’s mother continued to live with Antonio and take care of
7 R.G. also argues the jurisdiction findings based on
“domestic violence” cannot stand because her violent behavior
resulted from her mental condition and not from anger. Section
300, subdivision (b), however, protects children from physical
harm or the risk of physical harm no matter what triggers a
parent’s violence, be it anger, substance abuse, a mental
condition, or something else.
25
Aaron. Thus, the juvenile court could infer that, without
intervention, R.G. and Antonio would likely live together again or
see each other frequently, and thus the potential for future
violent altercations was not speculative.
E. The Juvenile Court Did Not Abuse Its Discretion by
Declaring Aaron a Dependent of the Court or
Removing Him from R.G.’s Custody
R.G. argues the juvenile court erred in declaring Aaron a
dependent rather than ordering informal supervision under
section 360, subdivision (b), and in removing Aaron from her
custody. R.G. has not shown either ruling was erroneous.
1. The Juvenile Court Did Not Abuse Its
Discretion in Declaring Aaron a Dependent of
the Court
“After the juvenile court finds jurisdiction pursuant
to section 300, it must ‘adjudicate the child a dependent unless
the severity of the case warrants nothing more than [the child
protective agency’s] supervision of family maintenance
services. . . . [T]he 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.’ [Citation.] 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.” (In
re L.W., supra, 32 Cal.App.5th at p. 851; see In re N.M. (2011)
197 Cal.App.4th 159, 171 [“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
26
than [the child protective agency’s] supervision of family
maintenance services.”]; see also § 360, subd. (b).) “We cannot
reverse the court’s dispositional order absent a clear abuse of
discretion.” (In re L.W., at p. 851; see In re N.M., at p. 171.)
The juvenile court did not abuse its discretion in declaring
Aaron a dependent and ordering formal supervision. In rejecting
a voluntary plan under section 360, subdivision (b), the court
stated it had “concerns about [R.G.’s] ongoing mental health
situation.” Counsel for Aaron pointed out that, although R.G.
was “trying to address her mental health issue,” R.G. and
Antonio’s living arrangement remained unsettled, and the risk of
future altercations remained. Formal supervision would ensure
R.G. received necessary services. (See In re N.M., supra, 197
Cal.App.4th at p. 171 [“a formal reunification plan would provide
monitoring of [a parent’s] participation in the services and
reporting of their progress while a voluntary case plan would
not”].) Although there was evidence R.G. cooperated with the
Department and was receiving treatment, the potential for
recurrence of the risk to Aaron remained.
2. Substantial Evidence Supported Removal
R.G. contends the court erred in removing Aaron from her
custody because there were reasonable means to protect Aaron
without removal. In particular, R.G. argues she articulated a
plan in which Antonio, R.G.’s mother, and a neighbor would help
care for Aaron and ensure his safety without removing Aaron
from R.G.’s custody.
“[T]o support removal from parental custody, [the
Department] has the burden to prove by clear and convincing
evidence that there is a risk of substantial harm to the child if
27
returned home and the lack of reasonable means short of removal
to protect the child’s safety.” (In re Yolanda L., supra, 7
Cal.App.5th at p. 992; see § 361, subd. (c).) “A removal order is
proper if based on proof of parental inability to provide proper
care for the child and proof of a potential detriment to the child if
he or she remains with the parent. [Citation.] ‘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.” (In re N.M., supra, 197 Cal.App.4th at
pp. 169-170.)
“[W]hen reviewing a finding that a fact has been proved by
clear and convincing evidence, the question before the appellate
court is whether the record as a whole contains substantial
evidence from which a reasonable factfinder could have found it
highly probable that the fact was true. Consistent with well-
established principles governing review for sufficiency of the
evidence, in making this assessment the appellate court must
view the record in the light most favorable to the prevailing party
below and give due deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts in the
evidence, and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B. (July 27, 2020, S254938) ___Cal.5th ___,
___ [2020 WL 4280960, p. 1].)
At the disposition hearing counsel for R.G. argued the
family’s safety plan for Aaron protected him from harm without
removal. The juvenile court ordered removal without “stat[ing]
the facts on which the decision to remove” Aaron was based, as
28
required by section 361, subdivision (e).8 (See In re D.P., supra,
44 Cal.App.5th at p. 1065.) Although R.G. does not argue the
court’s failure to comply with section 361, subdivision (e),
prejudiced her, any error was harmless because there was
substantial evidence from which the juvenile court could have
found by clear and convincing evidence that removal was proper,
and it is not reasonably probable the juvenile court would have
ordered an alternative to removal had the court considered other
options.9
R.G. had removed herself from the home at the time of the
disposition hearing, but nothing prevented her from moving back,
either because she missed Aaron or had nowhere else to live. (Cf.
In re D.P., supra, 44 Cal.App.5th at p. 1069 [because a
restraining order effectively prevented the offending mother from
returning to live with her child, removal was not necessary “to
protect [the child] from the substantial harm he otherwise would
face ‘if [he] were returned home’”].) Given R.G.’s past history of
moving out, filing for divorce, experiencing homelessness, and
returning to live with Antonio because she missed Aaron, R.G.
easily could have repeated this cycle after the disposition hearing
and before she resolved her mental health issues. (See In re
8 Section 361, subdivision (e), provides: “The court shall
make a determination as to whether reasonable efforts were
made to prevent or to eliminate the need for removal of the minor
from his or her home . . . .”
9 R.G. also does not argue the court failed to comply with
section 361, subdivision (c)(1)(A), which provides: “The
court shall consider, as a reasonable means to protect the
minor . . . . [¶] (A) The option of removing an offending
parent . . . from the home.”
29
Alexzander C. (2017) 18 Cal.App.5th 438, 452 [removal was
appropriate where the offending parent “had previously failed to
comply with the court’s orders,” and the nonoffending parent had
allowed the offending parent to return home “knowing she had
not addressed her drug problems”], disapproved on another
ground in Conservatorship of O.B., supra, ___Cal.5th at p. ___
[p. 7, fn. 4]; In re N.M., supra, 197 Cal.App.4th at p. 170
[conditions in the home supported removal at the time of the
disposition hearing because the offending parent “had only begun
to participate in services, and it was too early to tell if he was
making progress”].)
DISPOSITION
The appeal from the disposition order regarding Y.T. is
dismissed. The jurisdiction findings regarding Y.T. and Aaron
under section 300, subdivision (b), are affirmed, but the
jurisdiction findings under section 300, subdivision (a), are
reversed. The disposition order regarding Aaron is affirmed.
SEGAL, J.
We concur:
30
PERLUSS, P. J.
FEUER, J.
31