In re Noah M. CA2/8

Filed 7/14/21 In re Noah M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re NOAH M., a Person B309460
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 20CCJP04956)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SHARON M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael E. Whitaker, Judge. Affirmed.
Nicole Williams, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and David Michael Miller, Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
The juvenile court declared minor Noah M. a dependent of
the juvenile court and removed him from the custody of his
mother, appellant Sharon M. (Mother), without also finding she
had abused, abandoned, or neglected her son. Did the juvenile
court err? The answer is no. This appeal prompts us to discuss
the infrequently invoked principle that the juvenile court may
exercise jurisdiction over a minor who is at substantial risk of
harm, even though the parent is not culpable in creating that
risk. We affirm the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Petition
The Welfare and Institutions Code1 section 300 petition,
filed September 21, 2020, included 3 counts. Count a-1 alleged
that on “prior occasions” Mother physically abused the child by
punching and striking him with metal spoons; pulling his hair;
inflicting nail marks on the child’s arms when she restrained
him; kicking the child; pinning the child’s head to a wall and
forcefully pressing the child’s head down toward a pillow causing
the child to have difficulty breathing. This count alleged the
physical abuse was excessive, caused the child unreasonable
plain and suffering and, as a result, the child was afraid of
mother and did not wish to reside with her. The physical abuse
endangered the child’s physical health and safety and placed the
child at risk of serious physical harm.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Count b-1 was based on the same factual allegations and
alleged the child’s physical health and safety were at risk because
Mother, “as a result of . . . failure or inability”, did not adequately
protect the child.
Count b-2 alleged the child has mental and emotional
problems including suicidal and homicidal ideation, aggressive
and assaultive behavior which renders Mother “unable to provide
the child with appropriate parental care and supervision.” On a
prior occasion the child exhibited anger by punching and
throwing chairs and objects at Mother. In September 2020, the
child exhibited anger in that he threatened Mother by putting a
knife into a nerf gun and shooting it at her, causing Mother to
restrain the child and resulting in hospitalization of the child in a
psychiatric facility. “The mother’s limited ability to provide the
child with appropriate parental care and supervision endangers
the child’s physical health and safety and places the child at risk
of serious physical harm, damage and danger.”
In 2020, when the petition was filed, Noah was 14 years
old. Three months earlier, on June 26, 2020, the court had
appointed Noah’s maternal grandfather as his temporary
guardian and since that date, Noah had been in placement with
his grandfather.
II. Facts Before the Court
In 2006, when he was three months old, Noah suffered a
traumatic brain injury – subarachnoid bleeding and bilateral
retinal hemorrhages, epilepticus, and a subdural hematoma with
bleeding to the left and right sides of the brain. The juvenile
court sustained a petition alleging Noah’s injuries were
consistent with inflicted trauma. The petition also alleged Noah’s
parents engaged in a violent altercation in his presence resulting
3
in Father physically assaulting Mother by striking her body.
Mother also violated a restraining order by allowing Father to
reside in the home and have unlimited access to the child.
Father was separately alleged to have a criminal history of
battery which endangered Noah’s physical and emotional health
and safety and placed him at risk of physical harm.
In 2007, when Noah was 15 months old, the juvenile court
sustained a second petition alleging Mother illegally used
methamphetamine, which endangered Noah’s physical and
emotional health. Noah’s maternal grandparents were appointed
his guardians until 2009, when the case was terminated and
Noah was returned to his mother. Father, by this time, was out
of the family’s life and Mother was raising her brain-damaged
son alone, although for much of the time Mother’s boyfriend
resided with them.
Most recently, a caller advised DCFS that on September 3,
2020 Noah told his therapist Mother had put her hand on his face
and prevented him from breathing. She then took him to a bed
and put her arm around his neck and stopped him from
breathing. Noah reported being afraid of Mother in the past;
after disclosing this information, he then refused to disclose
anything else to the therapist.
DCFS investigated the referral by interviewing Noah,
maternal grandfather and his girlfriend, Mother, maternal aunt,
and Noah’s therapist.
Maternal Grandfather: In June 2020, he was appointed
Noah’s temporary guardian and Noah was indeed living with
him. Grandfather stated the child’s father disappeared after
Noah’s brain injury which the family believed was inflicted by
4
father. Grandfather stated he has delegated Noah’s medical care
to Mother who knows his medical needs and providers.
At the time of the interview in September 2020, Noah was
on a 5150 hold because Mother had taken him to the hospital due
to his aggressive behavior. Grandfather reported Noah has anger
issues related to his traumatic brain injury, which makes it
difficult for him to control his emotions. He also advised Noah
tends to exaggerate to get what he wants. He accuses one adult
to curry favor with another. Grandfather confirmed Mother was
now drug-free and was not abusive or neglectful towards Noah.
The family was concerned about Noah’s anger issues and wanted
help for him. According to grandfather, Noah is no longer afraid
of Mother and gets so aggressive Mother has to physically
restrain him to control him. Noah was not currently enrolled in
school because he was bullied in the past and Mother
homeschools him. Noah does not carry a weapon and is neither
suicidal or homicidal. Grandfather wanted Noah admitted to a
hospital to get help for his anger issues.
Grandfather’s girlfriend Grace: Grace described Noah’s
behavior as impatience rather than aggression. She stated
Mother is not abusive with Noah who is “difficult to handle.”
Maternal aunt CR: CR stated she did not believe Noah was
behaving inappropriately until she observed Noah threaten
Mother with bodily harm. She stated Noah put something,
possibly a knife, in a nerf gun and shot it at Mother. His
traumatic brain injury affects his impulse control and causes him
to confuse reality with fantasy. For example, if he sees
something violent on television or in a movie, he will think
Mother is doing it to him. In addition to his brain injury, Noah
suffered bullying at school and fell into a fire pit seven years ago,
5
resulting in burns and scarring to his arms and lower back. He
takes out his resentment on Mother and becomes angry when he
does not like what she directs him to do. CR described Noah as
“manipulative” and stated she has “caught him in lies.” CR
concluded Noah needed help and medication, and the only reason
he does not want to live with Mother is because she tells him
what to do, whereas grandfather is less confrontational.
Mother: Mother stated Noah recently put a knife into a
nerf gun and shot it at her. At that point she felt he needed to be
in a hospital on medication. In the past, he has threatened to kill
himself, Mother, and other family members. He has thrown
chairs and objects at her as well as punched her. She stated she
restrains him only when he has a knife or sharp object in his
hands and she does so by taking his arms and pinning him
against a wall or to the ground to take the object from him; she
then walks away. She has seen him with knives on multiple
occasions and does not know where he obtains them. She has
found knives buried in the backyard. She recently had him
hospitalized on a 5150 hold because she needed to get help for
him. She denied physically abusing Noah and stated she has had
to isolate herself from her friends because they want to call law
enforcement when they witness his behavior towards her. She
also characterized her son as manipulative to the point where he
will say anything to get his way. Mother asserted Noah is not at
fault for his behaviors because he cannot control himself due to
his brain injury. She wants to continue to help her son meet
milestones and overcome his disabilities.
Mother stated Noah was living with his grandfather.
Recently Noah came to visit her and became upset when she told
him to do something he did not want to do. He went into his
6
bedroom and returned with a knife in his hand. Mother wrestled
the knife out of his hand. The next day Mother took Noah to
work with her and on the way home in the car, he was hitting
Mother with a basketball while she was driving. When they
arrived home, he threatened to kill himself so she decided to take
him to the hospital where he was placed on a 5150 hold. She
stated she would cooperate with DCFS in getting Noah a
placement and services.
Noah’s therapist: He stated Noah has been diagnosed with
traumatic brain injury, PTSD, oppositional defiant disorder,
major depression in remission, and ADHD. Noah’s medical
history also includes diagnoses of shaken baby syndrome,
concussion, infantile spasms, bilateral extremity hypertonia,
grand mal seizures, epilepsy, severe Stage 3 burns requiring skin
grafts, tiptoe walking and frequent tripping requiring leg braces,
cerebral palsy, temporary blindness, significant problems with
gait, balance, coordination and large body gross motor skills. He
is not on medication and currently needs a higher level of care as
he is very aggressive, angry, and uncooperative during therapy
sessions. Noah is neither suicidal nor homicidal, although he has
threatened to tell law enforcement that he is. The therapist is
not sure whether he can believe Noah’s accusations of physical
abuse because the therapist’s own observations of the family lead
him to believe Mother is not abusive.
Noah: Noah was interviewed at the hospital where he was
on a 5150 hold. He stated he did not feel safe with Mother and
she “physically and verbally hits me.” He alleged Mother
“punch[ed] like a man” and left nail marks on his arms when she
tried to restrain him. (No marks were observed during the
interview.) Noah claimed Mother disciplined him by pulling his
7
hair, shaking hair, hitting with metal spoons, and hitting him
harder when he cries. However, now when Mother hits him,
Noah hits her back. He stated he and Mother “fight like animals”
and are “not good for each other.” He accused Mother of baiting
him with remarks that anger him. He now carries a knife to cope
with her and feel safe. He denied pulling a knife on Mother,
instead asserting he was just showing the knife to her when she
recently called law enforcement for help. He stated the family
did not want him to tell law enforcement about his mother’s
assaults on him because the family does not want her to go to jail.
As a result, he felt pressure not to say anything. Noah concluded
he wanted to return to his grandfather’s home where he feels
safe. He denied being aggressive, homicidal or suicidal. He
stated when he is angry, he works out or punches a punching
bag. He stood by the allegations of physical abuse alleged against
Mother in the petition.
DCFS concluded that court involvement was warranted to
ensure Noah’s safety and emotional well-being, as Mother
appeared to be a trigger to Noah, causing him to be upset and
aggressive with her, all of which endangered his physical and
emotional well-being. Noah himself acknowledged they
physically engaged with each other and “are not good for each
other.” In recommending that Noah be removed from Mother to
ensure his safety, DCFS noted that recently Noah was examined
in the emergency room as he had bruises on his buttocks and
legs. Noah stated Mother had hit him with a broomstick, chased
him, and cursed at him. He locked himself in a truck to protect
himself. He also stated he had fallen during a physical struggle
with Mother and injured his arm.
8
A school neuropsychology assessment dated May 17, 2020,
attempted to sum up Noah’s situation: “There are mental health
concerns in this evaluation. Noah has a long history of bullying
and types of subtle abuse within the school setting and also has
been exposed to significant types of disruption at home and even
violence by his stepfather. Moreover, he has had long-term
disabilities that he has been teased and harassed for and also
significant burns on his body related to a fire. Noah tends to try
to be an optimistic youngster and rather than become overly
depressed, which was apparent several years ago when he
wanted to die, he has developed copying mechanisms of fighting
back and becoming more brash and standing up for himself. His
attachment to adult figures has been disrupted. Chronic fighting
and chaos related to his stepfather and conflict with his mother
(his primary caretaker and sole teacher the last 17 months) has
deterred normal levels of connection and trust. Moreover, the
losses associated with severe disabilities related to the brain
injury concomitant with disfigurement from the fire and years of
chronic teasing, pushing, bullying, and physical threats have left
him mistrusting of people in general and somewhat helpless.
Formerly depressed and suicidal, he now protects himself with a
false sense of bravado and indifference. Moreover, he does have
posttraumatic stress related to having a knife pulled on him at
school, years of physical and emotional bullying at school, and
chronic conflict at home.”
Noah’s Individual Program Plan (IPP), dated August 6, 2019
and prepared by the Inland Counties Regional Center, stated
similar conclusions about his behavior: “Noah has a history of
physical aggression, self-injurious behaviors, major property
damage and outbursts/tantrums.” His Individualized Education
9
Plan (IEP), dated July 22, 2020, noted that when last in school in
2018, he had “off task, non-compliant disruptive behaviors for up
to 10 minutes at a time several times during a school day.” In
addition, the IEP noted that because Noah reports “feelings of
being misunderstood especially by his peer group,” conflicts arise
and he “is not implementing conflict resolution steps and
therefore may experience anger, arguing, and altercations may
ensue.”
III. The Juvenile Court’s Findings
Adjudication came on for hearing on December 1, 2020.
The court dismissed counts a-1 and b-1, the counts alleging
physical abuse, for “no sufficient competent evidence of any
current neglectful conduct, causation, or substantial risk of
serious physical harm or illness to the minor child.” The court
sustained count b-2, finding DCFS had met its burden of proving
that Noah’s behavior and Mother’s inability to supervise him
endangered his physical and emotional health. The court
declared Noah a dependent of the court and ordered him removed
from Mother and suitably placed under DCFS’s care and
supervision. The court ordered family reunification services;
monitored visitation with a written visitation schedule; conjoint
counseling for Mother and Noah; a parenting program for special
needs children; and individual counseling.
Mother appeals.
DISCUSSION
The sole issue on appeal is the propriety of the juvenile
court’s exercise of jurisdiction over Noah after finding that
Mother had neither abused, abandoned nor neglected her son.
We note Mother does not challenge the removal order itself
10
except to the extent that it is the result of an erroneous exercise
of jurisdiction.
We review the record for substantial evidence. “[W]e 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.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193,
disapproved on other grounds in In re R.T. (2017) 3 Cal.5th
622, 628 (R.T.).)
The juvenile court exercised jurisdiction under section 300,
subdivision (b)(1), which provides: “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 or guardian to adequately supervise or protect
the child.” The leading case addressing this uncommon situation
is R.T., where the facts closely mirror those before us. R.T. was a
17-year-old girl who, at age 14, began running away from home
for days at a time and skipping school. She falsely reported her
mother had abused her. (R.T., supra, 3 Cal.5th at p. 625.) At age
15, R.T. gave birth to a daughter (who became a juvenile court
dependent) and had another child a few years later. (Ibid.)
Mother tried unsuccessfully to supervise and protect R.T. and
sought support from DCFS and law enforcement. She later
arranged for R.T. to live with maternal grandparents because
R.T.’s grandfather used to work with troubled youth and R.T.’s
history of falsely reporting abuse by mother made it difficult for
mother to discipline her. (Ibid.) R.T. struggled with “anger
management issues” as it was reported she threw a chair at her
maternal grandfather. (Ibid.) The juvenile court asserted
11
jurisdiction over R.T., reasoning that “ ‘the mother cannot control
[R.T.] so she has given her off to grandparents and they can’t
control her either.’ ” (Ibid.)
In affirming the juvenile court’s exercise of jurisdiction, our
Supreme Court directly embraced mother’s insistence that “she
was not at fault or blameworthy because she did everything
possible to control R.T.’s incorrigible behavior.” It also agreed
with mother that she “did not create’’ the danger that R.T. would
be at risk of serious physical harm. (R.T., supra, 3 Cal.5th at
p. 633.) From that baseline, the Court began with an analysis of
section 300: “ ‘Generally speaking, Section 300 defines
jurisdiction in terms of serious harm suffered by a child or the
substantial risk of such serious harm to a child. Although the
harm or risk of harm to the child must generally be the result of
an act, omission or inability of one of the parents or guardians,
the central focus of dependency jurisdiction is clearly on the child
rather than the parent.’ ” (R.T., at p. 626, quoting Seiser &
Kumli, Cal. Juvenile Courts Practice and Procedure (2017 ed.)
§ 2.14, p. 2–40.) The Court then framed the question at hand:
“[M]ust a parent in some way be blameworthy for being unable to
supervise or protect her child? Or does the parent’s failure or
inability alone support a juvenile court’s assertion of dependency
jurisdiction under section 300(b)(1)?” (R.T., at p. 627, fn.
omitted.) After extensively analyzing the statute, the Court
noted that “[b]ecause the Legislature has made parental
culpability (based on either willful or negligent conduct) a
requirement in some, but not all, grounds for asserting
dependency jurisdiction under section 300, we may conclude that
the omission of a culpability requirement in the first clause of
section 300(b)(1) ‘was purposeful.’ ” (R.T., at p. 630.) It found the
12
statute’s legislative evolution supported the conclusion that “by
including—and not repealing—the phrase ‘or inability’ in the first
clause of section 300(b)(1), the Legislature intended to include
children like R.T., i.e., those at substantial risk of serious
physical harm due to no fault of the parent, within the purview of
dependency jurisdiction.” (R.T., at p. 632.)
Like R.T.’s mother, here Mother argues her son’s
substantial risk of serious physical harm is not “as a result of”
her inability to protect or supervise him. She argues lack of
causation. Put another way, Mother maintains the risk of harm
to her son has nothing to do with what she did or did not do and
that her son’s condition was alone responsible for causing his
behavior.
In R.T., when faced with the “colorable claim based on
causation”, the Court noted “R.T. faced an ongoing risk of harm
based on her increasingly self-destructive behavior, behavior that
mother simply could not control” and the record “supports a
theory suggesting that R.T.’s disobedience was the reason mother
was unable to protect or supervise R.T.” (R.T., supra, 3 Cal.5th
at p. 634.) Nevertheless, acknowledging the causation argument
“has some merit,” the Court found substantial evidence to
support exercise of jurisdiction. “Whether it was R.T.’s
misbehavior and disobedience, or mother’s inability to supervise
or protect R.T., that initiated this cyclical pattern of conflict, does
not matter here. The basis for jurisdiction under section
300(b)(1) is whether the child is at ‘substantial risk’ of ‘serious
physical harm or illness.’ ” (R.T., at p. 634.) That fact was
undisputed, so that court concluded “there is little question that
mother was unable to ‘adequately’ supervise or protect R.T., as
required under section 300(b)(1).” (R.T., at p. 635.) Poignantly,
13
the Court concluded: “ ‘The loss of parental control is rarely if
ever attributable solely to the parent or the child. It is instead
the result of a long and complicated chain of actions and
reactions culminating in the child’s refusal to submit to parental
authority. To attempt to affix responsibility on one party or the
other is alien not only to the spirit and letter of the juvenile court
laws, but to any realistic view of family relationships.’ ” (Ibid.)
When the “child’s behavior places her at substantial risk of
serious physical harm, and a parent is unable to protect or
supervise that child, the juvenile court’s assertion of jurisdiction
is authorized under section 300(b)(1).” (R.T., at p. 637.)
We find R.T. is controlling authority on the facts before us.
We accept Mother’s thesis that Noah’s traumatic brain injury
prompts his reckless, disobedient and dangerous behavior.
Nonetheless, we find substantial undisputed evidence of an
unremitting and admitted cycle of physical altercations between
Mother and Noah; a persistent practice by Noah of carrying,
brandishing, and hiding knives, whether for his own protection as
he claims or for some other reason; an unwillingness or inability
by Noah to follow Mother’s instructions combined with founded
and unfounded accusations against her and a strong if misguided
belief that he needs to protect himself against her; and Mother’s
devoted, but ineffectual attempts to control his behavior, whether
through physical restraint or verbal direction. These facts place
Noah at substantial risk of serious physical harm. That Mother
is not culpable in “causing” this risk does not deprive the juvenile
court of jurisdiction.
14
DISPOSITION
The judgment of the juvenile court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
15