In re Anthony v. CA2/4 ( 2021 )


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  • Filed 4/19/21 In re Anthony V. CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
    opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    In re Anthony V. et. al., Persons                           B306356
    Coming Under the Juvenile
    Court Law.
    LOS ANGELES COUNTY                                          Los Angeles County
    DEPARTMENT OF                                               Super. Ct. No.
    CHILDREN AND FAMILY                                         20CCJP01552
    SERVICES,
    Plaintiff and Respondent,
    v.
    ANTHONY V. et. al.,
    Minors and Appellants
    APPEAL from orders of the Superior Court of Los Angeles
    County, Kim Nguyen, Judge. Reversed.
    Karen J. Dodd, under appointment by the Court of Appeal,
    for Appellants.
    Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
    County Counsel, Jessica S. Mitchell, Deputy County Counsel, for
    Plaintiff and Respondent.
    INTRODUCTION
    The juvenile court exercised jurisdiction over Anthony V.,
    M.V., and B.V. (collectively, “the V. minors”) under Welfare and
    Institutions Code section 300, subdivisions (a), (b), and (j).1 The
    court found the V. minors were at risk of serious physical harm
    due to their mother’s ex-boyfriend’s: (1) violent conduct toward
    their mother; (2) physical abuse of their younger half-sister; and
    (3) alcohol and methamphetamine abuse.
    On appeal, the V. minors contend the jurisdictional
    findings, and therefore the dispositional orders, pertaining to
    them should be reversed because: (1) the court improperly relied
    on allegations of physical abuse pertaining only to their two
    younger half-siblings to declare them dependents of the court;
    and (2) the record does not reflect that at the time of the
    adjudication hearing, they were at substantial risk of serious
    physical harm due to any inappropriate future conduct on the
    part of their mother’s ex-boyfriend. We agree and reverse.
    BACKGROUND
    E.D. (mother) has a total of eight children. Five of her older
    children, J.V., Alexis V., Anthony V., M.V., and B.V., are from her
    prior relationship with Alejandro V. At the time this case was
    initiated in January 2020, J.V. was an adult. Alexis was 17 years
    old, Anthony was 16 years old, M.V. was 14 years old, and B.V.
    1     All undesignated statutory references are to the Welfare
    and Institutions Code.
    2
    was 12 years old. Mother had not had contact with Alejandro in
    11 years.2
    M.D. is the father of mother’s two youngest children, A.D.
    and K.D. (collectively, “the D. minors”). At the time this case was
    initiated, A.D. was four years old and K.D. was three years old.
    They lived with mother along with their five older half-siblings in
    a two-bedroom apartment in Pomona. Up until December 2019,
    M.D. also resided with the family in the same household. He and
    mother had been in a relationship for the last five years.
    This case arose out of an incident that took place on
    December 1, 2019. That evening, mother and M.D. were lying on
    their bed with K.D., when K.D. kicked M.D. in a playful manner.
    M.D. became upset and hit K.D. with an open hand on the left
    thigh, leaving a red mark. K.D. began to cry. At that point, J.V.
    came into the bedroom and took her away.
    Mother became angry with M.D. for mistreating K.D. and
    told him not to hit her. In response, M.D. head-butted mother on
    the left side of her forehead. She countered by scratching him on
    the face. M.D. then pushed mother to the ground and kicked her
    on the upper part of her legs four times, causing her to sustain
    bruises. The altercation ended when one of the older children
    entered the bedroom and told them to calm down.
    M.D. left the home on December 3, 2019. He did not return
    until approximately two weeks later, when he came to pick up his
    truck. At that point, mother told M.D. not to return.
    Subsequently, mother went to the Department of Public
    Social Services to seek additional resources. There, she reported
    2     Mother has another adult daughter, G.N. The record does
    not indicate who G.N.’s father is, or where she resided
    throughout the underlying dependency proceedings.
    3
    the December 1 incident to a social worker, who encouraged her
    to file a police report. Consequently, on January 7, 2020, mother
    reported the incident to the Pomona Police Department. Her
    police report prompted a referral to the Department of Children
    and Family Services (Department), which was received the next
    day.
    During the Department’s initial investigation, mother
    disclosed two other incidents where M.D. exhibited violent
    behavior in the household. The first took place in October 2019,
    when she and M.D. got into an argument in their bedroom. Alexis
    intervened and tried to defend her, at which point M.D. grabbed
    him by the neck. They got into a fight, and mother had to
    separate them. The second incident occurred in November 2019,
    when M.D. forced mother to have sexual intercourse with him
    against her will, causing her injury requiring medical attention.
    Mother also reported that Alexis, who used to work with
    M.D., told her he saw M.D. using crystal methamphetamine at
    work. Although mother stated she had not seen M.D. with any
    drug paraphernalia at home, she noticed he was more irritable
    and was not sleeping as much.
    On March 20, 2020, the Department filed a petition on
    behalf of all six of mother’s minor children under section 300,
    subdivisions (a), (b)(1), and (j). The petition alleged the children
    were at substantial risk of serious physical harm due to: (1)
    M.D.’s violent conduct toward mother and her failure to protect
    from his conduct (counts a-1 and b-1); and (2) M.D.’s
    methamphetamine abuse and mother’s failure to protect from his
    substance abuse (count b-3). The petition further alleged the D.
    minors were at serious risk of physical harm due to M.D.’s
    physical abuse of K.D. during the December 1 incident (counts a-
    4
    2, b-2, and j-1). On this particular point, however, the petition’s
    allegations made no mention of Alexis, Anthony, M.V., or B.V.
    Throughout the five-month period leading up to the
    adjudication hearing held on May 7, 2020, mother, J.V., Alexis,
    and the V. minors told the Department they had not seen, spoken
    to, or otherwise heard from M.D. since he left the home in
    December 2019. Mother reported she was unaware of M.D.’s
    whereabouts, and that the phone number she previously used to
    contact him had been disconnected. The Department made
    several efforts to obtain contact information for M.D. and
    Alejandro to notify them of the dependency proceedings. Its
    attempts ultimately were unsuccessful.
    At the adjudication hearing, the Department informed the
    court that it arrived at an agreement with mother to amend the
    petition by striking the allegations pertaining to her, thereby
    rendering her a non-offending parent. Subsequently, the juvenile
    court dismissed Alexis from the petition at his request, as he
    would be turning 18 years old in the next week. With respect to
    the V. minors and the D. minors, the court sustained all the
    counts as amended,3 and declared them dependents of the court
    under section 300, subdivisions (a), (b), and (j).
    Proceeding to disposition, the juvenile court removed the
    children from their respective fathers and placed them with
    mother under Department supervision. Mother’s case plan
    pertaining to the V. minors required her to participate in
    individual counseling and a support group for domestic violence
    3     In addition to dismissing Alexis from the petition, the
    juvenile court amended count b-3 to “conform to proof” and state
    the children were at risk of harm due to M.D.’s alcohol abuse in
    addition to his abuse of methamphetamine.
    5
    victims. The V. minors were ordered to attend individual
    counseling and conjoint family counseling.
    The V. minors timely appealed.
    DISCUSSION
    I.    Applicable Law and Standard of Review
    Under section 300, subdivision (a), the juvenile court may
    exercise jurisdiction over a child if it finds “[t]he 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 or guardian.” Pursuant to section 300,
    subdivision (b)(1), the juvenile court may exercise jurisdiction
    over a child if it finds “[t]he 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[.]”
    Lastly, per section 300, subdivision (j), the court may exercise
    jurisdiction over a child upon finding “[t]he 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.”
    “‘The basic question under section 300 is whether
    circumstances at the time of the hearing subject the minor to the
    defined risk of harm.’ [Citation.]” (In re J.N. (2010) 
    181 Cal.App.4th 1010
    , 1022, italics added.) “While past harmful
    conduct is relevant to the current risk of future physical harm to
    a child [citations], the evidence as a whole must be considered.
    ‘[P]revious acts of neglect, standing alone, do not establish a
    6
    substantial risk of harm; there must be some reason beyond mere
    speculation to believe they will reoccur. [Citations.]’ [Citations.]”
    (Id. at p. 1025.)
    We review a juvenile court’s jurisdictional orders for
    substantial evidence. (In re Yolanda L. (2017) 
    7 Cal.App.5th 987
    ,
    992.) Under this standard, “we view the record in the light most
    favorable to the juvenile court’s determinations, drawing all
    reasonable inferences from the evidence to support the juvenile
    court’s findings and orders.” (Ibid.) “We do not reweigh the
    evidence, evaluate the credibility of witnesses, or resolve
    evidentiary conflicts. [Citation.]” (In re Dakota H. (2005) 
    132 Cal.App.4th 212
    , 228.)
    “Substantial evidence must be of ponderable legal
    significance. It is not synonymous with ‘any’ evidence. [Citation.]
    The evidence must be reasonable in nature, credible, and of solid
    value. [Citation.]” (In re Dakota H., supra, 132 Cal.App.4th at p.
    228.) “The appellant has the burden of showing there is no
    evidence of a sufficiently substantial nature to support the
    finding or order. [Citations.]” (Ibid.) “‘ . . . “The ultimate test is
    whether it is reasonable for a trier of fact to make the ruling in
    question in light of the whole record.” [Citation.]’ [Citation.]” (In
    re Yolanda L., supra, 7 Cal.App.5th at p. 992.)
    II.   Analysis
    The V. minors contend the juvenile court’s jurisdictional
    findings should be reversed. They advance two arguments in
    support of this position. We address each in turn.
    First, the V. minors contend the court erred by exercising
    jurisdiction over them based on counts a-2, b-2, and j-1, which
    7
    pertained to M.D.’s physical abuse of K.D. They argue
    jurisdiction was improper based on those counts because the
    allegations in support thereof only pertained to the D. minors,
    and did not mention the V. minors. We agree.
    As the V. minors correctly observe, the Department did not
    allege they were at risk of harm due to M.D.’s physical abuse of
    K.D. The amended petition’s only allegations on this point were
    pled in counts a-2, b-2, and j-1, which were identical and read as
    follows: “On 12/1/19, the children [A.D.] and [K.D.]’s father,
    [M.D.], physically abused the child [K.D.] The father struck the
    child [K.D.]’s left thigh with the father’s hand resulting in the
    child sustaining a red mark to the child’s thigh. Such physical
    abuse of the children by the father caused the child unreasonable
    pain and suffering. The physical abuse of the child by the father
    endangers the child’s physical health and safety and places the
    child and the child’s sibling [A.D.] at serious risk of physical
    harm.” (Italics added.)
    At the adjudication hearing, however, the juvenile court
    found all of mother’s minor children, including the V. minors,
    were at risk of harm due to M.D.’s physical abuse of K.D.
    Specifically, in sustaining counts a-2, b-2, and j-1, the court
    stated: “[K.D.] is a very, very, very young child, and clearly [M.D.]
    has physically abused her and there was a red mark. I think that
    was serious abuse, given her very young age, and I think given
    all of the obvious . . . violent acts done by [M.D.], there is an
    ongoing risk of harm. I think the siblings remain at [risk of] harm
    as well, and so the Court will sustain [those counts].”4 (Italics
    4      The Department states it “reads the case differently” and
    asserts the juvenile court made jurisdictional findings pertaining
    solely to the D. minors when it sustained counts a-2, b-2, and j-1.
    8
    added.) In so doing, the juvenile court erred by making
    jurisdictional findings pertaining to the V. minors based on
    allegations not found in the petition. (See In re Andrew S. (2016)
    
    2 Cal.App.5th 536
    , 544 [reversing jurisdictional finding based on
    the father’s failure to protect his children from the mother’s
    physical abuse because “the Department never made any such
    allegation,” and therefore the father “had no notice or opportunity
    to defend against it. [Citation.]”].)
    Next, the V. minors argue that the other jurisdictional
    findings pertaining to them are not supported by substantial
    evidence. Specifically, they contend the record does not establish
    that at the time of the adjudication hearing, they were at risk of
    serious physical harm due to M.D.’s violent conduct toward
    mother or substance abuse. For the reasons discussed below, we
    again agree with the V. minors’ argument.
    First, the evidence demonstrates mother is not going to
    continue her relationship with M.D. Mother reported the
    relationship is over, and that she has no plans to reunify with
    him. She acknowledged M.D. was overly controlling, as he did not
    allow her to work, go shopping alone, or get dressed up. She
    In the Department’s view, the record indicates “the court
    misspoke, or the reporter misheard when stating ‘siblings’ in [the
    findings on] the physical abuse counts.” We conclude the V.
    minors’ construction of the record is accurate. The minute orders
    from the adjudication hearing state the V. minors were declared
    dependents of the court under section 300, subdivisions (a), (b),
    and (j). The amended petition’s only allegations under
    subdivision (j), however, related to M.D.’s physical abuse of K.D.
    Accordingly, the record suggests the juvenile court did, in fact,
    rely on those allegations in exercising jurisdiction over the V.
    minors.
    9
    related she “feels relieved now that [M.D.] is gone.” Since ending
    the relationship, mother has been able to secure a job, and
    reported that, overall, she “‘feel[s] so much better[.]’”
    Second, the record reflects M.D. is not going to reside with
    mother and the V. minors in the future. As noted above, in the
    five-month period following his departure from the home in mid-
    December 2019, M.D. has not returned. Since then, M.D. has not
    seen or had any contact with mother or any of her children. His
    whereabouts were unknown at the time of the adjudication
    hearing, and mother reported she did not have updated contact
    information for him. Mother also related she would not allow
    M.D. to return to the household, that she has told all of her
    children they cannot see their fathers, and that she planned to
    move to a new home. In light of this evidence, we reject the
    Department’s contention that M.D. will likely “find his way back
    into [the family’s] lives” because he and mother have two young
    children together. The Department’s assertion lacks evidentiary
    support, and is nothing more than “pure speculation” about
    M.D.’s future conduct, which cannot support a finding of
    dependency. (See In re Steve W. (1990) 
    217 Cal.App.3d 10
    , 22-23.)
    Lastly, the evidence shows mother has been cooperative
    with the Department and expressed willingness to participate in
    services, including domestic violence classes, mental health
    services, and therapy. Following the December 1 incident, she
    initially reached out to the Department of Public Social Services
    for assistance, and agreed to file a police report per the social
    worker’s recommendation. When the Department got involved,
    mother agreed to a safety plan. She has been forthright when
    speaking with the Department, the police, and representatives
    from other agencies. Mother has also expressed willingness to
    10
    participate in a Child and Family Team Meeting, and agreed to
    schedule the meeting when it is appropriate to hold it in-person,
    given the safety concerns presented by the COVID-19 pandemic.
    In summary, the evidence fails to establish that at the time
    of the adjudication hearing, the V. minors were at substantial
    risk of serious physical harm due to any inappropriate conduct by
    M.D. (See In re J.N., supra, 181 Cal.App.4th at pp. 1022, 1025.)
    Accordingly, we reverse the court’s jurisdictional findings
    pertaining to them. Those findings therefore cannot support the
    dispositional orders concerning the V. minors. (See In re Andrew
    S., supra, 2 Cal.App.5th at pp. 544, 548.) Consequently, we
    reverse those orders as well.
    11
    DISPOSITION
    The jurisdictional findings and dispositional orders
    pertaining to Anthony V., M.V., and B.V. are reversed.
    CURREY, J.
    We concur:
    MANELLA, P.J.
    COLLINS, J.
    12
    

Document Info

Docket Number: B306356

Filed Date: 4/19/2021

Precedential Status: Non-Precedential

Modified Date: 4/19/2021