In re Andrew W. CA2/7 ( 2021 )

Filed 10/22/21 In re Andrew W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ANDREW W. et al., Persons B310133, B311326
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. 19LJJP00792A-C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
TYLER W.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Robin R. Kesler, Juvenile Court Referee. Dismissed in
part and affirmed in part.
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 Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Tyler W., mother of now seven-year-old Andrew W., six-
year-old Jonathon D.,1 and three-year-old Ethan W., appeals from
the juvenile court’s jurisdiction findings and disposition orders
declaring her children dependents of the court under Welfare and
Institutions Code section 3002 and removing them from her
custody, and from orders awarding the children’s respective
fathers sole custody and terminating jurisdiction. The custody
orders and the orders terminating jurisdiction render Tyler’s
appeal from the disposition orders moot. But because an error in
the juvenile court’s jurisdiction findings could adversely affect
Tyler’s custody rights, and because Tyler appealed from the
custody orders and orders terminating jurisdiction, the appeal
from the jurisdiction findings is not moot, although we conclude
substantial evidence supported the court’s findings. Because
Tyler makes no substantive argument the custody orders or
orders terminating jurisdiction were erroneous, apart from her
1 According to Tyler, Jonathon’s name is misspelled
throughout the record as “Johnathan.”
2 Statutory references are to the Welfare and Institutions
Code.
2
arguments regarding the jurisdiction findings and disposition
orders, we affirm the custody orders and orders terminating
jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Department Receives Multiple Referrals
Concerning the Family
Beginning in 2017 the Los Angeles County Department of
Children and Family Services received several reports of
potential abuse or neglect involving the family. In one instance,
on July 29, 2019, a neighbor in Tyler’s apartment building found
Andrew and Jonathon “wandering around the complex, ‘about
100 feet’ from the home” without any adult supervision.3 The
neighbor asked the children where their parents were, and
Andrew said his “mother was gone.” The neighbor kept the
children until law enforcement arrived.
Tyler explained that, because the children’s babysitter,
Reina, had not arrived when Tyler needed to leave for work,
Tyler told Reina that she would lock the door to the apartment
and that five-year-old Andrew would unlock the door for Reina
when she arrived. Tyler left the apartment at 6:00 p.m. and
“checked-in” with Reina half an hour later. Tyler said Reina told
her the children were fine and sent her a text message with a
photo of the children asleep. Law enforcement officers
“observe[d] the text messages between [Tyler] and Reina and
confirm[ed] [Tyler’s] statements.” Tyler and a police officer
attempted to contact Reina, but Reina did not answer her phone
3 It is unclear whether Ethan was in the apartment or was
staying with his father at the time.
3
or respond to Tyler’s messages. The Department concluded the
reported information did not “meet criteria for child abuse or
neglect.”
On September 16, 2019 someone notified the child abuse
hotline that Tyler brought then 14-month-old Ethan to the
hospital with second-degree burns on his left palm and fingers.
Tyler told hospital staff that four days earlier Ethan was burned
by “an unknown object” at his daycare center, but that the center
did not provide an incident report. The burns were infected,
blistered, and festering. The caller stated that Tyler’s story did
not make sense because a daycare center generally provides
reports of injuries occurring at the center. The caller also
observed that Ethan’s burns looked as though they were made by
a curling iron and that Ethan’s two brothers were “dirty and
unkempt.”
After Tyler failed to return the Department’s telephone
calls, a social worker contacted Jonathon and Ethan’s daycare
center and spoke with a teacher. The teacher said that the
children did not come to school dirty, but that Jonathon would
come to school “with no underwear and wearing the same clothes
for two days.” The teacher said the children “at times” had no
socks or sweaters. The teacher was aware of the burn on Ethan’s
hand and told the social worker that Tyler told her it was caused
by a curling iron.
Andrew and Jonathon’s father, Christopher D., told the
Department he had not seen his children for two months because
Tyler “changed the family law order” governing his visits to “no
visitation.” Christopher said he had “concerns” about the
children living with Tyler because he observed bruises on
Andrew’s legs where Christopher thought Tyler had hit Andrew.
4
Christopher’s mother told the Department that Andrew and
Jonathon smelled and had no socks or underwear when they
visited her. Andrew and Jonathon’s paternal aunt said the
children’s hair was dirty when they visited their grandmother.
Ethan’s paternal grandmother also told the Department that
Ethan was “dirty” and that his clothing smelled when he visited
his father, Alex G. When a social worker observed the children at
their respective schools, however, they appeared well groomed
and properly dressed.
On October 29, 2019, while the Department was
investigating the circumstances of Ethan’s burn, the Department
received another referral concerning an incident that occurred a
few months earlier. On August 17, 2019 Tyler took Ethan to visit
his father, Alex. Alex said Tyler was angry with him because he
had not been returning her phone calls or text messages. Alex
saw Tyler parked across the street from his house, and he went
outside to get Ethan. Tyler accelerated toward Alex and
“abruptly stopped her car about 4 feet from him.” Tyler got out of
her car and began yelling at Alex and his wife, Wendy, who was
standing in the doorway.4 Alex and Wendy went back inside the
house and watched on security cameras as Tyler threw rocks at
Alex’s car, causing a dent, before driving away with Ethan still in
her car. Alex called the police and unsuccessfully sought a
restraining order against Tyler. The People charged Tyler with
felony vandalism.
A social worker questioned Tyler about the incident at
Alex’s house. Tyler said that she never tried to hit Alex with her
car and that Wendy came out of the house “wanting to fight.”
4 The record refers to Wendy as both Alex’s wife and Alex’s
girlfriend, but Alex testified Wendy is his wife.
5
Tyler said she did not want Ethan spending time with Wendy
because there was a restraining order prohibiting Wendy from
having contact with Wendy’s child. A family law protective order
in force at the time prohibited Ethan from sleeping overnight at
Alex’s house because of the restraining order against Wendy. Yet
Ethan had recently stayed with Alex over the weekend while
Tyler went to a concert. During Tyler’s meeting with the social
worker, Tyler admitted Ethan burned his hand when he climbed
up on a stepstool and reached for a recently unplugged curling
iron. Tyler claimed she immediately took Ethan to a doctor.
The Department also obtained incident reports from
Jonathon and Ethan’s daycare center showing that, between
June 10, 2019 and October 29, 2019, there were 17 reports of
injuries sustained somewhere other than at the center. These
reports included “‘bad diaper rash,’” various scratches and red
marks on the children’s bodies, and bruises and marks on their
faces. One incident report stated Jonathon showed a teacher his
underwear and told the teacher “there was ‘po[o]p from last
night. Mommy didn’t want to change me because she said I was
too sick.’”
B. The Department Detains the Children and Files a
Petition Under Section 300
On October 30, 2019 the Department detained the children,
placed Andrew and Jonathon with their paternal grandmother,
and placed Ethan with his father. At the detention hearing on
November 5, 2019 the juvenile court removed the children from
Tyler and ordered monitored visitation. The court also ordered
the Department to provide Tyler, among other things, counseling,
6
parenting classes, and a domestic violence program, as
determined by a multidisciplinary assessment team.
On November 4, 2019 the Department filed a petition
under section 300 alleging six counts, only two of which are at
issue in this appeal.5 Count b-1 alleged under section 300,
subdivision (b)(1), the children came within the jurisdiction of the
juvenile court as a result of Tyler’s “assaultive behavior” directed
at Alex when she threw rocks at his car in Ethan’s presence.
Count b-3 alleged under section 300, subdivision (b)(1), that
Tyler’s failure to supervise the children allowed the children to
wander around the apartment complex alone and Ethan to burn
his hand and that such “failure to provide appropriate parental
care and supervision . . . endanger[ed] the [children’s] physical
health, safety and well-being, create[d] a detrimental home
environment and place[d] the children at risk of serious physical
harm, damage and danger.”
Following the children’s detention, a social worker
interviewed Tyler. Tyler said that, after Ethan burned his hand,
she ran cold water on it and treated it with a cream. When he
developed blisters two days later, she took him to the doctor and
to a follow-up visit a week later. She said, “‘I did what I was
supposed to do.’” The record does not indicate whether Tyler
explained why this account of the incident differed from her
original explanation.
In connection with the allegation Tyler’s failure to
supervise the children led to them wandering around the
apartment complex, Tyler said she never left the children
5 The juvenile court dismissed four counts alleged under
section 300, subdivisions (a), (b), and (j).
7
unattended or unsupervised. She said that Reina had watched
the children in the past without incident, that she sent a text
message to Reina asking how the children were, and that Reina
responded they were fine. Tyler said that, shortly after she
received the text message from Reina showing the children
asleep, a neighbor called Tyler to tell her Tyler’s door was “‘wide
open’” and “nobody was home.” Tyler said she had not heard
from or spoken with Reina since the incident.
A contested jurisdiction hearing began on February 6, 2020.
Regarding the rock-throwing incident in August 2019, Tyler
testified that, because Wendy came out of the house “aggressively
calling [Tyler] a bitch,” Tyler “kept having to tell [Alex] . . . ‘put
your bitch in check.’” Tyler said that she did not “attempt to
fight” Wendy, but that: “I prepared myself because she was
getting aggressive and coming out of the house, so I felt like she
was going to attack me.” Tyler denied driving at Alex or
throwing rocks at his car after he and Wendy went inside their
house. Tyler testified that, from what she learned in the anger
management classes she had taken so far, if such an incident
ever occurred again, she would get in her car and leave.
Regarding the incident where neighbors found Andrew and
Jonathon wandering in the apartment complex unsupervised,
Tyler testified she eventually spoke with Reina, who said she
“left early because of a family emergency.”
More generally, Tyler testified she received approximately
three phone calls every week from Jonathon and Ethan’s daycare
center reporting injuries, “mostly regarding Ethan.” She
admitted the boys were “a handful,” but she said she did not have
difficulty handling them.
8
The court recessed the hearing with the intention of
resuming on March 27, 2020. As a result of the COVID-19
pandemic, however, the hearing did not resume until
September 4, 2020. Meanwhile, on February 25, 2020 Tyler
pleaded no contest to misdemeanor vandalism in connection with
the rock-throwing incident. The criminal court ordered Tyler to
complete 52 weeks of domestic violence classes and 15 days of
community service and to pay restitution. A few days later a
Department social worker interviewed Alex’s next-door neighbor
who witnessed the incident. The neighbor said she saw Alex
walk outside his house toward Tyler’s car, which was parked
across the street. Tyler “‘started to drive and she accelerated the
car like she was going to hit [Alex].’” Tyler stopped the car, got
out, and “‘start[ed] yelling at [Alex], flailing her hands in the air.
She was belligerent, vulgar and she was just yelling. She was
egging on [Alex’s] wife, saying “come out here you bitch” and
screaming at her. She was just really threatening and way out of
hand. . . . [Alex] went inside the house, . . . and [Tyler] was just
screaming out there. She walked over to my neighbors, she
pick[ed] up these river rocks and hit[ ] his car.’” The neighbor
said Tyler got back into her car and left.
On March 1, 2020 the Department learned Tyler failed to
return Ethan to his father’s family following a visit scheduled for
12:00 p.m. to 6:00 p.m. Under the visitation agreement, Tyler
would release Ethan to Andrew and Jonathon’s paternal
grandmother, Mrs. D., who would deliver Ethan to his paternal
grandmother, Mrs. G., because Mrs. G. had a restraining order
against Tyler. Mrs. G. would then return Ethan to his father.
On February 29, 2020 Mrs. G. was running late to pick up Ethan
because a car accident caused more traffic than usual. Mrs. D.
9
told Tyler that Mrs. G. would be a little late and suggested Tyler
leave Ethan with her, but Tyler said she would “‘bring it up with
Court’” and left the location of the meeting with Ethan at
6:16 p.m. Mrs. G. arrived two minutes later. The two
grandmothers went to Tyler’s apartment at 7:15 p.m.,
accompanied by deputies from the Lancaster office of the Los
Angeles County Sheriff’s Department. Tyler did not answer her
door after several minutes of knocking and ringing the doorbell,
even though her car was in the parking lot. The deputies told the
grandmothers there was nothing more they (the deputies) could
do.
The next day Tyler sent some sort of correspondence to the
Department stating that, after Mrs. G. did not show up for
Ethan, Tyler went to the Palmdale office of the Los Angeles
County Sheriff’s Department and showed a deputy her visitation
agreement. The deputy reportedly informed Tyler she could take
Ethan home because Mrs. G. did not attempt to contact Tyler or
inform her that she would be late. Tyler said the deputy told her
Mrs. G.’s conduct was considered “abandonment.” The
Department attempted to contact Tyler without success.
Through Tyler’s grandmother, the Department asked Tyler to
bring Ethan to the Department’s office, which Tyler did on
March 2, 2020. Tyler said she did not hear Mrs. D. tell her that
Mrs. G. was going to be late to pick up Ethan. Tyler claimed she
called Alex but did not leave him a message. The Department
told Tyler her future visits with Ethan would be monitored by the
Department at the Department’s offices.
By mid-March 2020 the pandemic forced the Department’s
offices to close. Tyler and the Department worked through
various arrangements for monitored video and in-person visits
10
with the children. During a visit with Andrew and Jonathon in
July 2020 that Tyler’s mother was supposed to monitor, Tyler’s
mother allowed the children to spend the afternoon unmonitored
at Tyler’s apartment. The Department revoked the authorization
of Tyler’s mother to monitor visits and arranged for in-person
visits with all three children at a park with a third-party
monitor.
The pandemic also interfered with Tyler’s services,
including parenting and anger management classes. The director
of Tyler’s anger management classes said that his company made
“homework handouts” available to all clients so “they could
receive credit and still make progress,” but that Tyler did not
take advantage of those resources after the pandemic ended in-
person classes. As of August 31, 2020, Tyler had completed 14 of
52 domestic violence classes.
C. The Juvenile Court Sustains the Petition, Declares the
Children Dependents, and Awards Custody to the
Children’s Fathers
At the continued jurisdiction hearing on September 18,
2020 the juvenile court sustained counts b-1 and b-3 concerning
the rock-throwing incident and the incidents where Tyler left the
children unsupervised.6 Regarding the rock-throwing incident,
6 As sustained, count b-1 alleged: “On or about 8/17/19, the
children [Andrew, Jonathon, and Ethan]’s mother [Tyler]
engaged in violent and assaultive behavior in that the mother
threw rocks at the father [Alex], resulting in the mother striking
the [father’s] vehicle in the presence of the child, Ethan. The
violent conduct by the mother, endangers the children’s physical
health and safety, creates a detrimental home environment, and
places the children at risk of serious physical harm, damage and
11
the court stated that Tyler had been convicted of vandalism
(which confirmed, contrary to her denial, she threw rocks at
Alex’s car), that Ethan was in Tyler’s car when the incident
occurred, and that Tyler was “somewhat combative.” Regarding
Tyler’s failure to adequately supervise the children, the juvenile
court stated that Tyler’s delay in seeking medical attention after
Ethan burned his hand on a curling iron was “not really the
primary focus, but [it was] part of the focus of that count.”
Instead, the court focused on the episode where Tyler left the
children unsupervised while waiting for the babysitter to arrive.
The court stated it was not “appropriate to lock up the door and
leave kids of that age alone, even for a few minutes, [and] say a
five-year-old is going to unlock the door.”
Before the disposition hearing on December 30, 2020 the
Department submitted additional reports showing Tyler
continued to engage in aggressive behavior. Christopher,
Andrew and Jonathon’s father, reported that his neighbor’s
security cameras recorded Tyler near his home at 1:30 a.m. on
September 1, 2020. The next morning he found the window of his
danger.” Sustained count b-3 alleged: “On a prior occasion, the
children [Andrew, Jonathon, and Ethan]’s mother [Tyler] failed
to provide appropriate parental care and supervision for the
children, resulting in the children being found w[a]ndering
around an apartment complex. On or about 9/29/19, the mother
failed to provide adequate supervision for the child, Ethan,
resulting in the child gaining access to an electric curling iron
and the child sustaining a burn on the child’s hand. Such failure
to provide appropriate parental care and supervision for the
children, endangers the child’s physical health, safety and well-
being, creates a detrimental home environment and places the
children at risk of serious physical harm, damage and danger.”
12
girlfriend’s car “had been vandalized.” Christopher said his
girlfriend already had a restraining order against Tyler because
Tyler previously broke the same window of the car. Tyler
claimed that she was at work in Bakersfield until 12:30 a.m. and
that she could not have been at Christopher’s house by 1:30 a.m.
The Department could not confirm Tyler’s work schedule with a
supervisor.
On October 6, 2020 Mrs. D. called the Department to report
that Christopher received a call from a hospital where Jonathon
was scheduled to have surgery. The caller told Christopher that
Tyler had called, yelled at the receptionist to cancel the surgery,
and threatened to sue the hospital. Tyler denied the incident
occurred. The Department also reported that Tyler had attended
21 of 52 domestic violence classes, 21 of 26 anger management
classes, and nine of 26 parenting classes.
At the March 30, 2020 disposition hearing the juvenile
court found that Tyler failed to participate in or complete
domestic violence and anger management classes and that she
generally had gained little insight into her behavior. The court
stated it was unclear whether Tyler would ever “be able to
acknowledge her part in why these kids are before me” without
“substantial individual counseling.” The court declared the
children dependents of the court and found by clear and
convincing evidence it was necessary to remove the children from
Tyler’s custody because there was a substantial danger to the
physical health, safety, protection, or physical or emotional well-
being of the children if left in her custody and there were no
reasonable means to protect them without removing them from
her care and custody. Based on Tyler’s past behavior, the court
stated, Tyler did not have the ability to coparent at that time.
13
The court awarded sole legal and physical custody to the
children’s fathers and continued Tyler’s monitored visitation and
domestic violence and anger management classes. Tyler timely
appealed.
D. The Juvenile Court Issues Custody Orders and
Terminates Jurisdiction
On January 15, 2021 the juvenile court received, signed,
and filed a juvenile custody order for each child. Finding the
conditions that justified jurisdiction under section 300 no longer
existed, the court terminated jurisdiction. On January 21, 2021
the court amended the custody orders for Andrew and Jonathon.
Tyler timely appealed.7 We ordered Tyler’s appeal from the
disposition orders to be considered with her appeal from the
custody orders and orders terminating jurisdiction for purposes of
oral argument and decision.
7 The notices of appeal identify the findings and orders
appealed from as “Dispositional Findings,” but they list the dates
the court filed the juvenile custody orders and the orders
terminating jurisdiction. “A notice of appeal shall be ‘“liberally
construed so as to protect the right of appeal if it is reasonably
clear what [the] appellant was trying to appeal from, and where
the respondent could not possibly have been misled or
prejudiced.”’” (In re J.F. (2019) 39 Cal.App.5th 70, 75; see In re
Joshua S. (2007) 41 Cal.4th 261, 272.) It is reasonably clear
Tyler intended to appeal from the custody orders and the orders
terminating jurisdiction, and the Department does not argue it
was misled or prejudiced by the apparent typographical errors in
the notices of appeal.
14
DISCUSSION
A. Tyler’s Appeal from the Jurisdiction Findings Is Not
Moot, But Her Appeal from the Disposition Orders Is
Tyler acknowledges that “an order terminating juvenile
court jurisdiction generally renders an appeal from a previous
order moot.” (See In re Rashad D. (2021) 63 Cal.App.5th 156, 163
(Rashad D.); In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) She
argues, however, her appeal from the jurisdiction findings and
disposition orders is not moot because she also appealed from the
orders terminating jurisdiction and modifying her custody and
she seeks to have the custody orders reversed. Tyler is half right.
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”].) But where, as here, the parent appeals from
the order terminating jurisdiction and the custody order, an
appeal from jurisdiction findings is not moot where the sustained
findings have an adverse effect on a parent’s custody or visitation
rights. (See Rashad D., supra, 63 Cal.App.5th at p. 159 [“the
parent must appeal not only from the jurisdiction finding . . .
order but also from the orders terminating jurisdiction and
modifying the parent’s prior custody status”].) Thus, the juvenile
court’s order terminating jurisdiction did not moot Tyler’s appeal
from the jurisdiction findings because the court issued a custody
order adverse to Tyler based on those findings, and Tyler
appealed from the custody orders and orders terminating
15
jurisdiction. (See Rashad D., at p. 164.) We can provide Tyler
effective relief in these circumstances because, if we reverse the
order terminating dependency jurisdiction, the juvenile court will
have jurisdiction “to conduct further hearings in the now-closed
case, including modification of its custody order.” (Ibid.)
A juvenile court’s custody and visitation order (commonly
known as an “exit order”),8 however, supersedes disposition
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 no longer adversely
affects Tyler, and nothing we could do in this appeal can grant
her any relief from an order that essentially no longer exists.9
(See In re E.T. (2013) 217 Cal.App.4th 426, 436 [“[a]n appeal may
become moot where subsequent events, including orders by the
juvenile court, render it impossible for the reviewing court to
8 Section 362.4, subdivision (a), provides that, if a juvenile
court terminates jurisdiction over a dependent child, 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.)
9 The only aspects of the disposition orders Tyler challenges
are those removing the children from her custody.
16
grant effective relief”].) Tyler’s appeal from the disposition order
is moot.
B. Substantial Evidence Supported the Juvenile Court’s
Jurisdiction Findings
1. 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.) 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. (2019) 32 Cal.App.5th 840, 848; see
In re R.T. (2017) 3 Cal.5th 622, 624; In re Ma.V. (2021)
64 Cal.App.5th 11, 21-22.)
“A dependency court is not required to ‘wait until a child is
seriously abused or injured to assume jurisdiction and take steps
necessary to protect the child’” (In re J.M. (2019) 40 Cal.App.5th
913, 921; see In re Kadence P. (2015) 241 Cal.App.4th 1376,
1383), but “‘the question under section 300 is whether
17
circumstances at the time of the hearing subject the minor to the
defined risk of harm’” (In re Ma.V., supra, 64 Cal.App.5th at
p. 23). The court may consider past events in deciding whether a
child currently needs the court’s protection. (In re J.N. (2021)
62 Cal.App.5th 767, 775; see In re Ma.V., at p. 23; In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.) “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; see In re Ma.V., at p. 23 [there must be some reason
to believe acts creating a risk of harm to the child may continue
in the future]; In re J.N., at p. 775 [there must be “a nexus
between the parent’s past conduct and the current risk of
harm”].)
“‘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 I.J. (2013) 56 Cal.4th 766, 773; see In re Drake M. (2012)
211 Cal.App.4th 754, 762.) Thus, we can affirm the juvenile
court’s jurisdiction findings if substantial evidence supported
count b-1 or b-3.
We review challenges to the sufficiency of the evidence
underlying jurisdiction findings for substantial evidence. (In re
Ma.V., supra, 64 Cal.App.5th at p. 22.) “‘“In making this
determination, we draw all reasonable inferences from the
18
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., supra, 56 Cal.4th at
p. 773; see In re Caden C. (2021) 11 Cal.5th 614, 640 [“In
reviewing factual determinations for substantial evidence, . . .
[t]he determinations should ‘be upheld if . . . supported by
substantial evidence, even though substantial evidence to the
contrary also exists and the trial court might have reached a
different result had it believed other evidence.’”]; In re Israel T.
(2018) 30 Cal.App.5th 47, 51 [“On appeal, ‘“we must uphold the
court’s [jurisdiction] findings unless, after reviewing the entire
record and resolving all conflicts in favor of the respondent and
drawing all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support the
findings.”’”].)
“‘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., supra, 32 Cal.App.5th at
p. 848.) “‘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 Ma.V., supra, 64 Cal.App.5th
19at p. 22 [“Substantial evidence indicates more than a smidgeon or
trace; it must be meaningful and significant and cannot be
merely speculative.”]; 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 R.V. (2012) 208 Cal.App.4th 837, 843.)
2. Substantial Evidence Supported the Juvenile
Court’s Findings Under Count b-3
Tyler argues substantial evidence did not support the
juvenile court’s findings under count b-3 that she failed to
adequately supervise the children. Most of Tyler’s arguments
concern the incident in which neighbors found Andrew and
Jonathon wandering unsupervised around the apartment
complex. Reviewing the evidence in the record in its entirety,
including reasonable inferences from the evidence, we conclude
substantial evidence supported the juvenile court’s jurisdiction
finding under count b-3.
Tyler first argues there was no evidence she was
responsible for the lack of supervision. “Specifically,” she argues,
her “actions did not cause the minors to sneak out of the home
and wander around the apartment complex. Rather, that was
directly attributable to the negligent conduct of [the babysitter]
. . . .” But as the juvenile court found, Tyler admittedly left three
very young children alone in the apartment. All three children
were of “‘tender years’” for whom “‘the absence of adequate
supervision and care poses an inherent risk to their physical
health and safety.’” (In re Drake M., supra, 211 Cal.App.4th at
20
p. 767; accord, In re Natalie A. (2015) 243 Cal.App.4th 178, 186.)
That risk was obvious given the burn to Ethan’s hand, which
occurred when Tyler’s back was turned only momentarily, and
the children’s admitted rambunctiousness, which resulted in
multiple injuries observed by daycare center employees. (See
In re K.B. (2021) 59 Cal.App.5th 593, 602 [“With impulsive urges
and without much judgment about what could go wrong, children
need supervision.”].) Although nothing in the record indicates for
certain how long the children were alone before the babysitter
arrived, it was long enough for the children to injure themselves
or each other.
Next, Tyler argues that, because the Department initially
determined the incident did not meet the criteria for child abuse
or neglect, evidence of the incident cannot support the juvenile
court’s jurisdiction. But “‘[f]acts supporting allegations that a
child is one described by section 300 are cumulative.’” (In re T.V.
(2013) 217 Cal.App.4th 126, 133; see In re Hadley B. (2007)
148 Cal.App.4th 1041, 1050.) Thus, “[w]hile a given quantum of
evidence at a particular point in time may not support
jurisdiction, those same facts considered together with new
evidence may compel the court’s intervention.” (In re Hadley B.,
at p. 1050.) The Department’s initial assessment of a single
incident did not preclude the juvenile court from exercising
jurisdiction based on that incident in light of additional
circumstances.
Tyler also argues the court erred by finding jurisdiction
based on an allegation that was not alleged in the petition,
specifically, that she left her children alone while waiting for the
babysitter to arrive. Tyler accurately points out that count b-3
alleged jurisdiction based on Tyler’s failure to supervise the
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children, “resulting in the children being found w[a]ndering
around [the] apartment complex,” not specifically leaving her
three young children alone at home. But Tyler did not object on
this ground at the jurisdiction hearing, thus forfeiting the
argument on appeal. (See In re David H. (2008) 165 Cal.App.4th
1626, 1640 [had the mother raised her objection to the sufficiency
of the petition at the jurisdiction hearing, the court could have
allowed the child protective agency to amend the petition to
conform to the proof offered at the hearing]; In re Wilford J.
(2005) 131 Cal.App.4th 742, 754 [“when a parent had the
opportunity to present [a defect in notice] to the juvenile court
and failed to do so, appellate courts routinely refuse to exercise
their limited discretion to consider the matter on appeal”]; see
also In re A.A. (2012) 203 Cal.App.4th 597, 606 [by failing to
object at the disposition hearing, mother forfeited argument that
the juvenile court violated her constitutional rights by failing to
consider placing her children with her].)
And while the forfeiture rule does not apply “if ‘due process
forbids it’” (In re T.G. (2015) 242 Cal.App.4th 976, 985; see In re
A.A. (2016) 243 Cal.App.4th 1220, 1238), the juvenile court did
not violate Tyler’s rights to due process by sustaining count b-3
based in part on Tyler’s decision to leave her children home alone
until the babysitter arrived. A “‘parent whose child may be found
subject to the dependency jurisdiction of the court enjoys a due
process right to be informed of the nature of the hearing, as well
as the allegations upon which the deprivation of custody is
predicated, in order that he or she may make an informed
decision whether to appear and contest the allegations.’
[Citation.] ‘Notice of the specific facts upon which the petition is
based is necessary to enable the parties to properly meet the
22
charges.’” (In re I.S. (2021) 67 Cal.App.5th 918, 927; see In re
Wilford J., supra, 131 Cal.App.4th at p. 751.) But the juvenile
court violates a parent’s due process right only when the court’s
jurisdiction findings are based on facts or a legal theory “not at
issue in the original petition.” (In re G.B. (2018) 28 Cal.App.5th
475, 478; see ibid. [juvenile court “erred in establishing
jurisdiction based on a factual and legal theory not raised in the
original petition”]; see also In re I.S., at p. 927 [juvenile court
may amend a petition to conform to proof on its own motion
without violating the due process rights of parents so long as
amendments are not material and do not mislead a party to his
or her prejudice]; In re Jessica C. (2001) 93 Cal.App.4th 1027,
1041-1042 [amendments to conform a dependency petition to
proof do not violate due process where the amendments
incorporate the same “basic allegation” as the original
allegation].)
There was no material difference between (1) the allegation
Tyler’s failure to adequately supervise her children resulted in
them wandering around the apartment complex without
supervision, which created a risk of serious physical harm, and
(2) the allegation Tyler’s failure to adequately supervise her
children resulted in them being left alone in the apartment,
which created a risk of serious physical harm. While the
intervening acts of the late babysitter may have contributed to
Andrew and Jonathon leaving the apartment, Andrew just as
easily could have unlocked the door (as Tyler knew he was
capable of doing) and left the apartment before the babysitter
arrived. The babysitter’s subsequent arrival did not negate the
risk to the children Tyler created by leaving them alone. (See
In re K.B., supra, 59 Cal.App.5th at p. 602 [“Children are
23
immature, inquisitive, clever about escaping, and inexperienced
with life’s hazards.”].) The juvenile court did not violate Tyler’s
due process right to notice of the facts on which the petition was
based because “the gravamen of the dependency petition
remained the same” (In re I.S., supra, 67 Cal.App.5th at p. 928)
as the proof offered at the jurisdiction hearing.
Finally, Tyler argues there was no substantial evidence
this “isolated and unfortunate” incident was likely to recur
because she asked the daycare to remove her children from
Reina’s class, there was no prior history of this type of
occurrence, and Tyler was not charged with any crime as a result
of the incident. But the juvenile court held Tyler accountable for
her conduct, not Reina’s, and the district attorney’s failure to
charge Tyler with a crime does not mean the incident cannot
support a finding under section 300, subdivision (b)(1). (See In re
Sylvia R. (1997) 55 Cal.App.4th 559, 563 [“failure to convict a
parent of spousal abuse in a criminal proceeding . . . does not
establish that the parent did not commit spousal abuse for
purposes of a proceeding . . . in dependency cases”].)
Moreover, there was considerable additional evidence from
which the juvenile court reasonably could have concluded Tyler’s
inadequate supervision created a current risk of future physical
harm. For example, there was the incident where Ethan burned
his hand when left unsupervised, 17 reports of injuries the
children sustained not at the daycare center in just over four
months, reports the boys were unclean or did not have
appropriate clothing, and the incident where Tyler went to a
concert and left Ethan overnight with Alex’s wife in violation of a
family law order. And although the juvenile court did not
explicitly find Tyler was not credible, the court reasonably could
24
have concluded Tyler would not be truthful about any future
concerns based on her inconsistent versions of, and lack of
cooperation following, the curling iron incident, the rock-throwing
incident, and the incident in early March 2020 where Tyler failed
to return Ethan after a visit. Each of these incidents, standing
alone, may not have been sufficient to show a substantial risk the
children would suffer serious physical harm as a result of Tyler’s
failure or inability to adequately supervise or protect them. But
considered together, they demonstrated the ongoing risk of
serious physical harm to the children under Tyler’s supervision.10
C. Tyler Has Not Shown the Juvenile Court Abused Its
Discretion in Terminating Jurisdiction and Issuing
the Custody Orders
Tyler states she “raises no substantive issues related to the
orders issuing the exit orders and terminating jurisdiction.” She
asks only that we reverse the custody orders “if this Court
agrees” the juvenile court’s jurisdiction findings and removal
order at disposition were not supported by substantial evidence.
We do not agree (that the findings were not supported). Because
we conclude substantial evidence supported the juvenile court’s
jurisdiction findings, and because her appeal from the disposition
order is moot, Tyler has failed to show the juvenile court abused
10 Tyler argues there was no risk of future harm to the
children at the time of the jurisdiction hearing because she had
“set barriers around the doors, by the doors, and bathrooms” and
“had alarms on her front door . . . where the minors couldn’t go in
and out.” These efforts (evidence of which Tyler presented at the
disposition hearing, not at or prior to the jurisdiction hearing),
while commendable, did not prevent Tyler from leaving her
children unattended or with inappropriate adults.
25
its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902;
Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in
terminating jurisdiction and issuing the custody orders.
DISPOSITION
The appeal from the disposition orders is dismissed. The
jurisdiction findings, custody orders, and orders terminating
jurisdiction are affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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