In re B.A. CA2/5 ( 2021 )

Filed 1/29/21 In re B.A. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
In re B.A. et al., Persons B304196
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
19CCJP06766A–B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
V.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel Zeke Zeidler, Judge. Affirmed as
modified.
Judy Weissberg-Ortiz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, Aileen Wong, Senior Deputy County Counsel,
for Plaintiff and Respondent.
I. INTRODUCTION
V.A. (mother) appeals from a dispositional order of the
juvenile court that exercised dependency jurisdiction over her
children, B.A. and E.A., pursuant to Welfare and Institutions
Code1 section 300, subdivisions (b)(1) and (c). Mother argues that
one of the grounds for dependency jurisdiction, emotional abuse,
was not supported by substantial evidence. Mother further
argues the juvenile court abused its discretion by ordering a
mental health assessment as part of her case plan.
We find the juvenile court erred by exercising jurisdiction
over one of the children, E.A., pursuant to section 300,
subdivision (c), as that basis for jurisdiction was never alleged in
the dependency petition. We will modify the juvenile court’s
jurisdictional finding as to that child. We otherwise affirm.
1 Further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
II. BACKGROUND
A. The Dependency Petition
On October 18, 2019, the Department filed a dependency
petition pursuant to section 300, subdivisions (b)(1) and (c) that
alleged, as amended and as sustained, the following counts:
“b-1 . . .
“The children[’s] mother . . . is a current user of
methamphetamine and marijuana which renders [ ] mother
incapable of providing regular care of the children. On prior
occasions in 2019, [ ] mother was under the influence of
marijuana while the children were in [ ] mother’s care and
supervision. [M]other has a criminal history of V[ehicle ]C[ode]-
Driving Under the Influence [of a] Drug. [M]other’s substance
abuse endangers the children’s physical health and safety and
places the children at risk of serious physical harm, damage, and
danger.
“b-2 [and c-1]
“The child [B.A.’s] mother . . . emotionally abused the child
by exposing [her] to the parents’ custody dispute. [M]other made
false allegations of sexual abuse against [ ] father. On
09/05/2019, [ ] mother requested the child be subjected to an
interview with professionals and requested a medical exam
regarding the allegations made by mother. The child [B.A.] is
experiencing emotional distress including suicidal ideation and
cognitive dissonance due to [ ] mother’s emotional abuse of the
child. Such emotional abuse of the child by [ ] mother places the
child at substantial risk of suffering serious harm and/or
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emotional damage as evidenced by severe anxiety, depression,
withdrawal, and aggressive behavior.2
“b-3 . . .
“The children[’s] father . . . has a history of substance use
and is a current user of alcohol while taking psychotropic
medications. On prior occasions in 2019, [ ] father was under the
influence of alcohol while the children were in [ ] father’s care
and supervision. Mother . . . knew of [ ] father’s substance abuse
and failed to protect the children. [F]ather’s substance use and
[ ] mother’s failure to protect endangers the children’s physical
health and safety and places the children at risk of serious
physical harm.”3
B. Detention Report and Detention Hearing
On or about September 4, 2019, the Department received a
referral for general neglect by mother. The reporting party
stated that mother and father were engaged in divorce
proceedings and father had primary custody of the children, 12-
year-old B.A. and 10-year-old E.A., pursuant to a family law
order. The reporting party was notified by a student that on
August 30, 2019, B.A. had sent text messages stating that she
wanted to kill herself and mother was aware of her suicidal
2 For count c-1, the Department alleged B.A. was at
“substantial risk of suffering serious emotional damage.”
3 Father entered a no contest plea and does not appeal.
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thoughts.4 B.A. was absent from school on September 3 and 4,
2019. The reporting party contacted mother, who denied that
B.A. had thoughts of killing herself, but added, “‘it’s tough love; I
talked her out of it.’” The reporting party offered mother services
and referrals for assessment, but mother declined.
On September 5, 2019, two social workers spoke with
mother. Mother stated she only became aware of B.A.’s suicidal
ideation earlier that day. Mother declined to comment about
whether she had any mental health issues. During her
conversation with the social workers, mother spoke rapidly, failed
to answer questions directly, and fluctuated in her mood,
becoming “very angry, emotional, and agitated.”
The social workers interviewed B.A., who reported that on
August 30, 2019, mother accused father of inappropriately
touching the children. B.A. denied such abuse. B.A. also denied
wanting to harm herself but admitted to having told mother,
when B.A. was in the fifth grade, that she had thoughts of killing
herself.
The social workers interviewed E.A. at her school. E.A.
explained that B.A. was “‘emo,’” “pretty dark,” and listened to
music with lyrics about wanting to die. E.A. denied any sexual
abuse.
On September 6, 2019, a social worker received a call from
B.A.’s school. The reporting party, a counseling intern, had
4 B.A.’s text messages to the other student included: “[m]y
mom said I might not make it to 15 . . .”; “it’s cuz I might kill
myself”; “[s]he knows that I want to kill my self [sic]”; “I don’t
need help and what if I didn’t make it to 15 what u do?”; “I feel
like it’s going to happen”; and “If I really need to talk to you I’ll
call u or face time idk . . . but rn I’m ok not that much but I’m ok
and look I’m still alive . . . .”
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received a phone call from mother. Mother stated that she
suspected father was sexually abusing the children and took the
children to the emergency room so that they could be
administered “rape kits.” The children were interviewed by law
enforcement officers and denied abuse. The officers did not
suspect sexual abuse. During the telephone call, mother seemed
“‘out of it.’” She “sp[oke] fast and all over the place.”
A social worker spoke with a police officer who responded to
the hospital. Mother told the officer that she believed father had
sexually abused the children because one of the children drew a
picture with two stick figures and one stick figure had an arm
that did not look like an arm. Mother threw away the drawing
and therefore could not show it to the officer. Both children
denied being abused. The officer advised mother that because
the children denied having been raped, rape kits would not be
administered to them. The officer directed mother to return the
children to father.
On September 11, 2019, a social worker spoke with
paternal grandmother, who reported that father had primary
custody of the children. In paternal grandmother’s view, mother
emotionally abused the children by accusing father of sexually
abusing them, instructing B.A. to sleep with a bat under her
pillow, and threatening to take the children away from father’s
home.
During a child family therapy meeting, father expressed
concerns about mother. According to father, mother discussed
custody-related issues with the children, was paranoid, and used
drugs.
At an October 21, 2019, detention hearing, the juvenile
court found a prima facie case that the children were minors
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described in section 300, subdivision (b)(1), and that B.A. was
also a minor described in subdivision (c). The court ordered the
children detained from mother and released to father’s sole
custody.
C. Jurisdictional/Dispositional Report
B.A. told a dependency investigator that on
August 30, 2019, mother and paternal grandmother argued when
mother accused father of inappropriately touching the children.
Paternal grandmother asked B.A. three times whether father had
inappropriately touched her. B.A. denied abuse each time. The
questioning caused B.A. to cry. After the argument with paternal
grandmother, mother told the children, “‘[w]e’re never coming
back here[,]’” referring to father’s home.
B.A. also told the investigator that on September 5, 2019,
mother took the children to the hospital because she did not
believe B.A.’s statement that she had not been raped. The trip to
the hospital and the interview by the police upset B.A., who, upon
returning home from the hospital, went into her room and cried,
reporting, “‘it was a long day for me’ and . . . a ‘lot of people were
talking to us.’” B.A. initially denied having thoughts of harming
herself but then admitted that she “‘[m]aybe’” did have thoughts
about ending her life. She further explained that she most
recently felt suicidal on September 5, 2019, while at the hospital,
because: “‘There was too much going on. I didn’t want to be
there. I was frustrated, kind of depressed.’”
Father told the dependency investigator that he noticed
behavioral changes in mother that led him to suspect she was
using drugs, such as when she accused father of sleeping with
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mother’s cousin and molesting the children. Father did not see
mother often. He wanted primary custody of the children
because mother was “‘unpredictable, moving from place to place,
emotionally unstable.’” As reported by father, the family law
judge ordered the children placed in father’s primary custody
because the judge “‘didn’t think [mother] was mentally fit’” based
on mother’s conduct in court, which included “being ‘real fidgety,
and real emotional.’” Father reported that after their separation,
mother told him she experienced depression and heard voices.
D. Interim Review Report
On November 15, 2019, mother appeared for a hearing and
denied the allegations in the dependency petition. The
dependency investigator interviewed mother following the
hearing. Mother said that she grew up in a dysfunctional and
violent household and both of her parents abused drugs. She was
distraught during the interview and did not want to talk about
the issues in the case. Mother reported that she experienced
depression from around 2017 to 2018, but had not sought medical
treatment. She declined to further discuss the details of her
depression.
Mother believed B.A.’s statements of suicidal ideation were
“taken ‘out of context.’” She also believed that her allegations of
sexual abuse were a family matter and not relevant for the
court’s consideration.
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E. Jurisdictional/Dispositional Hearing
At the January 8, 2020, jurisdictional and dispositional
hearing, the juvenile court sustained the allegations, finding
“[t]he children are persons described by . . . section[] 300[,
subdivisions] (b) and (c).” The court then issued minute orders
that stated each child was “a person as described by [section] 300
subdivision(s): (b), (c).”
The juvenile court found by clear and convincing evidence
that the children’s physical health and safety would be at
substantial risk if they remained in mother’s home and issued a
dispositional order removing the children from mother’s home
and placing them in father’s home. The court ordered that
mother, as part of her case plan, participate in a mental health
assessment, among other requirements.
III. DISCUSSION
A. Justiciability
Mother appeals the juvenile court’s sustaining of counts b-2
and c-1. The Department has filed a motion to dismiss mother’s
appeal, arguing that because mother does not appeal the court’s
jurisdictional findings as to counts b-1 and b-3, her appeal is not
justiciable. The court’s finding that both children are subject to
jurisdiction based upon mother’s emotional abuse could adversely
affect mother’s future custody and visitation rights. (See Fam.
Code, §§ 3011, 3020, 3040 [factor to consider when determining
best interest of child for custody award includes child’s health,
safety, and welfare]; see also id., § 3027.5 [knowingly false
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accusation of sexual abuse by parent may result in that parent’s
loss of custody or visitation rights].) We therefore deny the
Department’s motion and exercise our discretion to consider
mother’s challenge on appeal. (In re Drake M. (2012) 211
Cal.App.4th 754, 763 [generally, an appellate court will exercise
its discretion to reach the merits of a challenge to any jurisdiction
finding if that finding “‘could have other consequences for [the
appellant], beyond jurisdiction’”].)
B. Finding that E.A. is Minor as Described in Section 300,
Subdivision (c)
Mother contends the juvenile court erred by finding E.A.
was subject to jurisdiction under section 300, subdivision (c). The
juvenile court sustained the amended allegations in the
dependency petition and found that both children were minors as
described in section 300, subdivisions (b)(1) and (c). At a
contested jurisdictional hearing, a juvenile court is tasked with
determining whether the allegations of the dependency petition
have been proven by a preponderance of the evidence. (Cal.
Rules of Court, rule 5.684(a); § 355.) Moreover, “[n]otice of the
allegations upon which the deprivation of custody is predicated is
fundamental to due process. [Citations.] Accordingly, a parent
must be given notice of the specific factual allegations against
him or her with sufficient particularity to permit him or her to
properly meet the charge.” (In re J.T. (1974) 40 Cal.App.3d 633,
639; accord, In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035–
1036.)
Here, the amended petition’s allegations in counts b-2 and
c-1 pertained to B.A. only. Further, neither the Department nor
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the juvenile court amended the petition to allege that E.A. was
also subject to the court’s jurisdiction pursuant to section 300,
subdivision (c). (See In re G.B. (2018) 28 Cal.App.5th 475, 485.)
Thus, the court erred in finding that section 300, subdivision (c)
supported the court’s exercise of jurisdiction over E.A., and we
will modify the jurisdictional findings accordingly.5 (See Code
Civ. Proc., § 43.)
C. Substantial Evidence Supports Counts B-2 and C-1
Mother additionally challenges the juvenile court’s
jurisdictional finding that she emotionally abused B.A. as alleged
in counts b-2 and c-1. “‘In reviewing the jurisdictional findings
and the disposition, we look to see if substantial evidence,
contradicted or uncontradicted, supports them. [Citation.] 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.’” (In re
R.T. (2017) 3 Cal.5th 622, 633.)
Section 300, subdivision (c) “‘sanctions intervention by the
dependency system in two situations: (1) when parental action or
inaction causes the emotional harm, i.e., when parental fault can
be shown; and (2) when the child is suffering serious emotional
damage due to no parental fault or neglect, but the parent or
5 E.A. remains subject to the juvenile court’s jurisdiction
under section 300, subdivision (b)(1) pursuant to counts b-1 and
b-3. Mother does not challenge the court’s sustaining of these
counts on appeal.
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parents are unable themselves to provide adequate mental health
treatment. [¶] In a situation involving parental “fault,” the
petitioner must prove three things: (1) the offending parental
conduct; (2) causation; and (3) serious emotional harm or the risk
thereof, as evidenced by severe anxiety, depression, withdrawal
or untoward aggressive behavior.’” (In re Roxanne B. (2015) 234
Cal.App.4th 916, 921; In re Alexander K. (1993) 14 Cal.App.4th
549, 557.)
Section 300, subdivision (b)(1) provides for juvenile court
jurisdiction where “[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 . . . .”
We find substantial evidence supports the juvenile court’s
sustaining of counts b-2 and c-1, which, as we discussed above,
alleged grounds for exercising jurisdiction over B.A. only. The
record supports a finding that mother engaged in offending
conduct: She discussed custody-related issues in front of the
children, threatened to take the children from father’s custody,
and on August 30, 2019, told the children that they would never
return to father’s home. Further, and despite the children’s
denial of abuse, mother accused father of sexually abusing the
children, repeated the allegation to paternal grandmother, and
took the children to a hospital for the administration of rape kits.
The record also supports a finding that mother’s conduct
caused B.A. to be at risk of serious emotional and physical harm.
B.A. reported being upset on August 30, 2019, when mother and
paternal grandmother argued about mother’s allegations of
sexual abuse. She also reported feeling depressed and suicidal on
September 5, 2019, when mother took the children to the
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hospital. Finally, B.A.’s text messages supported an inference
that she had thoughts of killing herself. (See In re Roxanne B.,
supra, 234 Cal.App.4th at p. 921 [finding “emotional damage was
also evidenced in [the child’s] suicidal ideations”]; In re I.J. (2013)
56 Cal.4th 766, 773 [“‘The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the
steps necessary to protect the child’”].)
D. Dispositional Order—Mental Health Assessment
Mother also contends the juvenile court erred by ordering
that she undergo a mental health assessment as part of her case
plan. “The juvenile court has ‘wide latitude’ in formulating
reasonable disposition orders for the care, custody, support, and
well[-]being of juvenile dependents.” (In re K.T. (2020) 49
Cal.App.5th 20, 24; In re Jasmin C. (2003) 106 Cal.App.4th 177,
180.) “If a child is adjudged a dependent child of the court on the
ground that the child is a person described by [s]ection 300, the
court may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
child . . . .” (§ 362, subd. (a).) Section 362, subdivision (d)
provides: “The juvenile court may direct any reasonable orders to
the parents or guardians of the child who is the subject of any
proceedings . . . as the court deems necessary and proper to carry
out this section . . . .” “The court’s 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,
permits the court to formulate disposition orders to address
parental deficiencies when necessary to protect and promote the
child’s welfare, even when that parental conduct did not give rise
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to the dependency proceedings.” (In re K.T., supra, 49
Cal.App.5th at p. 25; In re Drake M., supra, 211 Cal.App.4th at
p. 770.)
We find no abuse of discretion. Mother admitted to
suffering from depression in 2017 and 2018. Father confirmed
mother’s statements about her depression, and further reported
that mother said she heard voices. Mother did not see a doctor or
receive any treatment for these issues. The juvenile court could
have reasonably concluded that ordering a mental health
assessment for mother would serve “the care, supervision,
custody, conduct, maintenance, and support of the” children.
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IV. DISPOSITION
The motion to dismiss the appeal is denied. The
jurisdictional findings are modified to reflect that E.A. is not a
person described under section 300, subdivision (c). As so
modified, the jurisdictional findings and dispositional order are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
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