Filed 7/28/22 In re C.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Lisa Brackelmanns, Judge Pro Tempore. Affirmed.

Michelle E. Butler, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.

__________________________________

In April 2021, the juvenile court sustained a petition brought by the Los Angeles County Department of Children and Family Services (DCFS), alleging that appellant mother T.H. had abused her 14-year-old daughter, C.C. The court sustained allegations that Mother had choked and slapped C.C., was unable to care for C.C. due to C.C.’s mental health issues, and had emotionally abused C.C. by calling her names such as “‘bitch,’” “‘whore,’” and “‘slut,’” and telling her she should have finished herself off after she had cut her wrists. After finding jurisdiction under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (c) (section 300(a), section 300(b)(1), and section 300(c)), the court issued a custody order granting sole physical custody of C.C. to her non-offending father and terminated jurisdiction.

On appeal, Mother argues that substantial evidence did not support a finding that C.C. was still at risk at the time of the adjudication hearing. We disagree and therefore affirm.

3911719343734. OF RELEVANT FACTS
               1. Background and Prior Incidents

Appellant T.H. is the mother of C.C. (born October 2006), as well as Asia and Christian, both adults and C.C.’s half-siblings. Non-party R.C. is C.C.’s father. In 2006, DCFS received a report that all three children were at risk because Mother had thrown hot milk in Christian’s face, scarring his right eye and cheek. The reporting party also stated she had observed Mother call Christian “stupid” and pull on his arms. The referral was closed as inconclusive as to Christian, and unfounded as to Asia and C.C.

1. 2. DCFS Investigates a Referral

In February 2021, DCFS received a custody alert that Mother had been arrested for violation of Penal Code section 273, subdivision (a) (willful cruelty to a child). The reporting party stated that Mother had pressed her forearm into C.C.’s throat and later choked her with both hands. C.C. also reported that three weeks earlier, Mother had slapped her in the face multiple times. C.C. additionally told the reporting party that for years, Mother had been calling her “bitch,” “whore,” and “slut,” causing her emotional distress. She also explained that she once attempted to kill herself by cutting her wrists; Mother, referring to the incident later, told her that “she should have cut deeper, that she should have finished herself off[,] and that she should kill herself.” A children’s social worker (CSW) learned from a police officer that Mother had ripped a chain from C.C.’s neck; C.C. had scratches on her neck.

The CSW spoke with Mother, who “strongly denied any type of abuse towards her daughter,” admitting only that she had pressed her forearm into C.C.’s chest to protect herself after C.C. intentionally bumped into her. She denied ever telling C.C. she should have cut deeper or making similar comments, claiming it was C.C.’s godfather who had said those things. Mother also stated C.C. refused Mother’s attempts to get her help.

The CSW then spoke with C.C., who confirmed Mother had pushed her forearm into C.C.’s neck, ripped a chain off her neck, and choked her. C.C. recounted another incident several weeks earlier in which Mother had slapped her three times while calling her “‘stupid’” and “‘bitch.’” C.C. reported that Mother often called her “‘bitch,’” “‘hoe,’” “‘rat bitch,’” and “‘thot.’”[1] According to the police report of the incident, C.C. informed an officer that when she asked Mother not to call her those names, Mother responded, “‘That’s how you’re supposed to discipline a child.’”[2]

The CSW spoke with Father, who said C.C. had never told him Mother abused her but confirmed that Mother was verbally abusive toward her older daughter. DCFS detained C.C. from Mother and released her to Father. Father commented that this was the first time C.C. had lived with him, because Mother only permitted C.C. to visit for a few hours, and never overnight.

1. 3. DCFS Files a Petition and Continues to Investigate

Three days later, DCFS filed a petition on behalf of C.C. under sections 300(a), 300(b)(1), and 300(c). Counts a-1 and b-1 identically alleged that Mother physically abused C.C. by pinning her to the wall, ripping a chain off her neck, and choking her, causing her to bruise. The counts also alleged that Mother had previously slapped C.C. repeatedly and had been arrested for willful cruelty to a child. Finally, the counts alleged Father knew of the abuse and failed to protect C.C. Count b-2 alleged that Mother had limited ability to care for C.C. due to C.C.’s mental health issues, including suicidal ideations and self-inflicted cuts, and that Mother had failed to obtain medical treatment for C.C. Count c-1 alleged that Mother “emotionally abused the child. The mother used demeaning and derogatory words towards the child and physically abused the child. The child exhibits suicidal ideations including self-inflicted cuts on the child’s wrists due to the emotional abuse by the mother. Such emotional abuse of the child on the part of the mother places the child at substantial risk of suffering serious emotional damage . . . .” The petition did not contain a count b-3.

At the detention hearing, Mother did not oppose DCFS’s request that C.C. be detained from her and requested “an assessment to terminate jurisdiction with a J[uvenile] C[ustody] O[rder] for Father.” The court found a prima facie case to detain C.C. and released her to Father.

A dependency investigator (DI) interviewed Mother, Father, and C.C. about the allegations. Mother gave a somewhat different account of how the altercation occurred, but again denied she had abused C.C., insisting she had acted out of self-defense. Mother denied having told C.C. to “finish[] herself off,” claiming it was C.C.’s godfather who had done so. She claimed that she had “called for counseling, and we had an appointment,” but C.C. refused to go. However, Mother could not provide the name or phone number of the agency she allegedly called, and when asked to confirm that she had scheduled an in-person appointment (despite the fact that most mental health services were offered virtually in 2020 due to the pandemic), Mother stated, “‘yeah, I guess so, but we ended up not going anyway.’” Mother again denied using “‘mean or derogatory words’” towards C.C. Mother elaborated that she wanted C.C. to stay with Father because she was afraid of C.C. and what she might say, stating that C.C. had “‘lied on [her] this time, and I have too much to lose.’”[3] Mother was enrolled in services, taking parenting and anger management courses, and was on a waiting list for individual counseling.

Father knew only that Mother was “‘super[] verbally abusive’” but had never seen her physically abuse her children. However, Father reported that Mother had once hit him in the head with a cordless phone hard enough that the phone broke into pieces. Father claimed Mother had told him she had bipolar disorder.

C.C.’s account of events remained consistent. She additionally stated that Mother used to throw bottles at C.C.’s sister. When asked whether she was afraid of Mother, C.C. responded that she was not, but thought Mother would try to “‘hit me or do something.’” C.C. informed the DI that Father had no knowledge of any abuse, and that Mother had severely limited C.C.’s contact with him. She repeated that Mother had mocked her for cutting herself, saying, “‘“are you Gothic or weird or something? You should have kept going.”’” She explained that while Mother “‘played a part in [the self-cutting], . . . she wasn’t the focus of why’” C.C. did it. C.C. reported that when Mother learned she had cut herself, Mother “‘called places for mental health to scare’” C.C. C.C. stated she heard Mother make an appointment for C.C. to go to a mental facility, and later Mother told her she had made an appointment for her to “‘go into foster care.’” C.C. claimed that Mother “‘canceled the appointment, but I think maybe she just said that to scare me.’”

1. 4. Adjudication and Disposition

No one testified at the April 2021 adjudication hearing. C.C.’s counsel asked the court to strike the allegations regarding Father’s failure to protect her, sustain counts a-1 and b-1 regarding Mother’s physical abuse of C.C., dismiss count b-2 regarding Mother’s inability to care for C.C., and amend count c-1 to allege only that Mother emotionally abused C.C. by using demeaning and derogatory language and physically abusing her. As for disposition, C.C.’s counsel agreed with DCFS’s recommendation to award Father sole physical custody with both parents retaining joint legal custody, and terminate jurisdiction. Mother’s counsel asked the court to dismiss the petition, arguing that there was no evidence of physical or emotional abuse, and that sustaining the petition could adversely affect Mother’s employment. As for disposition, Mother’s counsel agreed that the case should be terminated with Father being granted sole physical custody, with both parents retaining joint legal custody. Father’s counsel joined all arguments made by C.C.’s counsel, emphasizing Father had no reason to know C.C. was being abused, and agreed with DCFS’s recommendation regarding disposition. DCFS’s counsel asked the court to sustain the petition as pled.

The court found that Mother’s physical and emotional abuse of C.C., as well as Mother’s failure to obtain medical treatment for her, placed C.C. at substantial risk of harm; it sustained the counts in the petition with some amendments. Specifically, the court amended counts a-1 and b-1 to strike the allegations regarding Father’s failure to protect C.C. and sustained the counts as amended. The court amended count b-2 to strike language regarding suicidal ideation and self-inflicted cuts, but otherwise sustained it. The court then stated, “[a]s to [count] b-3 [sic], I’m going to strike ‘the child exhibited suicidal ideation, including self-inflicted cuts,’ et cetera, but I am going to sustain that the mother was using demeaning, derogatory words towards the child, and physically abusing the child, which caused emotional abuse on the part of the mother -- emotional abuse of the child on the part of the mother, placing the child at substantial risk of suffering serious emotional damage. That will be sustained with that modification.”[4] The court then terminated jurisdiction with an order granting sole physical custody to Father, with joint legal custody to both parents. Mother timely appealed.[5]

1. 5. Requests for Judicial Notice

In December 2021, Mother requested we take judicial notice of a superior court case docket showing, inter alia, that Mother’s criminal case had been dismissed, and a minute order reflecting a new petition had been filed regarding C.C., concerning Father’s behavior. We granted this request.

In May 2022, Mother requested we take judicial notice of additional minute orders from the juvenile court. We deny Mother’s request because the documents she asks us to notice have no bearing on the issues before us in this appeal.

In her opening brief, Mother does not dispute that the evidence supported the court’s findings that she physically and emotionally abused C.C.[6] Instead, Mother contends C.C. was not at risk because Mother had previously sought help for her, Mother was participating in court-ordered services, and Mother was cooperating with custodial and visitation arrangements. She further contends that the court, having determined that placing C.C. with Father was necessary to alleviate the risk Mother posed to the child, was required to dismiss the petition and stay the dismissal, pending Father’s obtaining a family law order granting him sole physical custody. We disagree.

1. 1. Substantial Evidence Supported Finding C.C. Was at Risk

Under a substantial evidence review, “‘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. Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment.’” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.)

The record is replete with evidence demonstrating Mother’s physical and emotional abuse of C.C. and the risk it posed to the child’s physical and mental health. C.C. reported that Mother had pushed her, choked her, slapped her, and ripped a chain from her neck, causing injury. Additionally, Mother frequently insulted C.C., using wholly inappropriate and sexually charged language. Most egregiously, Mother used her daughter’s self-harm as a source of mockery, making light of her daughter’s behavior and causing the child emotional distress. Yet Mother neither acknowledged having engaged in any abusive conduct nor expressed regret over the impact her conduct may have had on C.C. The risk Mother’s behavior posed to C.C. was enhanced by the fact that Mother was in denial about the abuse and lacked insight into how her own behavior contributed to the child’s risk of serious physical and emotional harm. “[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision.” (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) “One cannot correct a problem one fails to acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) On this record, the court had ample basis to conclude C.C. was still at risk from Mother’s behavior and to assume jurisdiction on that basis.

The fact that Mother claimed to have sought help for C.C., that she was participating in court-ordered services, and that she was cooperating with custodial and visitation arrangements does not change the analysis. Preliminarily, the court was not required to credit Mother’s claim that she had sought help for C.C. Mother could provide neither the name nor the number of the counseling service she had called, and while C.C. overheard Mother making an appointment, Mother told her she had made an appointment to place C.C. into “‘foster care.’” More important, even crediting Mother’s representation, the court had ample basis for finding C.C. at risk. The same is true regarding Mother’s participation in court-ordered services and her cooperation with custodial and visitation arrangements. Neither fact negated the risk Mother’s behavior posed to her child.

1. 2. The Court Was Not Required to Dismiss the Petition Because C.C. Was in Father’s Custody

Mother contends the court’s termination of jurisdiction immediately after entering an order granting Father sole physical custody of C.C. demonstrates the court’s belief that the risk Mother posed would be removed by the entry of such an order. Citing In re A.G. (2013) 220 Cal.App.4th 675 (A.G.) and In re Phoenix B. (1990) 218 Cal.App.3d 787 (Phoenix B.), Mother argues that in such a situation, the court was compelled to dismiss the petition and stay the dismissal, pending Father’s obtaining a family law order granting him sole physical custody. The authorities on which she relies do not support her argument.

In A.G., DCFS filed a petition alleging that the mother’s mental health issues rendered her incapable of caring for her children. (A.G., supra, 220 Cal.App.4th at 678.) However, the evidence showed that the mother had never harmed the children, and that the father (who was divorcing the mother but still living with her and the children) cared for the children and, with only one exception, ensured they were never alone with the mother. (Id. at 677‑680, 684.) The juvenile court sustained the petition, then terminated jurisdiction with an order granting the father sole custody. (Id. at 682.) The appellate court reversed, concluding that “the juvenile court erred in sustaining a petition that alleged only that Mother is mentally ill and is unable to care for the minors where Father has always been, and is, capable of properly caring for them. At the adjudication hearing, the juvenile court should have dismissed the petition, staying the order until Father obtained from the family court an award of custody to him and monitored visitation to Mother.” (Id. at 686.)

We do not read A.G. to stand for the proposition that in every instance where placement of a child with a non‑offending parent sufficiently alleviates the risk to the child to permit termination of jurisdiction, the juvenile court must dismiss the petition, stay the dismissal, and await the non-offending parent’s obtaining an order from the family law court awarding that parent sole custody. In A.G., the evidence demonstrated the mother had never harmed the children, and the father had always been capable of protecting them. As the children were never in danger, intervention by the dependency court was unwarranted. Here, in contrast, substantial evidence supported the finding that Mother -- C.C.’s custodial parent -- physically and emotionally abused C.C. yet continued to deny such abuse. Moreover, because Mother had limited Father’s contact with C.C. to a few hours at a time, he was in no position to protect C.C. from Mother’s abuse. A.G. is thus inapposite.

Mother’s reliance on Phoenix B. is similarly unavailing. There, the appellate court held the juvenile court did not abuse its discretion in dismissing a petition filed by the department of social services (the Department), which earlier had taken custody of a child from a mother who was hospitalized after a mental breakdown. (Phoenix B., supra, 218 Cal.App.3d at 789-790.) After the court detained the child and gave the Department discretion as to her placement, the Department released her to her father and sought to dismiss the petition. (Id. at 790.) The appellate court found no abuse of discretion in the court’s dismissal, as there was no evidence the father was incapable of caring for the child. (Id. at 793.) But concluding the juvenile court did not abuse its discretion in dismissing the case was not a determination that the court was required to do so. Accordingly, Phoenix B. does not assist Mother. In short, the court did not err in sustaining the petition even though it found the risk to C.C. was mitigated by granting Father sole physical custody. (See, e.g., In re D.B. (2020) 48 Cal.App.5th 613, 619, 629 [affirming order terminating jurisdiction immediately after sustaining petition and awarding custody to non-offending parent].)[7]

The court’s orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

[1] Dictionary.com defines “thot” as “a woman considered to be sexually provocative or promiscuous; a slut or whore.” (<https://www.dictionary.com/browse/thot> [as of July 27, 2022].)

[2] When Mother was asked by an officer how she disciplined C.C., she responded “either by taking her cell phone away or ‘By fussin’ and cussin’,’ ‘Talking Mess’ to [C.C.], or telling [C.C.] to ‘Get your ass out of here’.”

[3] Mother was a school bus driver.

[4] The court’s minute order reflected that the court sustained count c-1 -- not count b-3 (which did not exist) -- under section 300(c).

[5] Mother appealed both the jurisdictional and dispositional orders, but her only argument regarding disposition is that “the court did not have sufficient evidence to sustain the petition and thus the dispositional orders should also be vacated.” Accordingly, we need not separately address Mother’s contention that the court erred in disposition.

[6] To the extent Mother suggests the court made no finding of emotional abuse under section 300(c), we reject her argument. Despite the court’s oral reference to a non-existent count b-3, the record makes clear the court was referring to count c-1. As Mother acknowledges, when making its findings, the court “seem[ed] to be referring to the text of the count listed [under] section (c).” Count c-1 was the only count brought under section 300(c), and the allegations discussed by the court mirrored the allegations in count c-1. Indeed, the court expressly referred to Mother’s “emotional abuse of the child,” placing C.C. “at substantial risk of suffering serious emotional damage.” On this record there can be little doubt that the court sustained count c-1 under section 300(c), as the minute order reflects.

[7] In her reply brief, Mother argues for the first time that substantial evidence did not support a finding of jurisdiction under section 300(c). Mother forfeited this argument by raising it in her reply brief without showing good reason for not presenting it in her opening brief. (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1478 [“‘“[P]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before”’”]; id. at 1477 [“‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant’”].)
Even were we to consider the argument on the merits, we would reject it. As set forth above, the record contains ample evidence that Mother consistently demeaned her daughter, using epithets and insults she justified as proper discipline. And Mother mocked C.C.’s self-harming behavior. There was substantial evidence of abuse placing C.C. at risk of suffering serious emotional damage.
Finally, we note that the findings that Mother physically abused C.C. would support jurisdiction regardless of the court’s findings of emotional abuse and resultant risk. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [“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”].)