Filed 10/12/18 In re D.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Reversed.

Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, Kristina M. Robb and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.

F.D. (Mother) is the mother of D.D., who was 12 years old on the date of the challenged orders. Mother challenges the court’s jurisdiction and disposition orders made on August 23, 2017, in which the court found Mother to be an offending parent and declined to place D.D. in her care. Specifically, Mother argues: (1) the jurisdictional finding that she failed to protect D.D. from Father is not supported by substantial evidence because Father had moved D.D. to another state six years prior, concealed D.D.’s whereabouts and prevented D.D. from contacting Mother for three to four years; and (2) because the court found Mother to be an offending parent, it did not make the required finding of detriment required by Welfare and Institutions Code[1] section 361.2, when considering placement with a nonoffending parent, and any such finding is not supported by substantial evidence. As discussed post, we reverse the jurisdictional finding and the dispositional order as to Mother.[2]

Facts and Procedure

In April 2017, D.D. was living in Victorville with his father (Father), stepmother, 14- and 11-year-old stepbrothers and nine-year-old stepsister.[3] Father and stepmother used a belt to administer regular beatings to all four children. On April 26, 2017, the stepmother hit the 11-year-old stepbrother approximately 25 times with a belt. The boy came downstairs angry and crying, told his siblings he was going to tell the school about the beatings, and asked if they wanted to go into foster care with him. The stepbrother made a report at his school. Social workers who interviewed the children found multiple red marks and bruising on the thighs of the 11-year-old stepbrother and the stepsister. The stepsister told social workers that she has cerebral palsy and was beaten often because she would wet herself. The children reported they would be spanked if they did not do their chores or fold their clothes correctly. Father would usually hit the children three or four times with a belt, but the stepmother would hit them five or six times, “unless she’s really mad” and then she would hit them 10 to 12 times. The 14-year-old stepbrother reported that the stepmother would sometimes also smack the kids in the head or punch them in the chest. An older daughter of the stepmother stayed with the family for two months the previous fall, and during an argument the stepmother banged her daughter’s head on the floor. The other children were afraid. The older daughter’s father sent an airplane ticket to remove the teenager from the situation, but the stepmother would not let her take any of her clothing or other things, and the teenager left with only the clothes on her back.

D.D. told the social worker that both parents hit the children with a belt, and that the stepmother hits him “upside the head, on the forehead, punches me in the chest, and pushes me.” D.D. said the stepmother does most of the disciplining in the home, but when Father does the spanking the stepmother will often tell him the spank the child some more. D.D. reported that the previous Saturday night the stepmother threw him out of the house at 8:00 or 9:00 p.m. and told him he “wasn’t wanted.” She told him to “go live at Wal-Mart with all the other homeless people.” D.D. went to sleep in the park near his school; he was scared and cold. Law enforcement brought him home the next morning. That day, the stepmother took all of D.D.’s clothes, so he had to wear the same clothes Sunday through Wednesday, causing the kids at school to make fun of him. D.D. told the social worker he wanted to return to Oregon to live with Mother. He had not seen or talked to her in about four years because “I’m not allowed to talk to her.” D.D. was not sure why.

All four children expressed the fear that Father and the stepmother would physically punish them for talking to social workers and stated they did not want to return home.

The social worker spoke with Mother on the telephone. Mother lived in Oregon. Mother stated Father got custody of D.D. when they divorced, and she had regular visits with D.D. in Oregon until Father and the stepmother “moved to California about six years ago and didn’t tell anyone where they were moving to.” Mother said she had seen D.D. only about five times in the last six years, and that “[t]hey cut everyone out of his life.”

When interviewed at the family home, the stepmother was very casual about stating “spankings are issued twice a week; there’s a lot of kids in this house and someone’s always in trouble.” The stepmother did not admit to causing the specific bruising on the thighs of the two youngest children, but did not deny spanking them. Father tried to take the blame and stated he did most of the spankings and offered to move out if that would help. The stepmother would not allow the social worker to take a change of clothing for the children when they were detained and refused to sign the paperwork. The stepmother asked what would happen if she did not want the children back.

On May 1, 2017, the San Bernardino County Children and Family Services (CFS) filed a petition under section 300 for D.D, alleging as to Father failure to protect (subdivision (b)), cruelty (subdivision (i)), and abuse of sibling (subdivision (j)). CFS did not name Mother in this petition.

At the detention hearing held on May 2, 2017, the court appointed counsel for Mother, although she was not present. County counsel stated that Mother was 33 weeks pregnant and not allowed to travel. The court found a prima facie case and ordered D.D. detained outside the home.

CFS filed a jurisdiction and disposition report on May 22, 2017, recommending the hearing be continued to allow for a possible amended petition, so the social worker could further assess Mother’s and Father’s current circumstances, and to request their criminal and child welfare histories from California and Oregon. The court acted on the CFS recommendation and continued the hearing for three weeks.

CFS filed a first addendum to the jurisdiction and disposition report on June 19, 2017, in which it recommended the court find true the allegations in the petition regarding Father, continue detaining D.D. in out of home care, and provide reunification services to both Mother and Father. D.D. stated he wanted to live with Mother in Oregon. D.D. stated he last saw Mother three years prior. He claimed Father and the stepmother did not like Mother, so they moved him to California away from Mother. D.D. stated Father and the stepmother do not allow him to speak with Mother. When he asks to speak with Mother, they tell him he cannot. Mother reported she filed for emergency custody of D.D. in Oregon in 2014 or 2015. The case was transferred to San Bernardino County. Father moved again and Mother did not refile in San Bernardino County because she did not know where D.D. and Father were. Mother stated she had two of her other children in her care and was pregnant with a third child. It appears mother lost either custody or just contact with another child after the paternal grandparents took the child to Washington state in 2010.

The social worker obtained the following information from Oregon CPS by telephone, to be supplemented with the written records at a later date. “The [Oregon] social worker described the family as being familiar with CPS due to ongoing domestic violence.” The perpetrator of the domestic violence was Mother’s longtime boyfriend N.L. In 2011, Father got an emergency custody order for D.D. because Mother kept returning to N.L. despite a “no contact” order. Mother had an open CPS case with her other children from 2012 to 2013, in which the court found true an allegation of domestic violence. Mother did not abide by a no contact order regarding N.L. The case was dismissed in 2013. Mother was required to complete domestic violence education and parenting education. CPS received three additional referrals after the case closed, but a new case was not opened. In 2016, another case was reportedly closed with no disposition—Mother allegedly failed to protect her children because they were beating up each other. The report of the conversation with Oregon CPS noted that “[t]he children were placed in foster care,” but provided no other explanation. At the time of the current case in San Bernardino County, Mother did not have an open case in Oregon. As discussed post in the portion of this opinion addressing Mother’s arguments for reversing the court’s finding of detriment in its dispositional orders, the entirety of the evidence in the record about Mother’s CPS history is based on this single telephone conversation between the San Bernardino County social worker and the Oregon social worker. The San Bernardino County social worker’s account of this conversation is key to the resolution of the disposition portion of this appeal. The account takes up a long paragraph on page 5 of the first addendum to the jurisdiction and disposition report. The promised written records of Mother’s CPS history are not part of this record and may never have been sent.

A police report dated April 22, 2017, indicates D.D. ran away from home and slept in the park after he argued with the stepmother about D.D. shoplifting at Walmart.

The court continued the hearing to June 20, 2017, so CFS could obtain the promised records from Oregon CPS.

On July 24, 2017, CFS filed an amended section 300 juvenile dependency petition. The petition now alleged failure to protect as to Mother, alleging she knew or reasonably should have known that Father was physically abusing D.D. but failed to protect him. The petition alleged as to Father, for the first time, serious physical harm (subdivision (a)) in that Father physically abused D.D., including punching him in the chest so hard the child’s body moved the couch. The petition also alleged, as before, under failure to protect (section 300, subdivision (b)) that Father knew or reasonably should have known that the stepmother was physically abusing D.D. but failed to protect him.

To accompany the amended petition, CFS filed a first amended detention report. CFS recommended D.D. be detained from both Mother and Father, both parents receive supervised visits with D.D. at D.D.’s discretion, and both parents receive reunification services. The written records from Oregon CPS had not yet been received.

The jurisdiction and disposition hearing was finally held on August 23, 2017. Mother was supposed to be available by telephone, but the court clerk could not reach her. Mother’s counsel argued the failure to protect allegation regarding Mother should not be found true because Mother resides out of state, had no way of finding out where Father and D.D. were, and D.D. told the social worker he was not allowed to talk to Mother, and therefore it was not true that Mother reasonably should have known Father was physically abusing D.D. County counsel argued that Mother had been concerned enough about D.D. to go to family law court to attempt to regain custody and that “Mom has an ongoing duty to know where her child is or make attempts to know where her child is” even after Father moved out of state. Minor’s counsel agreed that Mother had a duty to take “action to find out what was going on” with D.D. The court found true each of the allegations, including the failure to protect allegation as to Mother.

As to disposition, Mother’s counsel asked that D.D. be placed with Mother on family maintenance, and argued that an ICPC was not necessary for Mother because she was an out-of-state parent, not an out-of-state relative. County counsel argued that Mother may fail to protect D.D., based on Mother’s previous failure to protect D.D., a concern that Mother’s abusive boyfriend may have returned to her home, and because Mother had not yet Live Scanned and CFS had not yet assessed Mother’s home. County counsel asked for an ICPC for Mother and paternal relatives in Oregon, and for authority for unsupervised overnight visits and an extended visit pending the ICPC approval process. Minor’s counsel agreed with County Counsel, emphasizing the need to assess Mother’s home and investigate the presence of Mother’s boyfriend before placing D.D. with her. Mother’s counsel argued further that, although Mother had issues in the past, “there’s nothing to indicate that those are current issues today. . . those cases were closed. And she still has her kids.” The court made its dispositional ruling: it granted reunification services to both parents, found placement with Mother “detrimental to the safety, protection, or physical and emotional well-being of [D.D.],” but gave CFS authority to authorize unsupervised overnight visits and an extended visit once Mother’s home was cleared and on the condition that Mother’s boyfriend was not to be present and have no contact with D.D. The court authorized CFS to conduct an ICPC for Mother and for maternal relatives in Oregon.

This appeal followed.

Discussion

1. Jurisdiction Finding as to Mother

Mother argues substantial evidence does not support the finding that she failed to protect D.D. under section 300, subdivision (b). Specifically, Mother contends she could not reasonably have known Father was physically abusing D.D. and had no ability to prevent the abuse from afar because Father: (1) moved D.D. to California from Oregon six years prior; (2) later moved D.D. within California but did not tell Mother where; and (3) prevented D.D. from contacting Mother for the three to four years prior to the dependency.

1. Mother’s Challenge is Justiciable

CFS first counters that Mother’s challenge to the jurisdictional finding regarding herself is not justiciable because, even were Mother to succeed in this challenge, the jurisdictional finding regarding Father would remain, and D.D. would still be a dependent of the juvenile court.

As a general rule, “ ‘[w]hen 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.’ [Citation.]” (In re I.J. (2013) 56 Cal.4th 766, 773.)

“A jurisdictional finding involving the conduct of a particular parent is not necessary for the court to enter orders binding on that parent, once dependency jurisdiction has been established. [Citation.] As a result, it is commonly said that a jurisdictional finding involving one parent is ‘ “good against both. More accurately, the minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent.” ’ [Citation.] For this reason, an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence. [Citations.]” (In re I.A. (2011) 201 Cal.App.4th 1484, 1492; accord, In re J.C. (2014) 233 Cal.App.4th 1, 3-4; In re Briana V. (2015) 236 Cal.App.4th 297, 308-311.)

However, there are several exceptions to these principles: “Courts may exercise their ‘discretion and reach the merits of a challenge to any jurisdictional finding when the finding (1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) “could have other consequences for [the appellant], beyond jurisdiction” [citation].’ ” (In re D.P. (2015) 237 Cal.App.4th 911, 917.)

Here, the jurisdictional order regarding Mother does form the basis for the dispositional orders that Mother also challenges.

In addition, in In re Drake M. (2012) 211 Cal.App.4th 754, the court considered the jurisdictional finding involving the father, even though the jurisdictional findings involving the mother were unquestioned. It explained: “[T]he outcome of this appeal is the difference between father’s being an ‘offending’ parent versus a ‘non-offending’ parent. Such a distinction may have far-reaching implications with respect to future dependency proceedings in this case and father’s parental rights. Thus, although dependency jurisdiction . . . will remain in place because the findings based on mother’s conduct are unchallenged, we will review father’s appeal on the merits.” (Id. at p. 763; accord, In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)

We do not understand Drake M. to mean that we must review a jurisdictional allegation every time it would make the difference between a parent being offending rather than nonoffending. Otherwise, Drake M. would be flatly contrary to the cases, cited ante, holding that an appellate court may decline to review a jurisdictional finding against one parent if a jurisdictional finding against the other parent is supported by substantial evidence. Rather, we understand Drake M. to allow review when the parent’s status as offending rather than nonoffending is reasonably likely to make a difference—or, in the words of Drake M., to “have far-reaching implications . . . .” (In re Drake M., supra, 211 Cal.App.4th at p. 763.)

For example, whether a noncustodial parent is offending or nonoffending may determine whether that parent has a right to custody under section 361.2; in such a case, a finding that the noncustodial parent is offending may be justiciable even if there are unchallenged findings that the other parent is also offending. (In re Christopher M. (2014) 228 Cal.App.4th 1310, 1317.) In fact, CFS argues in its own brief supporting the dispositional orders that Mother was not a nonoffending parent and thus section 361.2 does not apply. For this reason, the jurisdictional finding as to Mother could affect the dispositional findings and have far-reaching implications for Mother, and so we will consider Mother’s challenge to these jurisdictional findings.

2. No Substantial Evidence that Mother Reasonably Should Have Known Father was Abusing D.D.

Mother argues the record does not contain substantial evidence to support the court’s finding that she reasonably should have known that Father was physically abusing D.D. and failed to protect D.D from the abuse. We agree.

Section 300, subdivision (b)(1), provides that the juvenile court may adjudge a child a dependent of the juvenile court when the child has suffered, or there is a substantial risk that the child will suffer, serious 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, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left.” “The standard of proof required in a section 300 dependency hearing is the preponderance of evidence. [Citation.]” (In re Basilio T. (1992) 4 Cal.App.4th 155, 168 (Basilio T.).)

“The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.)

The amended petition in this case alleged that Mother failed to protect D.D. in that she “knew or reasonably should have known that the child was being physically abused by the Father . . . and failed to protect the child from physical abuse.”

The evidence presented that Mother knew or reasonably should have known that Father was physically abusing D.D. is as follows. Mother filed in Oregon for an emergency custody order in 2014 or 2015, and did not refile in San Bernardino County after Father had the case removed to San Bernardino County and then moved to another location without telling Mother where he had taken D.D. CFS admits in its responsive brief that Mother’s reason for filing for custody is “unknown,” but presumes, without explanation or evidence in the record, that Mother knew or should have known Father was abusing D.D. CFS also describes Mother’s efforts to ensure D.D.’s safety as “lackadaisical” and her attitude toward all of her children as “apathetic,” but does not explain specifically how Mother should have reasonably discovered that Father was abusing D.D., especially in view of Father’s efforts to conceal D.D’s whereabouts from Mother and to prevent D.D. from contacting Mother. Although Mother had experienced domestic violence in her relationship with Father, and Father had a history of abusing alcohol, there is no indication in this record that Father had previously abused D.D. or other children, and thus nothing sufficient to put Mother on notice that D.D. was in danger of harm in Father’s care. We note that the court in Oregon had this same information about Father, but chose to place D.D. with him in 2011. The record simply does not contain any information subsequent to that placement that would have put Mother on notice that Father was abusing D.D. We decline to place such a heavy burden on an out-of-state parent to monitor the safety of a child where: (1) the other parent is actively concealing the child; (2) the other parent forbids the child from contacting the parent; (3) the child is physically hundreds of miles away at an unknown location; and (4) the other parent has no documented history of child abuse. This record does not contain substantial evidence to support the jurisdiction order as to Mother.

2. Disposition Orders

Mother argues the trial court did not make the finding of detriment that is required when a noncustodial parent is also a nonoffending parent, and that any such finding was not supported by substantial evidence. We conclude the court did make the required finding of detriment, but the information gleaned from the single telephone call with Oregon CPS and documented on page 5 of the addendum to the jurisdiction and disposition report does not provide clear and convincing evidence of detriment.

Section 361.2 provides: “(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”

Section 361.2, subdivision (c), requires the court to make a finding of the basis for its determination either in writing or on the record.

Here, the court explicitly found “placement with a noncustodial parent detrimental to the safety, protection, or physical and emotional well-being of [D.D.],” which is exactly the finding required by section 361.2, quoted ante. This mirrors the recommended finding No. 8 in the Addendum filed June 19, 2017. Although the court focused on whether placement with Mother would pose a substantial risk to D.D., as is consistent with the standard for placing a child with an offending parent under section 361, subdivision (c)(1),[4] the court also made a finding regarding the detriment to the child of placing him with Mother, as is required by section 361.2 for a nonoffending parent.

However, a careful review shows the record does not contain substantial evidence to support a finding of detriment by clear and convincing evidence.

“The juvenile court must make the detriment finding by clear and convincing evidence. [Citations.] We review the record in the light most favorable to the court’s order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that placement would be detrimental to the child. Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262.)

Dispositional findings must be affirmed if “there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)

The court referred to the following items as evidence to support its finding of detriment. First, the court noted “a concern with respect to the reflection in the report that there were three additional referrals after closure of the case in 2016.” This is incorrect. The paragraph on page 5 of the Addendum briefly mentions the 2016 case that was closed with no disposition, and then describes in more detail Mother’s CPS case that was opened on April 3, 2012, and dismissed on June 13, 2013. Just after the description of the 2012-2013 case, the report states: “There were three (3) additional referrals after closure of the case, but no new cases were opened.” A careful reading of this paragraph indicates that it reports the three referrals took place after the 2012-2013 case, rather than more recently after the 2016 case.

Second, the court believed Oregon CPS was currently concerned Mother was allowing her abusive boyfriend, N.L., to have access to her home. The court stated that “based on the actions of [Father] getting an emergency order for custody because the mother kept returning to [N.L.], that there is current concern and that the child would be at substantial risk.” This belief by the court is bolstered by county counsel’s argument that “there’s concern that [N.L. ] is still around, that she has not completed a domestic violence education prevention and parenting education[[5]] based on the history in her prior CFS history. [¶] And so she has unaddressed issues regarding domestic violence. She has unaddressed isues concerning protection.” Minor’s counsel also pointed to the same paragraph on page 5 of the Addendum as noting “ongoing concerns that she’s allowed the perpretrator [N.L.] of domestic violence to return to the home.” The problem is that the paragraph on page 5 of the Addendum does not in fact reflect current concerns that Mother is allowing N.L. to return to her home. Rather, the paragraph states that this was a concern during the 2012-2013 case: “During that case, mother did not abide by the ‘no contact’ order as she kept returning to the perpetrator, [N.L.].” The record on appeal does not reflect a current concern by Oregon CPS regarding Mother and N.L., despite the depiction of such in the arguments put forth by county counsel and Minor’s counsel, which arguments are not evidence. In addition, the court’s reference to Father getting an order of custody based on Mother’s return to N.L. is a reference to an order issued in 2011 rather than more recently, and Oregon CPS had since returned Mother’s children to her. Thus, the record before the trial court, and before this court, does not support a conclusion that Oregon CPS was currently concerned that Mother would return to her abusive boyfriend and expose her children to domestic violence.

Third, the court’s finding of detriment could by inference also be based on the statement on page 5 of the Addendum depicting Mother and her children as “familiar with CPS due to ongoing domestic violence.” However, this general statement, standing alone as it now does, does not support a finding by clear and convincing evidence that returning D.D. to Mother’s home would be detrimental. The statement contains no details, timeline, or factual support, and so is not substantial evidence of “a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]” (In re Patrick S., supra, 218 Cal.App.4th at p. 1262.) Thus, the court’s finding of detriment must be reversed as not supported by substantial evidence in the record.

Disposition

The jurisdictional finding and dispositional order as to Mother are reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

SLOUGH

J.