Filed 9/21/18 In re J.H. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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In these consolidated appeals, father of the minors challenges the juvenile court’s jurisdictional findings, the disposition orders removing the minors from his custody, and a subsequent placement hearing order. Father contends (1) there was insufficient evidence to support jurisdiction; (2) there was insufficient evidence of current risk to support removal at disposition; (3) the juvenile court erred in combining the disposition hearing with the statutory review hearing; (4) the juvenile court erred in failing to make a specific visitation order for father at disposition; and (5) the juvenile court abused its discretion in denying his request for a continuance of the July 25, 2016 placement hearing.

Respondent San Joaquin County Health and Human Services Agency (the Agency) asks us to take judicial notice of a subsequent final judgment, and we grant the request for judicial notice. (Evid. Code, § 452, subd. (d).) The judicially noticed records establish that the minors were subsequently placed with their mother and, during the pendency of these appeals, the juvenile court dismissed dependency jurisdiction, rendering most of father’s contentions moot. Nevertheless, we deny the Agency’s request to dismiss the appeals as moot, as we will address the merits of father’s challenge to the jurisdictional findings and affirm the judgment and orders of the juvenile court.

BACKGROUND

Minors J.H. (born in 2001) and A.H. (born in 2003) spent their childhood with their mother in Chico. Father had very little contact with the minors during this time. The family had several child protective service referrals, including three referrals between 2012 and 2014 for alcohol abuse by mother and domestic violence between mother and the minors’ stepfather.

On October 31, 2014, father was granted full physical and legal custody of the minors. Sometime in late December 2014 or early January 2015, the minors moved into father’s home.

On January 5, 2015, mother reported to the police that father was not allowing the minors to call her. On January 23, 2015, the minors reported to their school counselor that father was emotionally abusive and they feared he would not let them visit their mother over the weekend. J.H. reported that father would get nose to nose with her and scream in her face. In one such episode, father held her arms so she was unable to get away from him. J.H. also reported that father yelled at A.H. and grabbed her by the arm. When J.H. attempted to intervene, father directed her to get out. J.H. said she was afraid for her younger sister during these incidents. Neither minor reported physical abuse or had any bruises. But both minors were emotional and cried when speaking to the counselor. Two additional referrals were made, with similar allegations, in February 2015.

In an interview with the social worker, J.H. said father had refused to allow them contact with their mother and tried to remove bedroom doors and throw belongings away when he became upset. When the minors got in trouble, father would get angry and make verbal threats, curse at them, yell loudly, and belittle them; he would not allow J.H. to eat until she apologized to him. He repeatedly brought up and discussed the family law case. J.H. felt safe when father was not yelling, but there were a lot of times things were “sketchy” at home and she felt “edgy.”

A.H. said father would yell when the minors said they wanted to live with mother and when he said they were not following his rules. In his anger, father had removed their belongings and bedroom doors. A.H. reported father had not hit her, but she felt unsafe living with him. She said she had nightmares and had trouble sleeping and eating.

In a second interview a few weeks later, the minors reported that things had not been good since the previous interview. A.H. told the social worker that father continually told them he “always gets his way” and “he’s in charge and has won the war.” Father had grabbed her by the arm, yelled and cursed at them, belittled them, and threatened they would not be able to see their grandparents. A.H. reported that she was having trouble sleeping and had dreams of father trying to kill her and her sister.

J.H. said the situation at home was okay when she and her sister stayed in their rooms. Since the last interview, however, father screamed at them, got face to face with her while screaming at her, blocked her with his arm and grabbed her, told them he “won the war,” and disconnected the phone to keep them from talking to their mother. J.H. reported she felt uneasy at home and, at times, felt scared and unsafe.

Father denied having yelled or cursed at the minors, denied having threatened to withhold calls or visits between the minors and their mother, and denied having ever removed the minors’ bedroom doors. But J.H. had recorded father’s yelling and played an audiotape for the social worker in which father threatened not to allow the minors to see their mother or relatives if they did not do as he said; he referenced the family court orders, removing the bedroom doors, and throwing their clothes away. The social worker noted that A.H. could be heard crying in the background while father informed them that “he can do whatever he wants to do.”

On February 17, 2015, the social worker spoke with Dr. Janelle O’Donnell, the minors’ therapist at that time. Dr. O’Donnell expressed concern regarding father’s lack of connection with the minors and his inability to demonstrate kindness, respect, or empathy when the minors expressed anxiety and fear. Dr. O’Donnell said the minors showed emotional trauma by crying, failing in school, feeling unsafe in father’s home, and by having nightmares.

On February 20, 2015, the Agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (c)[1] on behalf of the minors, alleging the minors were suffering, or were at risk of suffering, serious emotional damage as evidenced by severe anxiety, depression and withdrawal, as a result of father’s conduct. Father requested a contested hearing on jurisdiction.

After numerous continuances (many of which were requested by father), the contested jurisdiction hearing began on October 30, 2015. The juvenile court heard testimony from father, both minors, mother, maternal grandmother, the minors’ new therapist, father’s therapist, and two social workers. Father testified the minors were disrespectful after visits or phone conversations with mother. Father unplugged the phone as a tool for compliance. If the minors did not comply by the third time he asked them to do something, he would unplug the phone until they complied. But father said the minors never went more than a couple of hours without talking to their mother. Father denied taking bedroom doors off hinges and denied throwing away, or threatening to throw away, the minors’ clothing. He denied grabbing the minors by their arms. He said the time he was recorded yelling at the minors was an isolated incident. Father did not believe the minors were afraid of him.

J.H. testified father would discipline her by not allowing her to visit family. He also repeatedly told her not to be a bitch like her mother and made negative statements about her younger half brother, which made her feel very sad. On one occasion, J.H. called the police because father was threatening to prevent her from seeing her mother and was yelling at her sister. As a consequence, after the police left, father yelled in her face about obedience, grabbed her wrist and prevented her from eating. J.H. testified father yelled at her at least four days out of the week, sometimes twice a day. This would eventually end with J.H. crying. J.H. would try to avoid father as much as possible, often avoiding dinner or pretending to be asleep. J.H. had problems sleeping while she was living with father because she was too afraid to sleep; she would sometimes cry herself to sleep or go to her sister’s room. She was scared because father repeatedly threatened to send her to boarding school.

J.H. explained that, in 2013, while she was living with her mother, her interactions with father were so stressful it had resulted in depression and an instance of intentionally cutting herself. Father had been yelling a lot and preventing her from contacting her mother when she was at his house. When she cut herself, his yelling got worse and he threatened to put her in an asylum where she would never see her family again. She began refusing to visit father after that incident. She said she was also fearful of father because she had witnessed a domestic violence instance between father and her mother. The domestic violence incident involved an argument regarding J.H.’s refusal to go with father for a holiday weekend; the escalation of the argument included father accelerating a car toward mother, mother jumping on the hood of the car and tearing off the windshield wipers, and father driving with mother on the hood of the car. Mother was convicted of vandalism to father’s car, and father obtained a criminal restraining order against mother.

A.H. testified father’s swearing made her feel intimidated and scared, as did father’s yelling in her sister’s face. She did not feel safe at his house. Father threatened to send her and J.H. to boarding schools to separate them and prevent them from seeing their mother. This possibility made her sad. Father also threatened to keep her and J.H. from family and would randomly unplug the phone during conversations with mother. Father bad-mouthed mother and relatives, which made her feel hurt, and she felt guilty that she had not been nicer to her mother when she lived with her. A.H. witnessed the earlier domestic violence incident between father and her mother.

A.H. often had trouble sleeping and had bad dreams while living with father, including one in which she dreamt father killed her and J.H. She had been sleeping better and had fewer nightmares since she moved out of his house. She was less depressed.

Dr. Christina Rosetti, the minors’ therapist, testified her diagnosis for J.H. was adjustment disorder with depressed mood, and her diagnosis for A.H. was adjustment disorder with mixed anxiety and depressed mood. J.H. reported difficulty concentrating, issues related to peers, sadness, helplessness, difficulty sleeping, and tearfulness, most of which are symptoms of depression. She suffered from these symptoms on a daily basis. J.H. said she never knew what would trigger father to start yelling. J.H. felt stressed and fearful of father and cut herself in the past because of father’s treatment.

Dr. Rosetti said A.H. reported nervousness, worry, sadness, anger, difficulty concentrating, and feeling overwhelmed. Dr. Rosetti opined that A.H.’s feelings resulted from her multiple transitions and living situation changes. Dr. Rosetti testified that the minor felt guilt in not being able to defend her mother, and she felt threatened by father. The yelling caused A.H. to fear for her safety and caused anxiety that A.H. could feel in her stomach. Rosetti testified that neither minor wanted to return to the negative home environment with father.

The juvenile court took the matter under submission. On January 29, 2016, the juvenile court issued its ruling finding jurisdiction. The juvenile court began by noting that the current situation was the result of a bitter contested divorce that had been going on for 11 years. The family court order specifically prohibited the parents from making derogatory comments about each other and allowed free and unhampered contact with the minors by the other parent. The juvenile court stated it listened to six and a half hours of audiotapes that had been recorded by the minors, and noted that father went from nice to screaming in a heartbeat. The juvenile court found the minors were experiencing emotional abuse and had been diagnosed as clinically depressed, and further noted J.H.’s previous cutting incident. Considering the minors’ state at the time, along with past events, the juvenile court found by a preponderance of the evidence that the minors fell within the provisions of section 300, subdivisions (b) and (c).

Thereafter, the juvenile court adjudged the minors dependents at the February 10, 2016 disposition hearing, which was also considered the first review hearing. Father appealed in case No. C081825 from that order and the earlier jurisdictional order. Father also appealed in case No. C082581 from a subsequent placement order entered July 25, 2016.

The minors were subsequently placed with their mother and, during the pendency of these appeals, the juvenile court dismissed dependency jurisdiction.

DISCUSSION

I

“An appellate court will dismiss an appeal [as moot] when an event occurs that renders it impossible for the court to grant effective relief. [Citation.] Still, a court may exercise its inherent discretion to resolve an issue when there remain ‘material questions for the court's determination’ [citation], where a ‘pending case poses an issue of broad public interest that is likely to recur’ [citation], or where ‘there is a likelihood of recurrence of the controversy between the same parties or others.’ ” (In re N.S. (2016) 245 Cal.App.4th 53, 58-59 (N.S.).)

The juvenile court’s termination of jurisdiction ordinarily renders it impossible for an appellate court to grant effective relief from errors allegedly made during the now dismissed dependency proceeding. (N.S., supra, 245 Cal.App.4th at pp. 60-63; In re Michelle M. (1992) 8 Cal.App.4th 326, 328-330.) Aside from the exceptions for an “ ‘issue of broad public interest that is likely to recur’ ” or “ ‘a likelihood of recurrence of the controversy between the same parties or others’ ” (N.S., at p. 59), which are not present here, an appellate court will exercise discretion to hear an appeal from orders in a terminated dependency proceeding only if the orders “continue to adversely affect appellant” (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548 (Joshua C.) and the appellate court can grant effective relief.

Here, father makes no adequate showing that he continues to be adversely affected by the disposition or placement order. The challenged disposition order is no longer in effect and his challenge to its removal and visitation components is moot, having been superseded by the subsequent exit and custody orders. As for father’s contentions regarding the format of the combined disposition/review hearing and the denial of his request for a continuance, this court cannot provide effective relief in the now-dismissed proceedings.

II

On the other hand, consideration of father’s challenge to the basis for jurisdiction is appropriate. Prior to the juvenile court’s intervention, father had sole legal and physical custody of the minors, with mother receiving visitation at father’s discretion. As a result of the jurisdictional findings the minors were removed from father’s care and later placed with mother. This led, ultimately, to the dismissal of dependency with sole legal and physical custody granted to mother and no visitation given to father. As in Joshua C., because the jurisdictional findings in this case were the basis for restrictive visitation and custody orders that continue to affect father, and because those orders would be subject to challenge if the jurisdictional basis for them was reversed, we will consider on the merits father’s challenge to the jurisdictional findings. (See N.S., supra, 245 Cal.App.4th at p. 60; Joshua C., supra, 24 Cal.App.4th at p. 1548.)

III

Father claims the order adjudging the minors dependents of the juvenile court must be set aside because the juvenile court’s jurisdictional findings were not supported by substantial evidence.[2] We disagree.

Section 300, subdivision (c) provides that a child comes within the jurisdiction of the juvenile court where “[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.”

The burden of proof in the jurisdictional phase of a dependency proceeding is preponderance of the evidence. (§ 355.) On appeal, the substantial evidence test is the appropriate standard of review. (In re Basilio T. (1992) 4 Cal.App.4th 155, 170.) “ ‘If there is any substantial evidence to support the [jurisdictional] findings of the juvenile court, a reviewing court must uphold the trial court’s findings. All reasonable inferences must be in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.]’ ” (Id. at p. 168.) “[I]ssues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “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. [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

To establish that minors came within the juvenile court’s jurisdiction under section 300, subdivision (c), the Agency had to establish “the following three elements: (1) serious emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior or a substantial risk of severe emotional harm if jurisdiction is not assumed; (2) offending parental conduct; and (3) causation.” (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.) Although there must be a present risk of harm to the minor, the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)

Father attempts to minimize the minors’ emotional distress. He also attempts to minimize his role in causing that distress, emphasizing a juvenile court comment referring to the long divorce and shared blame. But there is substantial evidence to support each of the elements for assumption of jurisdiction under section 300, subdivision (c). We find no error.

Having determined that jurisdiction in this matter was appropriately established under subdivision (c) of section 300, we need not consider the subdivision (b) allegations. “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 Alexis E. (2009) 171 Cal.App.4th 438, 451.)

DISPOSITION

The judgment and orders of the juvenile court are affirmed.

/S/

MAURO, Acting P. J.

We concur:

/S/

HOCH, J.

/S/

RENNER, J.