Opinion
A166101 A166502
09-13-2023
In re M.V., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. N.V., Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JD223058
BOWEN, J. [*]
In these dependency proceedings, N.V. (mother) appeals from jurisdictional findings and dispositional orders concluding that her infant son M.V. (born September 2021) was described by Welfare and Institutions Codesection 300, subdivision (b), adjudging him a juvenile court dependent, and removing him from her care. Mother asserts on appeal that there was insufficient evidence to support the jurisdictional findings. She also claims that the juvenile court's dispositional removal order was not adequately supported by the evidence. And she argues that there were reasonable means available to prevent the need for the removal of M.V. from her home. We affirm.
All section references are to the Welfare and Institutions Code unless otherwise specified.
The presumed father in this case, Jorge M. (father), has not appealed from the juvenile court orders. We therefore discuss father only to the extent relevant to mother's claims.
A. Pre-Petition Matters
Mother was born in Peru in 1995. When she was three years old, she and the maternal grandmother relocated to Tennessee. The maternal grandmother married the maternal step-grandfather when mother was approximately six years old. The maternal grandparents currently reside in California.
In October and December 2020, mother was arrested in Orange County on domestic violence charges, including one domestic dispute in which she allegedly hit father on the cheek with a Brita water pitcher causing a three-inch laceration. No charges were filed with respect to either arrest due to insufficient evidence. Father had domestic violence arrests in Orange County in October and November 2020, the dispositions of which are unknown. In the October incident, father reportedly pulled mother's hair, smashed her hand into a wall, and threw her phone to the floor, breaking it. The November police report indicated that father threw mother on the bed and choked her with both hands to the point she had difficulty breathing. Police reports from the Orange County Sheriff's Department during this period showed a pattern of mother and father minimizing the domestic violence and failing to comply with recommended services and emergency protective orders.
Prior to the incidents leading to the petition in this case, father was arrested for domestic violence in San Francisco in June and August 2021. Mother was also arrested for similar violent conduct in May and June 2021. As to three of the incidents, no charges were filed due to insufficient evidence, and the disposition of the fourth, in which father was the alleged aggressor, was unknown.
In September 2021, the Agency received a referral reporting that mother was admitted to the hospital after experiencing contractions. She delivered M.V. three days later at 29 weeks, three days. Mother admitted a history of domestic violence and stated she was under a lot of stress due to her relationship with father. She had filed a restraining order against him, but he continued to harass her. This referral was evaluated out as not meriting an in-person response.
In October 2021, a reporting party expressed concern to the Agency about mother and father's long history of domestic violence. Father was apparently homeless and living in a car. Earlier that week, it was reported that he had attempted to enter mother's home forcibly, damaged a window at the front of the apartment complex to gain entry, kicked her door, and threatened to throw things at her window. Mother alerted the landlord, but when the police arrived, father was gone. Although mother had an emergency protective order, this was the third such order issued since the minor's birth and the reporting party was concerned mother never took the necessary steps to extend the temporary orders and would eventually let father back into the home. According to the reporting party, mother admitted getting into a car with father at the end of September. Father drove the vehicle erratically and almost ran over a person as he demanded money and the house keys from mother. She refused to give him the keys, and father reportedly "got physical" with mother. The Agency closed this referral as unfounded for child welfare purposes.
In December 2021, the Agency was contacted by a reporting party to whom mother had shown father's "incessant" text messages. Father threatened to kill mother and texted messages such as:" 'I would have punched you in the face last time I saw you if I knew you were going to be such a bitch.'" The messages also stated things such as mother was" 'going to pay'" and" '[f]uck you, let me see my son.' "
While this referral was still pending, the Agency received a referral from a mandated reporter on January 13, 2022, indicating that father had choked mother on January 8. In addition to applying pressure to her neck for a few minutes, father also allegedly pushed mother into the wall several times. As a result, mother had throat pain and" 'trouble'" for several days. Mother told the reporting party that the baby was crying during the incident but also told a public health nurse that he was not present.
When the social worker interviewed her, mother acknowledged a history of domestic violence, stating she nevertheless let father back into the home on January 8 because he had been apologizing and saying he wanted to see his son. Mother told the social worker that the minor was with the maternal grandmother at the time of the incident. After choking mother, father reportedly apologized, stating that he had been going through a lot and had been contemplating suicide. He told mother that he had recently attempted to jump in front of a car.
Mother further reported that on January 12, she called the police because father was in her apartment and calling her derogatory names such as" 'bitches'" and" 'whores.'" When responding to the call, the police observed the minor in mother's custody. Mother was afraid father would return to their home, so she accepted shelter resources. She reported that she had an active restraining order and that there had been between 10 and 20 unreported incidents of domestic violence and a similar number of reported incidents. The activity report for the home indicated that the police had responded there six times between September 2021 and January 2022 for threats and domestic violence complaints.
When the social worker met with mother and the maternal grandparents on January 27 to discuss implementation of a safety plan, mother started out calm and polite but quickly became dysregulated. Her voice was elevated in tone, she was crying and cursing at the maternal grandmother, and she had a difficult time calming down despite the minor being in the room. That same day the social worker received a call from a reporting party concerned about mother's mental health. The reporter indicated that mother might have bipolar disorder, as she is easily dysregulated and has" 'different personalities.' "
When the social worker reached father by telephone on February 8 to discuss the allegations, father responded:" '[W]hat incident? We've had many incidents.'" He then declined to speak with her. At a meeting on that same day, mother agreed to continue with her safety plan, which included daily check-ins with the maternal grandmother, refusing father entry to her apartment, participation in individual therapy, and completing parenting classes.
Mother subsequently admitted to the social worker that she had allowed father to stay at her place overnight when he became angry in the early morning of February 20, choked her, and shoved her" 'a bunch of times.'" He also threw items in the hallway, locked her out, and called her names like" 'bitch'" and" 'idiot.'" Once in the hallway, he threw mother to the ground and choked her again before driving away. Afterwards, mother asked strangers for help, because she was afraid she" 'would get in trouble'" if she contacted the police. Eventually, she was able to borrow a phone and chose to contact father. He picked her up and drove her to the maternal grandparents' home. When the social worker expressed concern about mother's behavior and the minor's safety, mother stated she was tired of the social worker and other agencies putting all the responsibility to fix the problem on her.
The maternal grandmother had informed the social worker that father dropped mother off at their home at 4:00 a.m. after the two had gotten into an argument. The minor had been staying with the maternal grandparents at the time. This February referral and the December referral were evaluated out due to the Agency's ongoing involvement with the family.
B. Original Petition and Detention from Father
On February 23, 2022, the Agency filed a dependency petition with respect to M.V., alleging that the minor came within the provisions of section 300, subdivisions (b)(1) and (c) due to the ongoing and extensive domestic violence between mother and father. The petition additionally alleged that both parents had mental health issues requiring further assessment and treatment. The Agency obtained a removal warrant that same day authorizing the Agency to detain M.V. from mother. At the detention hearing on February 24, the court made temporary removal findings, continued the matter to March 1 for a further hearing on detention, and ordered mother to surrender the minor. As of February 28, however, mother had refused to do so.
In the meantime, mother's case manager at the Homeless Prenatal Program was expressing concern about mother's mental health and her involvement with father. Mother's participation in the program was sporadic, and the case manager had not been able to reach any goals with her given her pattern-she would be okay, but then she would talk to father and disappear. When the social worker attempted to clarify the court's removal order with mother during a telephone call on February 25, mother immediately began yelling and insulting the social worker and claimed the worker looked like she was related to father.
That same day, the social worker spoke with a Daly City police officer who was following up on the theft of father's car by mother on the weekend of February 18. Mother denied taking the car despite video evidence showing her entering the car with the minor, but later told father where the vehicle could be found. According to the police officer, mother was very worked up and was convinced the social worker was married into father's family. Also, the social worker received a call from a sergeant with the San Francisco Police Department's Special Victims Unit on February 25 reporting that between August 2020 and February 2022 he had investigated approximately 15 incidents of domestic violence between mother and father in which father was predominantly the aggressor. He described the pattern where mother would get abused and then "get right back" with father. The sergeant expressed his opinion that," '[i]f she keeps letting [father] back, the child is not safe.' "
On February 28, 2022, the social worker spoke with the maternal grandmother, who described mother as very paranoid and refusing to leave the maternal grandmother's home. Mother had gone to a hotel far away with the minor after the removal order, but the maternal grandmother convinced her to return to San Francisco. According to the maternal grandmother, she was "living a nightmare" and "living in fear" because her daughter was very difficult to deal with. However, she was afraid mother would "do something fatal" if she asked her to leave her home.
Mother's attorney later filed emails from the maternal grandmother stating she did not recall making this statement. The maternal grandmother also denied that she ever told a service provider that mother had a mental health diagnosis.
At the contested detention hearing on March 9, 2022, the court formally detained the minor from father, but agreed to a mediated resolution with respect to mother whereby she would retain custody of the minor if she: continued to live in the maternal grandmother's home; completed a psychological evaluation and followed any recommended treatment; participated in a domestic violence support group; complied with the temporary restraining order against father; engaged in Homeless Prenatal Program services; engaged in family therapy with the maternal grandparents; signed all releases of information; and continued to participate in Agency meetings.
The progress report filed in advance of an interim hearing set for March 28, 2022 was largely positive. Mother was receiving intensive case management services from the Homeless Prenatal Program, including housing resources and connection to mental health services. She had completed a parenting support group for babies and a prenatal support group and was engaging with a postnatal support group and individual therapy. She was early in the process of engaging in a domestic violence group. Mother was also receiving housing support from Compass Family Services and was waitlisted for family therapy with the maternal grandparents.
However, the conflict between the mother and the maternal grandparents was intensifying and, on March 19, the maternal grandmother asked mother to leave the home after she allegedly tripped the maternal grandfather, injuring his knee. According to mother, the maternal grandfather was calling her derogatory names. The social worker learned about the situation on March 22 and also discovered that mother had been leaving grandmother's home with the minor during the day, apparently on the advice of her attorney and minor's counsel, even though this was not part of the stipulated plan and was done without Agency involvement. The social worker set meetings for March 25 and 29 to revisit mother's safety plan based on this new information.
C. Amended Petition and Detention from Mother
After learning mother had absconded with the minor on March 26, 2022, and that the whereabouts of mother and baby were unknown, the Agency filed a first amended dependency petition with respect to M.V. on March 29, 2022, alleging the child came within the provisions of section 300, subdivisions (b)(1), (c), and (g) and seeking his detention from mother. Reportedly, mother called the maternal grandmother on March 27, stating the two were safe and doing well but they would no longer be in contact. According to the maternal grandfather, he had tracked mother's phone to Vancouver, Canada. The social worker filed a missing minor report with the police and requested an AWOL warrant from the court. Mother's attorney subsequently reported that mother was not in contact with father and that she and the minor were safe. At the hearing on March 30, 2022, the juvenile court ordered M.V. detained from mother.
The jurisdictional and dispositional hearings were continued for several months while efforts were made to bring mother and baby back before the juvenile court. In the meantime, in May 2022, mother's attorney filed a motion to dismiss the dependency petition or place the minor with mother. The motion was supported by a contemporaneous declaration executed by mother explaining her current situation and arguing that she could care for her son. She revealed that father initially began stalking her in 2015. Shortly thereafter, mother's attorney also filed a motion to be relieved as counsel, reporting that mother had been clear that she desired new legal representation. On June 1, 2022, the court denied without prejudice the motion to dismiss or place the minor with mother, granted mother's counsel's motion to be relieved, and appointed new counsel for mother.
Thereafter, on June 29, 2022, the minor's counsel filed a request for an order to authorize the maternal grandmother to travel with the minor. Reportedly, mother had flown with the child from Canada to Peru on June 21 to visit the maternal great grandmother, who was in declining health. Several days later, mother was reportedly psychiatrically detained. The maternal grandmother had flown to Peru and was caring for the child but needed assistance in returning him to the Agency. Authorization for grandmother to travel with the minor was issued on June 30, 2022.
The maternal grandmother flew with the minor back to San Francisco on July 3, 2022. The juvenile court ordered the minor placed in foster care, but stated it would consider placement with the maternal grandparents if the parties could agree on an appropriate safety plan. Mother was in Tennessee, but stated she was safe and that she planned to return to San Francisco within days. According to mother, while she was in Peru, the maternal grandmother drugged her and had her committed to a psychiatric hospital in order to steal the minor from her. The maternal grandmother, in contrast, claimed that shortly after mother arrived in Peru, there was an altercation between mother and a maternal relative. The maternal great grandmother intervened, which resulted in her hospitalization. Later, mother complained of muscle pain and asked the maternal grandmother to take her to the hospital. Mother was detained for a mental health evaluation, but she left the hospital without permission and thus was never fully evaluated. On July 22, 2022, the court placed the minor with the maternal grandparents and ordered professionally supervised visitation for mother.
Upon mother's return from Tennessee, a new social worker was chosen to evaluate the situation. She discussed recommended services with mother, including parenting classes, individual therapy, a psychological/medication evaluation, and domestic violence prevention services, all of which mother agreed to. Mother stated that, while in Peru to visit the maternal great grandmother, she was attacked by a maternal aunt and treated poorly. She maintained that the maternal grandmother then drugged her and had her psychiatrically committed. The social worker observed that mother had significant anxiety regarding others caring for her son.
The social worker also spoke to the maternal grandmother, who reported that mother and a maternal aunt got into a physical altercation, and the 85-year-old maternal great grandmother collapsed while trying to break up the fight. The maternal grandmother acknowledged that the maternal aunt talks a lot and was questioning mother, and thus both women were at fault for the escalation. After the maternal grandmother's siblings called her to come get mother, she flew to Peru, mostly out of concern for the maternal great grandmother. The morning after the maternal grandmother arrived, the maternal aunt again began antagonizing mother, the aunt slapped mother, and they began to fight. The maternal grandmother reported she had to obtain the assistance of a man walking down the road outside to break them up.
The next morning mother reported pain from the fight and appeared erratic and impatient, complaining of not being able to sleep. The maternal grandmother and a maternal uncle took her to the hospital, but there was no doctor on site. After discovering that the local clinic had an extensive wait, they returned home. Mother then stated she was going for a walk and, when she returned several hours later, asked the maternal grandmother for a Tylenol PM to help her sleep. The maternal grandmother did not have a Tylenol, so she gave mother one of the maternal great grandmother's prescription-strength sleeping pills and she slept for four hours. When she awoke, mother was adamant about going to the hospital, even though it was midnight. The maternal grandmother and maternal uncle took her back to the hospital, but there was still no doctor on duty, so they drove two hours to a city with a big hospital. According to the maternal grandmother, the hospital did an initial evaluation of mother over the course of three days and felt she should be further evaluated for a possible personality disorder. Mother, however, left the hospital against medical advice before the evaluation could be completed. The maternal grandmother stated she wanted to work things out with mother and was concerned about her mental/emotional health as the situation had been a lot to deal with. She disclosed that father had been with mother when she was recently in Tennessee.
According to mother, she did not leave the hospital against medical advice but simply failed to wait for someone to sign her out. She reported that she had been hospitalized with a very strong sedative in her system. When she went to Tennessee, she saw a psychiatrist who was a friend of the maternal grandmother that stated she needed medication for bipolar disorder and anxiety. However, the medication made her feel bad and another psychiatrist told her she did not have to take it. Mother admitted that father met her in Tennessee and drove her back to California. Mother reported that she had encountered "a great deal of trauma in her life" at the hands of the maternal grandparents, but no specifics were disclosed. She was not interested in having an ongoing relationship with them because she felt too much had happened.
The social worker opined that the truth of what happened in Peru likely fell somewhere in the middle of the two accounts. She further stated that it was evident mother loved the minor very much but had some significant mental health/emotional issues for which she required assessment and treatment. The social worker believed that the domestic violence which brought the family to the Agency's attention had been placed on the back burner due to mother's mental and emotional health, her absconding with the baby, and her at times strained relationship with her parents. She recommended reunification services for mother but indicated that the Agency remained concerned about her ability to keep herself and the baby safe and protect the child from future domestic violence. The worker saw mother as lonely and vulnerable and believed this could make her susceptible to manipulation by father.
D. The Jurisdictional and Dispositional Hearing
The jurisdictional and dispositional hearing was finally held on August 22, 2022. The Agency filed a second amended petition containing subdivision (b) language agreed upon among the parties, which alleged that the minor was at substantial risk of suffering serious physical and/or emotional harm due to the domestic violence between mother and father. The petition alleged as facts in support of a jurisdictional finding that: (1) "[T[here have been 10-20 documented domestic violence incidents and 10-20 undocumented domestic violence incidents. Both parents have been arrested at various times related to the conduct, though father has been arrested more often. Police were called in both Northern and Southern California. There is a pending criminal case against father in San Francisco." (2) "Protective orders have been ineffective to stop the intimate partner violence." (3) "In February 2022, mother executed a safety plan with the Agency which required that she maintain distance from father. Mother did not enforce the plan and there was an additional incident between the parents." The second amended petition additionally alleged that "mother has mental health issues for which she requires further assessment and treatment, and which impede[] her ability to appropriately care for the minor." A similar mental health allegation was made with respect to father. Allegations pursuant to subdivisions (c) and (g) were deleted.
The Agency submitted all of the social worker reports in the case into evidence. Father submitted to jurisdiction and disposition based on the amended language. After brief testimony from the current social worker, mother provided a statement to the court in lieu of testimony regarding her current situation and engagement in services. During argument, mother's attorney did not challenge the allegations in the petition, asserting instead that they were insufficient to support jurisdiction pursuant to subdivision (b) of section 300. The court disagreed. Noting its concern was specifically the domestic violence allegations in the operative petition and that it was not considering mother's removal of the minor from the court's jurisdiction, the juvenile court found that M.V. was a child described by subdivision (b) of section 300.
Moving to disposition, the court considered but rejected mother's argument that the minor should be returned to her under a family maintenance plan. While it recognized mother's recent positive progress, the court found by clear and convincing evidence that there was still a substantial danger to the minor's physical and emotional wellbeing if he was returned to mother and that there were not reasonable means to protect the child short of removal from both parents. The court declared the minor to be a juvenile court dependent, formally removed him from the custody of mother and father, ordered reunification services for mother, and set a 90-day review. The matter was then continued to September 7, 2022, so that services could be developed for father, who had been elevated to presumed status.
Mother initially filed a notice of appeal on September 8, 2022, appealing the jurisdictional findings and dispositional orders of the court made on August 16, 2022 (A166101). Those orders, however, were actually made on August 22. On November 1, 2022, mother filed an "amended" notice of appeal from the same orders which included the dates August 16 and 22, 2022 (A166502). We consolidated the two appeals on November 29, 2022. Under the circumstances, we will accept mother's consolidated appeal as timely. (See Cal. Rules of court rule 8.405(a)(3) [in juvenile dependency matters "[t]he notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed"].)
II. DISCUSSION
A. Jurisdictional Findings
1. Legal Framework
Dependency jurisdiction may be asserted under subdivision (b) of section 300 if "[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 . . . [¶] . . .[t]he failure or inability of his or her parent . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1)(A).) "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." (In re R.V. (2012) 208 Cal.App.4th 837, 843.) Rather, "[t]he focus of section 300 is on averting harm to the child." (In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.).)
It is well settled that physical violence between a child's parents may support the exercise of jurisdiction under subdivision (b)(1) of section 300 where there is evidence that the domestic violence has placed the child at risk of physical harm and the violence is ongoing or likely to recur. (In re M.W. (2015) 238 Cal.App.4th 1444, 1453-1454; In re R.C. (2012) 210 Cal.App.4th 930, 941-942; In re Daisy H. (2011) 192 Cal.App.4th 713, disapproved on another ground in In re D.P. (2023) 14 Cal.5th 266, 278 (D.P.).) "It is clear . . . that domestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A. (1996) 52 Cal.App.4th 183, 194 (Heather A.), disapproved on another ground in In re R.T. (2017) 3 Cal.5th 622, 628-629 (R.T.).) The relevant inquiry under section 300, subdivision (b)(1), is whether circumstances at the time of the jurisdictional hearing" 'subject the minor to the defined risk of harm.'" (T.V., supra, 217 Cal.App.4th at p. 133.)
"The court may consider past events in deciding whether a child currently needs the court's protection." (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383, superseded by statute on another ground as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322; see T.V., at p. 133.) Indeed, in a domestic violence situation, past violence is highly probative of the risk that violence may recur. (See In re E.B. (2010) 184 Cal.App.4th 568, 576 [" '[P]ast violent behavior in a relationship is "the best predictor of future violence." Studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of these relationships.' "], disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 (O.B.).); In re John M. (2013) 217 Cal.App.4th 410, 419 [concluding even a single incident of domestic violence may be sufficient to support a jurisdictional finding under section 300, subdivision (b)], disapproved on another ground in R.T., supra, 3 Cal.5th at pp. 628-629.) To establish a defined risk of harm at the time of the hearing, there "must be some reason beyond mere speculation to believe the alleged conduct will recur." (In re D.L. (2018) 22 Cal.App.5th 1142, 1146 (D.L.).)
A jurisdictional finding that the minor is a person described in section 300 must be made by at least a preponderance of the evidence. (§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) "We review the jurisdictional findings for substantial evidence. [Citation.] We consider the entire record, drawing all reasonable inferences in support of the juvenile court's findings and affirming the order even if other evidence supports a different finding. [Citation.] We do not consider the credibility of witnesses or reweigh the evidence." (In re Isabella F. (2014) 226 Cal.App.4th 128, 137138.) "The parent has the burden on appeal of showing there is insufficient evidence to support the juvenile court's order." (Id. at p. 138.)
2. Substantial Evidence Supports the Domestic Violence Findings
Mother first asserts that substantial evidence does not support the finding under section 300, subdivision (b)(1) that M.V. was "at substantial risk of suffering serious physical and/or emotional harm due to the domestic violence between [] mother and father." As mentioned above, mother does not challenge any of the supporting allegations found true by the juvenile court. Rather, she asserts that, even if true, they are insufficient to support jurisdiction. In other words, mother asserts that there was no nexus between the allegations and any injury or risk of injury to the baby. We are not persuaded.
The relevant inquiry under section 300, subdivision (b)(1) is whether circumstances at the time of the jurisdictional hearing" 'subject the minor to the defined risk of harm.'" (T.V., supra, 217 Cal.App.4th at p. 133.) Here, we have no difficulty concluding that M.V. was subject to such a risk. The history of past domestic violence in this case is stunning. Based on mother's own account-as supplemented by police documentation and other evidence- the couple engaged in at least 29 to 40 discrete incidents of domestic violence during the course of an 18-month relationship. Mother was pregnant with the minor during a significant portion of this time. Moreover, a number of the incidents involved strangulation, which is "recognized as one of the most lethal forms of violence." (The Shelter for Abused Women and Children, Why Strangulation in Domestic Violence is a Huge Red Flag <https://naplesshelter.org/strangulation/ (as of September 13, 2023) ["Because such a thin line exists between unconsciousness and death, strangulation sits just before homicide on the continuum of domestic violence risk assessment."].) Given this extensive and serious history of domestic violence-along with the minor's extreme youth and attendant vulnerability-substantial evidence supports the conclusion that the repetitive violence between mother and father subjected M.V. to a substantial risk of harm at the time jurisdiction was established.
In reaching this conclusion, we reject mother's contention that the allegations are insufficient to support jurisdiction under subdivision (b)(1) of section 300 because there was no evidence the minor was ever present during any of the physical altercations between the parents. Preliminarily, we note that M.C. certainly was physically present in utero during many of these incidents. Indeed, it is a reasonable inference from the evidence that the ongoing violence between the parents may have contributed to his premature birth. In addition, the baby was present during the January 12 incident of verbal abuse which could easily have escalated into physical violence given the parents' history.
Even putting aside these facts, however, we would still affirm the jurisdictional finding, as a child's previous exposure to the domestic violence, while relevant, is not always required. (See Heather A., supra, 52 Cal.App.4th at p. 194 ["It is clear . . . that domestic violence in the same household where [a child] is living is neglect; it is a failure to protect [the child] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (Some italics added.)]; see also T.V., supra, 217 Cal.App.4th at p. 135 ["[e]ven though [the child] had not been physically harmed, the cycle of violence between the parents constituted a failure to protect her 'from the substantial risk of encountering the violence and suffering serious physical harm or illness from it' "].) The sheer number and serious nature of the domestic violence incidents in this matter created a substantial risk that the baby would encounter similar violence between his parents in the future and suffer physical or emotional harm, especially as mother had not meaningfully engaged in any structured services to address the entrenched domestic violence present in her relationship with father. As stated above, "[t]he focus of section 300 is on averting harm to the child." (T.V., supra, 217 Cal.App.4th at p. 133.) To accept mother's position and require that a child be physically present during even a single domestic violence incident before jurisdiction could be established would subvert the clear statutory intent of preventing harm to children before it occurs.
Nor do we agree with mother that jurisdiction was inappropriate because at the time it was established, there had not been any reported domestic violence incidents for six months and mother was at last abiding by the terms of the then current restraining order. We recognize mother's incipient progress under these circumstances, as well as what generally appears to have been her appropriate day-to-day care of young M.V. However, the record is replete with evidence that over the course of years, mother resumed contact with father again and again despite the existence of safety plans and protective orders. Further, for almost five months of the six-month period before jurisdiction, mother was in hiding with the minor or out of the country, making father much easier to avoid. Once she returned to the United States-and a mere month before the jurisdictional hearing- mother soon called father for a ride and then drove across the country with him from Tennessee to California. In short, there is a significant risk that mother will continue her pattern of placing herself and the minor at risk by associating with father in violation of court orders and contrary to the terms of safety plans to which she has agreed.
Mother notes that neither parent had been convicted of domestic violence prior to the minor's birth. However, this fact simply underscores the couple's pattern of minimizing the frequent instances of domestic violence and repeatedly failing to comply with protective orders. In light of the overwhelming evidence in the record of domestic violence that has occurred between the parents, the lack of a criminal conviction can hardly be deemed dispositive to our decision, much less necessary.
Moreover, throughout the proceedings below, mother made a number of statements indicating domestic violence education would be an important part of her reunification plan. Early on, mother commented:" 'I'm very limited in what I can do and [father] knows this, this is why the situation occurred in the first place (referring to recent incident) . . . I sometimes feel safest when I'm cooperating with him because at least I know where he is and at least I have control over some things maybe that is just an illusion.'" Similarly, she complained to the social worker that she felt as though all the responsibility was being put on her to fix the problem. And later, in her declaration in support of her motion to dismiss, mother still appeared not to understand how her own conduct contributed to the cycle of abuse, declaring: "Although I followed suggestions from police, victims advocates, and other domestic violence support personnel [father] was allowed to continue establishing a pattern of abuse."
Crucially, while mother had engaged in a number of services prior to the jurisdictional hearing, she had yet to start domestic violence counseling. In a report prepared at the end of March 2022-the same timeframe in which mother fled with the minor-the social worker stated that mother had participated in a consultation with the domestic violence representative at the Homeless Prenatal Program and was "in the process of engaging" in a domestic violence group. At the jurisdictional hearing in August 2022, nearly half a year later, the social worker testified that mother had still not engaged in domestic violence services. The social worker also noted in her most recent report that she was worried mother was lonely and vulnerable and thus might well be susceptible to manipulation by father. Under these circumstances, substantial evidence supported a defined and continuing risk to the minor, despite the initial progress mother had made.
3. Substantial Evidence Supports the Mental Health Finding
Mother also asserts that there was no substantial evidence to support a jurisdictional finding under subdivision (b) of section 300 that M.V. was at substantial risk of harm based on her inability to provide regular care for him due to mental illness. (See § 300, subd. (b)(1)(D).) Here, the juvenile court found true the allegation that mother had "mental health issues for which she requires further assessment and treatment, and which impede[] her ability to appropriately care for the minor." Mother contends this true finding must be reversed. We disagree.
Mother argues extensively that there was no evidence in this case that she had a diagnosed mental illness or that any such illness impacted her ability to provide regular care for M.V. While we don't necessarily disagree, this argument misses the mark. Neither do we completely endorse the approach suggested by the Agency, that we need not consider the mental health finding at all because a statutory basis for jurisdiction pursuant to subdivision (b) of section 300 already exists on domestic violence grounds. (See In re D.P. (2014) 225 Cal.App.4th 898, 902 [" '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.' "].)
Rather, we note that the juvenile court found all of the allegations true and then concluded that the minor was generally described by subdivision (b). While we agree that, standing alone, the mental health allegation might not be sufficient to support subdivision (b) jurisdiction, we conclude the finding is both relevant to the domestic violence allegations and supported by substantial evidence. Indeed, mother did not argue before the juvenile court that the allegation, as written, was untrue. And while the evidence regarding mother's mental health was mixed, there was undoubtedly sufficient evidence to support the conclusion that her mental health was impacting her ability to protect M.V. from the ongoing risks of domestic violence, and that further assessment and treatment were required.
We note that there were concerns that mother might struggle with bipolar disorder stretching back to her teen years and confirmed most recently, by mother's own account, when a psychiatrist in Tennessee diagnosed her with both bipolar disorder and anxiety. Mother's documented tendency to become dysregulated and what appears to be impulsive decision making (such as taking the minor with her to steal father's car) is consistent with these conclusions. Mother was also clear in reporting that she had experienced significant, unspecified trauma while growing up with the maternal grandparents which needed to be explored. She showed signs of paranoid behavior in her apparent belief that a social worker in this case was married into father's family and thus, presumably, against her. And her physical altercations with members of her maternal family and her apparent hospitalization for some form of suspected mental health issue or episode while in Peru also strongly indicate the possibility that mother's mental health impacts her ability to protect the minor from domestic violence. We note in this regard that during one physical altercation between mother and a maternal aunt in Peru, the baby was reportedly downstairs, alone and crying. The difficult situation mother found herself in-as a young and victimized single mother of an infant-was no doubt anxiety provoking and a source of significant stress. However, the evidence before the court was sufficient to support the juvenile court's conclusion that mother's mental health was impacting her overall ability to care for the minor and required further assessment and treatment by a neutral clinician for the sake of both mother and baby.
In sum, substantial evidence supported all of the jurisdictional findings in this case and those allegations were sufficient to take jurisdiction over the minor pursuant to subdivision (b) of section 300.
B. Dispositional Removal Order
1. Legal Framework
After finding that a child is a person described in section 300, the juvenile court, "shall hear evidence on the question of the proper disposition to be made of the child." (§ 358, subd. (a).) In doing so, the court considers the social worker's report and any relevant or material evidence offered. (Id., subd. (b)(1).) The court generally chooses between allowing the child to remain in the home of a parent with protective services in place and removing the child from the home while the parent engages in services to facilitate reunification. (In re E.E. (2020) 49 Cal.App.5th 195, 205.)
In order to remove a child from parental custody at a dispositional hearing, the juvenile court must make one of a number of statutorily enumerated findings by clear and convincing evidence. (§ 361, subd. (c).) Here, the juvenile court found with respect to M.V. that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home," and that there were "no reasonable means" by which the minor could be protected short of removal. (Id., subd. (c)(1).) A removal order on these grounds" 'is proper if based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances.'" (In re A.S. (2011) 202 Cal.App.4th 237, 247, disapproved on another ground in O.B., supra, 9 Cal.5th at p. 1010, fn. 7.)
"[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (O.B., supra, 9 Cal.5th at pp. 995-996; see also In re V.L. (2020) 54 Cal.App.5th 147, 154-155.)
2. There is a Justiciable Controversy
The Agency argues preliminarily that we need not consider mother's challenge to the dispositional removal order because, we are informed, young M.V. was returned to mother's care at the sixth-month review hearing. It is no doubt true that courts are tasked "with the duty' "to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." '" (D.P., supra, 14 Cal.5th at p. 276.) In the dependency context," 'the critical factor in considering whether [an] appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error.'" (Ibid.) Put another way-as our high court recently clarified-if "a parent has demonstrated a specific legal or practical consequence that would be avoided upon reversal" the challenge is not moot. (Id. at p. 283.)
Here, assuming the minor was returned to mother at the 6-month review, the existing dispositional order could still have clear practical and legal consequences for mother. For a child of under three years of age at the time of removal-as was the case for M.V.-reunification services are presumptively limited to six months and may be extended to 12 or 18 months only if specific and increasingly onerous findings can be made by the juvenile court. (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843-845.) Further, section 361.5, which sets forth the relevant timeframes for the provision of reunification services, expressly provides that "[p]hysical custody of the child by the parents or guardians during the applicable time period . . . shall not serve to interrupt the running of the time period." (§ 361.5, subd. (a)(3)(B).) Thus, if the minor is removed again from mother during the course of these proceedings, her timelines for the provision of any additional services will be significantly limited based on the initial removal order she now challenges. Under such circumstances, mother's claim is not moot.
Given our resolution of this mootness claim, we deny the Agency's request for judicial notice filed on April 24, 2023 as unnecessary to our decision.
3. Substantial Evidence Supports the Removal Order
Mother argues there was not clear and convincing evidence of a substantial danger to the minor necessitating his removal from her physical custody at the dispositional hearing. Specifically, she asserts that-even if this court rejects her arguments that the evidence was insufficient to support the jurisdictional findings-those same arguments should be credited in the dispositional context where a higher standard of proof applies. We are not convinced.
It is true that jurisdictional findings (made by a preponderance of the evidence) are not in and of themselves sufficient to justify a dispositional removal order (made by clear and convincing evidence). However, the evidence supporting the juvenile court's jurisdictional findings in this matter was robust. Frankly, in our view, this was not even a close case. Thus, we have no difficulty determining that this same evidence supports the juvenile court's finding (based on the higher standard of proof) that there remained "a substantial danger to the physical health, safety, protection, or physical or emotional well-being" of this minor if he was returned home. (§ 361, subd. (c)(1).) As discussed at length above, the frequency and seriousness of the violence between mother and father as well as both parents' repeated failures to comply with the terms of safety plans and protective orders presented an ongoing risk to M.V. And mother's assertions to the contrary notwithstanding, substantial evidence also supported the conclusion that her unresolved mental health issues, in the context of the ongoing domestic violence between her and father, contributed to this continued risk.
Finally, mother contends substantial evidence did not support the juvenile court's finding that no reasonable alternatives were available to protect the minor short of removal, despite the "good things" she had been doing. The "no reasonable alternatives" and "reasonable efforts" findings made in dependency proceedings are linked. (See In re Ashly F. (2014) 225 Cal.App.4th 803, 809.) Essentially, a juvenile court must determine that despite the reasonable efforts of the child welfare agency there were no reasonable means of protecting the child except to remove him/her from the home. (Id. at p. 811.) A review of the Agency's efforts in this case belies mother's claim.
Initially, when made aware of the two incidents of domestic violence on January 8 and 12, 2022, the Agency responded by crafting a safety plan under which mother would retain the minor in her care if she would not allow father in the home, check in daily with the maternal grandmother, and participate in individual therapy and parenting classes. Mother ignored this plan and another serious domestic violence incident occurred between the parents. The Agency then filed its original petition, and the court ordered detention from both parents. However, despite the fact that mother refused to relinquish the child, the parties worked out a mediated agreement whereby she could retain custody if she followed the terms of a specific plan which included living with the maternal grandmother and participating in relevant services. Mother was unable to maintain in the maternal grandmother's home and responded to this setback by fleeing the jurisdiction with the minor. Then, one month before the dispositional hearing, having failed to engage in any domestic violence services or complete a psychological evaluation as agreed upon, mother returned to California in the company of father by driving across the country. Even then, the Agency had a new social worker assess the case and work diligently with mother to support her engagement in services and the protection of the minor.
Indeed, the only specific claim mother makes with respect to reasonable alternatives is that the Agency did not collaborate on a new safety plan with mother after she returned from Peru to California. This was, however, an understandable decision given the prior history in this case. And though mother also complains that no services were provided to her after she returned to California in the month prior to disposition, this is simply untrue. The new social worker met with mother on July 26 and discussed the recommended services, which mother agreed to engage in. Thereafter, the social worker met with mother twice weekly, handled her daily emails, answered her calls in the late evening, responded to her text messages, and even made herself available to mother on her days off. In short, mother was getting "more time than any other client" at that juncture. Substantial evidence thus clearly supports the juvenile court's conclusion that there were, at that point, no reasonable means short of removal to protect the minor.
Mother suggests that the juvenile court could simply have ordered a family maintenance plan, but the court had already concluded that return of the minor to mother would have placed him at substantial risk of harm at this juncture, a determination which we have upheld on appeal.
For the same reasons we reject mother's argument, based on similar grounds, that the Agency failed to make reasonable efforts to prevent the need for the minor's removal from mother.
In making these determinations, we would like to stress that juvenile dependency proceedings are meant to protect the child, not to blame or punish the parents. While we have concluded that a substantial risk still existed for this young minor at the time of the jurisdictional/dispositional hearing, we see much in this record regarding mother's efforts that is commendable. Mother clearly cares deeply for M.V. and has shown strength and resiliency during very difficult circumstances. We hope that these attributes, along with her engaging in the services provided by the Agency and following the terms of her court-ordered plans, allow both mother and baby to thrive in a safe and supportive environment.
III. DISPOSITION
The jurisdictional findings and dispositional orders are affirmed.
WE CONCUR: HUMES, P. J. MARGULIES, J.
[*]Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.