In re D.P. CA2/8

Filed 5/8/14 In re D.P. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re D.P., a Person Coming Under the B251302
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK80799)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

CINDY P.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert S. Draper, Judge. Affirmed in part; dismissed in part.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Stephen D. Watson, Deputy County Counsel, for Plaintiff and Respondent.
******
 Cindy P. (mother) challenges the juvenile court’s jurisdictional and dispositional
orders in this appeal. We dismiss as moot the portion of the appeal seeking review of the
dispositional order and affirm the jurisdictional order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Detention
Six-year-old D.P. came to the attention of the Los Angeles County Department of
Children and Family Services (DCFS) when a referral alleged mother and D.P. were
living with maternal grandmother, and mother had been using drugs and alcohol, which
caused her to become violent and aggressive toward maternal grandmother. The referral
alleged mother had pushed and spit on maternal grandmother in D.P.’s presence. D.P.
had allegedly intervened in the past in an attempt to protect maternal grandmother, and
mother had hit him in the face. After the referral, additional allegations were made that
D.P. was the victim of sexual abuse by an unrelated male, Lawrence G., who was
mother’s coworker.
Mother and D.P. had lived with maternal grandmother and grandfather for
approximately six years. Right before the referral, in June 2013, mother and D.P.
abruptly moved out of maternal grandmother’s house and stayed with Lawrence G. They
left Lawrence G.’s place because his lease agreement allowed for one person occupancy
only. They did not have anywhere to stay, and mother was exploring transitional living
programs, motel vouchers, and additional referrals from the Los Angeles County
Department of Public Social Services.
D.P. told the social worker that mother and maternal grandmother did not get
along. He said that when mother drank wine and beer she became “mad and crazy.” She
drank wine or beer every day. He thought maternal grandmother and mother hated each
other and had heard maternal grandmother tell mother that she needed medicine because
she was “crazy.” When they argued, they yelled bad words at each other, and he
witnessed physical altercations between them. He became “scared” when they argued
and did not know what to do. He also indicated Lawrence G. touched him in the area of
his penis and buttocks. Later he told the social worker Lawrence G. was his “friend” and

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did not touch him. He reported that maternal grandmother told him to say those things
about Lawrence G. so that he could “go home with her.”
Maternal grandmother told the social worker she wanted a legal guardianship over
D.P. She said mother had an extensive substance abuse problem with marijuana and a
“white powder.” She felt mother was schizophrenic. Mother had “beat[] [her] up,”
pushed her down stairs, punched her, and spit at her. She also “belittle[d] everyone” and
had anger problems. Mother took D.P. and left maternal grandmother’s home around
June 21, 2013, but she brought D.P. back because she did not have other childcare
arrangements. D.P. was acting “not normal” and when maternal grandmother asked him
what was wrong, he described how Lawrence G. had touched him inappropriately.
Mother said she had always had a volatile relationship with her parents, but she
had struggled with childcare and relied on maternal grandmother to assist her. She
described her childhood as “rough” and said both her parents physically and emotionally
abused her. She denied any history of mental health services, psychotropic medication,
or any mental health diagnosis. She reported drinking socially and experimenting with
methamphetamine when she was younger. She denied any substance abuse. She also
denied hitting maternal grandmother but admitted to spitting on her and having heated
arguments with her. She said maternal grandmother had hit her and wished death on her,
had mood swings, and was crazy and violent. Maternal grandmother and grandfather had
thrown her and D.P. out of their house. Lawrence G. let them stay with him after that.
She did not believe he had done anything to D.P. She believed D.P. had conflicting
versions of the alleged inappropriate touching and maternal grandmother was coaching
him.
Francis B. (father) said that he did not “know [his] son” but he wanted to be in his
life. He said mother “pushed [him] away” and was vulgar and violent. He had
previously filed police reports against her because she was threatening his girlfriend. He
believed mother was an alcoholic and bipolar. She used marijuana, cocaine, Ecstasy, and
methamphetamine when they were together. He had heard mother tell D.P. that he was

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dead. Father had a criminal history and said he was working towards a governor’s
pardon.
DCFS filed a petition under Welfare and Institutions Code section 3001 alleging
mother and maternal grandmother had a history of engaging in violent altercations in
D.P.’s presence, Lawrence G. had sexually abused D.P., mother had a history of
substance abuse, and father had a criminal history. The court found a prima facie case for
detaining D.P. It ordered him detained in shelter care and gave DCFS discretion to detain
him with any appropriate relative but found that maternal grandmother was not an
appropriate relative.
2. Jurisdiction and Disposition
When interviewed again for the jurisdiction/disposition report, D.P. elaborated on
the altercations between mother and maternal grandmother. He said he had seen the two
of them fighting, hitting, punching, and spitting. They both did these things to each
other. He did not know who started the fights. He tried to help them but they “push[ed]
[him] back.” He explained that he lied previously when he said Lawrence G. touched
him. He was unable to say why he lied. He was “sad” because he did not think he was
going to go to a foster home when he lied.
Mother again denied doing anything to maternal grandmother except having “bad
arguments” with her in front of D.P. and spitting on her. They got close to each other
during arguments; she thought maybe that was why it seemed like they were physical.
Maternal grandmother had anger and resentment towards mother because she felt like
mother was “using” her to care for D.P. without paying her. Mother described her
current relationship with both her parents as “toxic.” The week after maternal
grandmother kicked them out of her house, mother was in a bind and had to ask maternal
grandmother to watch D.P. while she was working. This was when she received a
telephone call from the police asking her to go to the station because someone had

1 Further undesignated statutory references are to the Welfare and Institutions Code.

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reported allegations of sexual abuse in relation to D.P. She still believed the allegations
were absolutely untrue and maternal grandmother was coaching D.P.
Father had never seen mother and maternal grandmother “put hands on each
other,” but he had seen mother verbally abusing maternal grandmother. He felt she was
“hotheaded” and capable of being physical. Maternal grandmother had contacted him
about getting custody of D.P. She said D.P. was in danger because mother was using
drugs. He believed her because he knew mother to be a drug user in the past. Maternal
grandmother’s plan was for father to seek full custody in the family court, and he would
in turn permit D.P. to live with maternal grandmother. Father tried to do this, but the
court denied custody to him.
Maternal grandmother denied perpetrating any violence against mother. She felt
mother was the always the aggressor in their fights. She had never seen mother use drugs
but she thought mother did because of her violent behavior, which maternal grandmother
felt was “not normal.”
The social worker also interviewed Lawrence G. He knew mother and maternal
grandmother had “verbal altercations” but knew nothing about physical altercations.
Mother was a social drinker but he had never seen her use drugs. He denied the
allegations that he sexually abused D.P. He had been alone with D.P. two times, at the
most, for an hour and a half to two hours. He had never touched D.P. inappropriately.
DCFS’s assessment was that mother and maternal grandmother had created a
detrimental and dysfunctional home environment for D.P., causing him emotional
distress. It recommended D.P. remain in placement and both mother and father receive
reunification services.
At the adjudication hearing, mother’s counsel argued the court should “dismiss”
the petition under section 360, subdivision (b), which states: “If the court finds that the
child is a person described by Section 300, it may, without adjudicating the child a
dependent child of the court, order that services be provided to keep the family together
and place the child and the child’s parent or guardian under the supervision of the social
worker for a time period consistent with Section 301.” Mother’s counsel further argued

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the court should refuse to sustain all allegations except a modified version of allegation b-
2, which would state that mother and maternal grandmother had a history of engaging in
verbal altercations in D.P.’s presence, creating a detrimental and dysfunctional home
environment and causing him emotional distress. Counsel proposed D.P. then receive
individual counseling, a regional center assessment, and conjoint counseling with
mother.2
The court noted that under the proposal of mother’s counsel, “mother would not be
required to participate in any programs or receive any services.” The court struck all
allegations of the petition except the one relating to altercations between mother and
maternal grandmother. The single sustained allegation stated: “The child, [D.P.’s]
mother, Cindy [P.] and child’s maternal grandmother, Guadalupe [P.], have a history of
engaging in violent altercations in the presence of the child. On prior occasions, the
mother struck the maternal grandmother with the mother’s fists and hands. On prior
occasions, the mother pushed the maternal grandmother down the stairs. On prior
occasions, the mother spat at the maternal grandmother. On prior occasions, the maternal
grandmother struck the mother. Such violent conduct on the part of the mother and the
maternal grandmother endangers the child’s physical health and safety, and places the

2 Although mother’s counsel requested a “dismiss[al]” under section 360,
subdivision (b), the court would not dismiss the petition when proceeding under that
provision. “‘If the court agrees to or orders a program of informal supervision [under
section 360, subdivision (b)], it does not dismiss the dependency petition or otherwise set
it aside. The true finding of jurisdiction remains. It is only the dispositional alternative
of declaring the child a dependent that is not made. This is because if the family is
unwilling or unable to cooperate with the services being provided, the social worker may
institute proceedings pursuant to Welf. & Inst. Code § 332 (petition to commence
proceedings), alleging that a previous petition has been sustained and that informal
supervision was ineffective. [Welf. & Inst. Code § 360, subd. (c).]’” (In re Adam D.
(2010) 183 Cal.App.4th 1250, 1260.) Indeed, counsel’s proposal seemed to contemplate
the court would not, in fact, dismiss the petition, but would take jurisdiction by sustaining
an amended version of allegation b-2. Later in the hearing, counsel did say the petition
“should not be dismissed” but “sustained under 360(b).”

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child at risk of physical harm, damage and danger.” The court declared D.P. a dependent
of the court, removed him from mother’s custody, and ordered DCFS to suitably place
him. For D.P., it ordered individual counseling, a regional center assessment, and
conjoint counseling with mother. It also ordered drug testing, individual counseling, and
monitored visitation for mother. Mother filed a timely notice of appeal.
3. Progress Hearing and Request for Judicial Notice
On appeal, DCFS has filed an unopposed request for judicial notice of a minute
order from a progress hearing held approximately three months after the adjudication.
Generally, we review the correctness of a judgment as of the time of the court’s decision
and based on a record of the matters before the trial court at the time. (In re James V.
(1979) 90 Cal.App.3d 300, 304.) However, we may make an exception and “take
additional evidence” of postjudgment facts for any purpose in the interests of justice.
(Code Civ. Proc., § 909; see In re Linda P. (1987) 195 Cal.App.3d 99, 105.) Documents
of which we may take judicial notice include records of any California court. (Evid.
Code, §§ 452, 459.) Accordingly, we grant DCFS’s request for judicial notice of the
progress hearing minute order.
The minute order of the progress hearing shows the court terminated the suitable
placement order and ordered D.P. placed in mother’s home under the supervision of
DCFS.
STANDARD OF REVIEW 
  We review the jurisdictional finding and the dispositional findings of the juvenile
court for substantial evidence. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “In
making this determination, we draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” (Ibid.) “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.” (In re Matthew S. (1988) 201 Cal.App.3d 315,
321.)

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 DISCUSSION
1. Substantial Evidence Supported the Jurisdictional Finding
The court exercised jurisdiction over D.P. based on section 300, subdivision (b).
A child may be adjudged a dependent of the court under subdivision (b) if the “child has
suffered, or there is a substantial risk that the child will suffer, serious physical harm or
illness, as a result of the failure or inability of his or her parent or guardian to adequately
supervise or protect the child . . . .” (§ 300, subd. (b).) Mother challenges the court’s
jurisdictional finding for lack of substantial evidence. We disagree.
Sufficient evidence existed of a substantial risk that D.P. would suffer physical
harm as a result of the violent altercations between mother and maternal grandmother.
The evidence showed D.P. witnessed physical and verbal arguments between the two and
felt they hated each other. He said mother became “mad and crazy” when she drank
alcohol every day. He thought they both engaged in hitting, spitting, and yelling. He
suggested he tried to intervene in at least one instance and was pushed back, though it
was unclear who pushed him between the two of them. Maternal grandmother reported
getting in fights with mother in which mother pushed her down stairs, punched her, and
spit at her. Father also described mother as violent and hotheaded. He had witnessed
mother being verbally abusive toward maternal grandmother. Mother’s friend,
Lawrence G., had seen verbal arguments between the two. Even mother admitted to
“bad” arguments with maternal grandmother and spitting on her. All the witnesses in this
case described violent behavior on the part of mother if not maternal grandmother. Such
behavior from D.P.’s two caregivers in D.P.’s presence put him at substantial risk of
harm, especially because D.P. indicated he was distressed by the violence between the
two and had tried to intervene. (See In re John M. (2013) 217 Cal.App.4th 410, 419
[jurisdiction proper under § 300, subd. (b) based on history of violence between parents,
including both parents hitting each other and frequent verbal altercations]; In re
Heather A., supra, 52 Cal.App.4th at p. 194 [jurisdiction proper when children put in
position of physical danger from domestic violence, “since, for example, they could

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wander into the room where it was occurring and be accidentally hit” by objects, body
parts, or victim of abuse falling against them].)
Mother contends the evidence was scant because the statements of maternal
grandmother and D.P. could not be trusted. She argues D.P. lacked credibility because he
admitted to lying about Lawrence G. touching him, and maternal grandmother lacked
credibility because she had purportedly coached D.P. to lie and was motivated by a desire
to take custody of D.P. away from mother. This contention does not persuade. D.P. was
very open that he lied with respect to Lawrence G., yet he said nothing about fabricating
the evidence of mother’s and maternal grandmother’s altercations. More to the point, we
are not the arbiters of the credibility question. “Weighing evidence, assessing credibility,
and resolving conflicts in evidence and in the inferences to be drawn from evidence are
the domain of the trial court, not the reviewing court. Evidence from a single witness,
even a party, can be sufficient to support the trial court’s findings.” (In re Alexis E.
(2009) 171 Cal.App.4th 438, 451.) We may usurp the juvenile court’s factfinding role
when the statements at issue are inherently improbable, but D.P.’s and maternal
grandmother’s statements come nowhere near that standard. (In re S.A. (2010) 182
Cal.App.4th 1128, 1148.)
Mother also contends there was no current risk of harm to D.P. and no reason to
believe harm would occur in the future because mother had moved out of maternal
grandmother’s home at the time of the adjudication hearing. To the contrary, there was
no indication mother’s relationship with maternal grandmother, which mother described
as “toxic,” would improve without intervention. Mother and D.P. had lived with
maternal grandmother since D.P.’s birth, and even though they moved out of the home on
a Friday, mother took D.P. back the following Wednesday because she had no one else to
care for him. Mother was homeless and was not sure where she was going to live. The
court had reason to believe mother would continue to rely on maternal grandmother and
subject D.P. to the risks associated with their toxic relationship, given these
circumstances. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [although past incidents
alone do not establish a substantial risk of physical harm, jurisdiction may exist where

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there is “‘some reason to believe the acts may continue in the future’”].) Sufficient
evidence supported the court’s exercise of jurisdiction.
2. The Appeal from the Dispositional Order Is Moot
Mother also contends substantial evidence did not support the court’s dispositional
order removing D.P. from her custody. Assuming the court properly took jurisdiction,
mother argues it should have placed D.P. with her and ordered services under section
360, subdivision (b). DCFS argues the court’s subsequent order placing D.P. in mother’s
home renders this portion of the appeal moot and moves to partially dismiss the appeal.
We hold the subsequent home-of-mother placement order has, indeed, rendered the
challenge to the dispositional order moot and dismiss the portion of the appeal from the
dispositional order. Even if the issue were not moot, substantial evidence supported the
dispositional order.
“‘[A]lthough a case may originally present an existing controversy, if before
decision it has, through act of the parties or other cause, occurring after the
commencement of the action, lost that essential character it becomes a moot case or
question which will not be considered by the court.’” (Wilson v. L. A. County Civil
Service Com. (1952) 112 Cal.App.2d 450, 453.) “‘“[A]s a general rule it is not within the
function of the court to act upon or decide a moot question or speculative, theoretical or
abstract question or proposition, or a purely academic question, or to give an advisory
opinion on such a question or proposition. . . .”’ [Citation.] An important requirement
for justiciability is the availability of ‘effective’ relief -- that is, the prospect of a remedy
that can have a practical, tangible impact on the parties’ conduct or legal status.” (In re
I.A. (2011) 201 Cal.App.4th 1484, 1490.) “When the court cannot grant effective relief to
the parties to an appeal, the appeal must be dismissed.” (Ibid.)
Here, mother asks us to reverse the removal order so that D.P. can be placed with
her. But the juvenile court has already terminated the removal order and placed D.P. with
her. Our reversal would be an idle act, and thus we may not grant effective relief to
mother. The issue of the removal order has become moot. Still, mother asserts the issue
is not moot because the removal order could impact her ability to receive reunification

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services in any future dependency case and could compromise her position in any family
law action. She has not explained how this potential impact could actually occur by, for
example, citing to relevant statutes or other authority. Her argument consists solely of
the bare assertion without further explanation. This “specter of a future impact” does not
rise to the level of a legal or practical consequence that would disincline us to find the
issue moot. (In re I.A., supra, 201 Cal.App.4th at p. 1494.) To the extent mother is
appealing the dispositional order, that part of the appeal should be dismissed as moot.
Even if the issue were not moot, we would affirm the dispositional order. As
pertinent here, the court may not remove a dependent minor from the parents’ physical
custody unless it finds “[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 there are no reasonable means by which the minor’s physical health
can be protected without removing the minor . . . .” (§ 361, subd. (c)(1).) Mother
contends there was insufficient evidence of substantial danger to D.P. We disagree. The
same evidence we discussed in the foregoing part suggests mother had an issue with
hostile or violent behavior, and despite leaving maternal grandmother’s home, she would
continue to be around maternal grandmother and fight with her. Under these
circumstances, the juvenile court could reasonably conclude mother’s toxic relationship
with maternal grandmother continued to pose a risk of substantial danger to D.P.’s
physical and emotional well-being.
Mother argues in the alternative that the court erroneously determined it could not
leave D.P. with her and order services under section 360, subdivision (b). Her evidence
of this error is that, in response to the proposal of mother’s counsel to proceed under
section 360, the court stated: “Under the proposal by mother’s counsel, mother would
receive no services at all and not participate in any programs or receive any services.”
We do not see this as an expression by the court that section 360, subdivision (b) does not
permit mother to receive services. Read in context, the court was merely describing
mother’s proposal, which did not include any of the services the court eventually ordered
for mother -- drug testing and individual counseling. The services mother proposed were

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for D.P. only. The court’s descriptive statement was not evidence of an erroneous
interpretation of section 360.
DISPOSITION
DCFS’s request for judicial notice is granted. DCFS’s motion for partial dismissal
of the portion of mother’s appeal seeking review of the dispositional order is granted, and
that portion of the appeal is dismissed. The court’s jurisdictional order is affirmed.

FLIER, J.
WE CONCUR:

BIGELOW, P. J.

GRIMES, J.

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