Filed 11/17/20 In re Emily M. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re EMILY M., a Person B304431
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 19CCJP06060A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JESSICA C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Craig S. Barnes, Judge. Affirmed in part,
reversed in part and remanded with directions.
Michelle E. Butler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel and Jacklyn K. Louie, Principal Deputy County
Counsel, for Plaintiff and Respondent.
___________________________________
Jessica C., mother of one-year-old Emily M., appeals from
the jurisdiction finding and disposition order declaring Emily a
dependent of the juvenile court and removing Emily from
Jessica’s custody after the court sustained a petition pursuant to
Welfare and Institutions Code section 3001 alleging Jessica had
mental and emotional problems that rendered her incapable of
caring for Emily. Jessica contends the court’s jurisdiction finding
and disposition order were not supported by substantial evidence.
We reverse the jurisdiction finding as to Jessica, reverse the
order removing Emily from Jessica’s custody and remand for
further findings as to whether reasonable means exist to protect
Emily short of removal from Jessica.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Detention of Emily
In August 2019 the Los Angeles County Department of
Children and Family Services (Department) received a report
that, on August 9, 2019, Max M., Emily’s presumed father, had
physically abused Jessica, who was three months pregnant, while
she was holding four-month-old Emily. When interviewed by a
Department social worker five days after the incident, Jessica
1 Statutory references are to this code.
2
said Max had been angry at her for not answering his calls
earlier in the day. When she returned home, Max yelled at her
and pushed her. Jessica tried to call for help; but Max grabbed
her phone and threw it on the ground, causing it to break.
Jessica picked up Emily and left the house, intending to walk to a
nearby relative’s house. Max followed her, pulled her by the hair,
grabbed her arm and told her she “wasn’t going anywhere.” A
passerby threatened to call the police, at which point Max
returned home and Jessica was able to safely take Emily to her
friend’s house. The next day Jessica called the police, and
reported the incident. The police report and the social worker’s
report stated Jessica had four bruises on her shoulders as a
result of Max grabbing her. Max was arrested for spousal
assault, vandalism and preventing a victim from calling law
enforcement. An emergency protective order was issued for
Jessica.
Jessica told the social worker she and Max had been in a
relationship for more than a year and had lived together for
about eight months. She insisted there had been no prior
domestic violence incidents and this was the first time Max had
gotten so angry she could not calm him down.
During the month after the incident Jessica wavered on
whether she would seek a restraining order against Max. She
and Emily had been living with Jessica’s mother and stepfather
since the incident, and she had no contact with Max. When she
first spoke to the social worker on August 14, 2019, Jessica said
she was afraid for Emily’s safety and had no intention of
reconciling with Max. She planned to apply for a restraining
order. Two days later Jessica told the social worker she was not
sure she would seek a restraining order because she did not
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believe Max would try to contact her or hurt her or Emily. After
the social worker explained the Department’s concerns about
Emily’s safety, Jessica agreed to seek a restraining order the
following week when she returned from a family vacation.
Ultimately, Jessica did not apply for a restraining order against
Max. In addition, she informed the district attorney she did not
wish to pursue criminal charges against Max, and no criminal
prosecution was initiated.
On August 20, 2019 Jessica asked to meet with the social
worker. She said she wanted to reconcile with Max although she
still had not had contact with him and did not know how he felt.
She also stated living in her mother’s home was not entirely
supportive because she did not get along with her stepfather.
She reported her stepfather had hit her when she was a child,
causing her to have suicidal thoughts at the time. Jessica was
determined to teach Emily not to allow anyone to mistreat her
and to tell someone if anything bad happened to her.
During her conversations with the social worker, Jessica
was forthcoming about her current and past mental health. She
disclosed she had been diagnosed with depression a few years
earlier during a difficult divorce. She had sought treatment in
therapy and had been prescribed medication. Jessica also felt
depressed immediately after Emily’s birth because the baby was
born prematurely and spent time in the neonatal intensive care
unit. Initially Jessica reported she did not feel depressed after
the domestic violence incident. However, after several weeks
Jessica told the social worker she believed the domestic violence
incident had brought up past trauma relating to the abuse by her
stepfather. She agreed to see a therapist.
4
On August 28, 2019 Jessica agreed to a voluntary safety
plan in which she stated she would not engage in any verbal or
physical altercations in Emily’s presence; would contact the
police if Max came to her home and acted inappropriately; and
would contact the Department if she decided to move back in
with Max. Although it does not appear to have been required by
the safety plan, Jessica agreed to begin therapy, domestic
violence classes, parenting classes and to seek housing
assistance. She declined the Department’s offer to refer her to
services, stating she was uncomfortable with government-
recommended services due to her immigration status. She said
she would seek services on her own.
Emily’s pediatrician reported the baby was up to date on
immunizations and there were no concerns of abuse or neglect as
of her last visit on August 15, 2019.
On September 12, 2019 the Department, concerned Jessica
had not sought a restraining order or criminal charges against
Max, obtained authorization to detain Emily from Jessica and
Max. It was agreed Emily would stay with her maternal
grandmother and Jessica would move.
The Department filed a petition on September 17, 2019
pursuant to section 300, subdivisions (a) and (b)(1), alleging
Max’s violent conduct toward Jessica endangered Emily’s
physical health and safety. The petition also alleged under
section 300, subdivision (b)(1), that Jessica had “mental and
emotional problems including a diagnosis of postpartum
depression, depression and suicidal ideations” that rendered her
incapable of providing regular care to Emily.
The detention report filed on the same day as the petition
stated Jessica had ensured Emily’s physical, emotional and
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medical needs were met and Jessica’s family provided a strong
support system. Nonetheless, the Department recommended
Emily continue to be detained because Jessica had minimized the
domestic violence by not pressing charges, not obtaining a
restraining order and expressing a desire to reconcile with Max.
The Department also stated it was concerned Jessica’s recent
depression was untreated.
At the detention hearing on September 18, 2019 Emily was
detained from Jessica and Max. The court ordered the
Department to provide reunification services to the family and
allowed each parent monitored visitation for a minimum of
six hours per week.
The Department filed an amended petition on
November 13, 2019, adding an allegation under section 300,
subdivision (b)(1), that Max had mental and emotional problems
preventing him from providing regular care for Emily.
2. The Jurisdiction/Disposition Report
In a report filed October 31, 2019 the Department stated
Emily was living with her maternal aunt and was cared for by
her maternal grandmother. Jessica was living with her uncles.
In an October 17, 2019 interview Jessica described the
domestic violence incident that triggered the investigation in
substantially the same way she had previously. She explained
she had been grocery shopping with her mother when Max called
her and sounded agitated. She hung up on him and refused to
answer his repeated calls because she knew it would cause a
fight. Later, after they had both returned home, he stood only a
few inches from her and yelled in her face. Jessica did not want
the situation to escalate so she did not engage Max and picked up
her phone. Max demanded the phone and, when Jessica did not
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comply, he pushed her with both hands on her shoulders and
cornered her. He grabbed the phone and slammed it to the floor.
Emily was in the room in an infant swing during the altercation.
Jessica said she did not want Emily to see the fight, so she picked
her up and left the house. Max followed her and told her to come
back. She refused, and Max pulled her hair and grabbed her
arm. Jessica said she was scared by the incident and had never
seen Max act that way before. When she told her family about
the incident that evening, they urged her to call the police to
protect Emily.
Jessica stated she wanted to reconcile with Max but only if
he went to counseling and changed his behavior. She said if Max
did not follow through, it would be difficult but she would end the
relationship to gain custody of Emily. Jessica also said she would
report domestic violence if it happened again because she wanted
to protect Emily and did not want Emily to think abuse was
acceptable.
Regarding her mental health history Jessica explained she
had suffered a period of depression four years earlier while she
had been going through a divorce. She had attended therapy and
had taken prescribed medication for approximately six months.
She had suicidal thoughts during that time, but she insisted she
would never act on them. Jessica also felt depressed immediately
after Emily’s birth because Emily had been born prematurely and
spent time in the neonatal intensive care unit. Jessica had been
worried about Emily’s health and had been sad to see her
connected to machines. Regardless, she reported she spent hours
in the hospital caring for Emily and refused to leave even when
nurses told her to go home and rest. Jessica had derived support
from talking with the other mothers and the nurses.
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The Department reported Jessica had made progress on
her case plan. She had enrolled in a 24-week domestic violence
victim program and a 12-week parenting class. However, Jessica
had not visited Emily during the month after the detention
hearing because she lived far away and did not have a car. She
did visit with Emily twice in late October.
In interviews with the Department Max, Jessica’s mother,
Jessica’s sister and Max’s mother stated Jessica was an attentive
mother and they were not concerned about Emily’s safety with
Jessica. None of them was aware of Jessica’s mental health
issues until the Department’s involvement.
The Department recommended Emily be removed from
Jessica and Max. Given their expressed desire to reconcile, the
Department believed Jessica and Max should attend domestic
violence awareness classes before reunification. The Department
also expressed concern regarding Jessica’s mental health. In
particular, the Department noted Jessica had gone into labor in
mid-October, at only five months pregnant, and the baby had not
survived. The Department opined this experience could cause a
setback for Jessica’s mental health.
In a last minute information filed on January 7, 2020, the
Department reported Jessica had ceased attending domestic
violence victim and parenting classes. Jessica had completed
six sessions of each class before informing the Department in
mid-December 2019 she would not be able to attend due to cost
and her need to find employment.
The January 7, 2020 filing attached a letter from Jessica’s
therapist, dated November 13, 2019, stating Jessica had attended
three therapy sessions in late October/early November but had
been a no-show for two sessions. The letter stated Jessica had
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been diagnosed with “major depressive disorder, recurrent,
moderate” and was working toward decreasing her depressive
symptoms.
3. The Jurisdiction/Disposition Hearing
At the jurisdiction/disposition hearing on January 7, 2020
Jessica’s counsel asked the court to dismiss the petition as to
Jessica, arguing there was no evidence her mental health had
interfered with her ability to care for Emily. Max’s counsel
argued the petition should be dismissed because Emily had not
been harmed. Emily’s counsel, however, requested the court
sustain the petition and add an allegation to the domestic
violence count stating Jessica was unable to protect Emily from
Max due to her emotional and mental health issues.
The court amended the petition by interlineation to remove
the reference to postpartum depression because Jessica had
never received that diagnosis and sustained the petition as
amended. The court explained it believed there was a risk to
Emily’s safety because both parents struggled with mental health
issues, which “manifested itself in an act of violence.”
Proceeding immediately to disposition, Jessica’s counsel
requested Emily be released to Jessica on condition that Jessica
would live with her mother. Emily’s counsel stated he was
conflicted but, given that the letter from Jessica’s therapist did
not give any detail about her progress, requested Emily be
removed from her parents.
The court declared Emily a dependent of the court and
found by clear and convincing evidence there would be
substantial danger to her physical health or safety if returned to
her parents’ physical custody and further found there were no
reasonable means to protect her without removal. As the basis
9
for its determination removal from Jessica was warranted, the
court stated the diagnosis of major depressive disorder “raises a
red flag” and “without an indication of what the treatment is
going to be or what the prognosis is, [a home of parent order is]
asking the court to take a leap of faith here.”
DISCUSSION
1. The Jurisdiction Findings Are Reviewable
Max did not appeal, and Jessica does not challenge the
juvenile court’s jurisdiction findings as to him. Those findings
provide an independent basis for affirming dependency
jurisdiction over Emily regardless of any alleged error in the
finding as to Jessica. (In re I.A. (2011) 201 Cal.App.4th 1484,
1492 [jurisdiction finding involving one parent is good against
both; “‘“the minor is a dependent if the actions of either parent
bring [him or her] within one of the statutory definitions of a
dependent”’”]; see In re M.W. (2015) 238 Cal.App.4th 1444, 1452;
In re Briana V. (2015) 236 Cal.App.4th 297, 310-311.) As a
result, even if we strike the findings as to Jessica, the juvenile
court would still be authorized to exercise jurisdiction over Emily
and to enter all reasonable orders necessary to protect her,
including orders binding on Jessica that address conduct not
alleged in the petition. (In re Briana V., at p. 311 [“The problem
that the juvenile court seeks to address need not be described in
the sustained section 300 petition. [Citation.] In fact, there need
not be a jurisdictional finding as to the particular parent upon
whom the court imposes a dispositional order”]; In re I.A., at
p. 1492 [“[a] jurisdictional finding involving the conduct of a
particular parent is not necessary for the court to enter orders
binding on that parent, once dependency jurisdiction has been
10
established”]; see generally § 362, subd. (a) [the juvenile court
“may make any and all reasonable orders for the care,
supervision, custody, conduct, maintenance, and support of the
child”].)
Nonetheless, in limited circumstances reviewing courts
have exercised their discretion to consider an appeal challenging
a jurisdiction finding despite the existence of an independent and
unchallenged ground for jurisdiction when the jurisdiction
findings “serve[ ] as the basis for dispositional orders that are
also challenged on appeal,” “could be prejudicial to the appellant
or could impact the current or any future dependency
proceedings” or “the finding could have consequences for the
appellant beyond jurisdiction.” (In re J.C. (2014) 233 Cal.App.4th
1, 4; see In re D.P. (2015) 237 Cal.App.4th 911, 917; In re
Drake M. (2012) 211 Cal.App.4th 754, 763.)
Because the jurisdiction finding as to Jessica served as the
basis for the juvenile court’s disposition order that is also
challenged on appeal, we exercise our discretion to review that
finding on the merits.
2. There Is Insufficient Evidence To Support a Finding as
to Jessica Under Section 300, Subdivision (b)
a. Governing law and standard of review
The purpose of section 300 “is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”
(§ 300.2; see In re A.F. (2016) 3 Cal.App.5th 283, 289; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.)
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Section 300, subdivision (b)(1), allows a child to be
adjudged a dependent of the juvenile court when “[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 the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child, or the willful or negligent failure of the
child’s parent or guardian to adequately supervise or protect the
child.” A jurisdiction finding under section 300,
subdivision (b)(1), requires the Department to prove three
elements: (1) the parent’s or guardian’s neglectful conduct or
failure or inability to protect the child; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re L.W. (2019)
32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; see In re R.T. (2017) 3 Cal.5th 622, 624
[“section 300(b)(1) authorizes dependency jurisdiction without a
finding that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].)
Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not
wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child.
(In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383; In re N.M.
(2011) 197 Cal.App.4th 159, 165.) The court may consider past
events in deciding whether a child currently needs the court’s
protection. (In re Christopher R. (2014) 225 Cal.App.4th 1210,
1215-1216; In re N.M., at p. 165.) A parent’s “‘[p]ast conduct may
be probative of current conditions’ if there is reason to believe
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that the conduct will continue.” (In re S.O. (2002)
103 Cal.App.4th 453, 461; accord, In re Kadence P., at p. 1384.)
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “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.” [Citation.] “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 I.J. (2013) 56 Cal.4th 766, 773.) We review the whole
record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence such that a
reasonable trier of fact could find that the order is appropriate.
(Ibid.; accord, In re I.C. (2018) 4 Cal.5th 869, 892.)
b. The Department failed to prove Jessica’s mental health
issues placed Emily at substantial risk of serious
physical harm
Nothing in the record before the juvenile court indicated
Emily had been neglected or suffered any actual harm as a result
of Jessica’s mental health struggles. Despite feeling depressed
after Emily was born, Jessica was able to spend significant time
at the hospital caring for her, and there were no allegations
Emily had been neglected once Jessica brought her home. The
family members interviewed by the Department stated Jessica
was an attentive mother. Those family members also indicated
they had been unaware of Jessica’s history of depression, which
13
suggests Jessica had been able to function normally even when
depressed.
In the absence of evidence of past harm or neglect, “mental
illness is not itself a justification for exercising dependency
jurisdiction over a child.” (In re Joaquin C., supra,
15 Cal.App.5th at p. 563; accord, In re A.L. (2017) 18 Cal.App.5th
1044, 1050 [“the law is settled that harm may not be presumed
from the mere fact of a parent’s mental illness”]; In re James R.
(2009) 176 Cal.App.4th 129, 136 [reversing jurisdiction finding
because “[a]lthough [mother] had a history of mental instability,
she had not abused or neglected the minors in the past”].)
The juvenile court based its finding that Emily faced a
substantial risk of harm on the domestic violence incident
between Jessica and Max, which it posited was a “manifestation”
of the parents’ depression. The Department takes this argument
one step further, contending Jessica’s depression “increased the
likelihood that she would make choices, such as resuming a
relationship with father prior to each of them receiving
treatment, that would place Emily at risk of harm.”
This supposed link between Jessica’s mental state and the
risk of domestic violence is entirely speculative. Whether or not
Max’s mental health may have been a factor in his violent
outburst, there was no evidence the confrontation between
Jessica and Max was precipitated or exacerbated by Jessica’s
depression; nor was there any evidence Jessica had made poor
decisions when suffering from depression in the past. In fact,
there was no evidence Jessica was experiencing depressive
symptoms at the time of the August 2019 incident. Even if she
had been, she nonetheless demonstrated an ability to protect
herself and Emily. When Max became violent, she immediately
14
attempted to remove Emily from the home, called the police the
next day and did not go back to the house. Jessica was honest
with the social worker about her feelings for Max, but remained
adamant she would not reconcile with him unless he changed his
behavior. Jessica was also forthcoming with the Department
about her mental health issues. She demonstrated she had
insight into her situation and had successfully sought help in the
past for any mental health symptoms. On this record, there was
insufficient evidence to support a finding Emily was at
substantial risk of future harm due to Jessica’s mental health
issues. (See In re James R., supra, 176 Cal.App.4th at p. 136
[speculative future harm insufficient to support finding minor at
substantial risk of future harm].)
3. There Is Insufficient Evidence To Support Removal of
Emily from Jessica’s Custody
a. Governing law and standard of review
Before the court may order a child removed from the
physical custody of a parent with whom the child was residing at
the time the dependency proceedings were initiated, it must find
by clear and convincing evidence that the child would be at
substantial risk of physical or emotional harm if returned home
and there are no reasonable means by which the child can be
protected without removal. (§ 361, subd. (c); In re T.V. (2013)
217 Cal.App.4th 126, 135; see In re Anthony Q. (2016)
5 Cal.App.5th 336, 347.) “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.” (In re T.V., at pp. 135-136.)
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In evaluating the propriety of a disposition order removing
a child from a parent or guardian pursuant to section 361 and in
view of the requirement the juvenile court make the requisite
findings based on clear and convincing evidence, we “must
determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005.)
b. The facts relied on by the juvenile court do not support
a finding by clear and convincing evidence of the need
for removal from Jessica
Even absent the jurisdiction finding as to Jessica, removal
of Emily from her custody is not precluded if it is necessary to
protect the child and there are no other reasonable means
available to ensure the child’s safety. (See In re P.A. (2007)
155 Cal.App.4th 1197, 1212 [absence of jurisdiction finding as to
parent does not preclude finding of detriment if returned that
justifies removal].)
In ordering Emily’s removal from Jessica’s custody, the
juvenile court cited Jessica’s mental health diagnosis and the
lack of evidence concerning her prognosis and treatment plan. As
discussed, a parent’s history of depression, absent some evidence
of a defined risk of harm to the child, is not sufficient to justify
removal. Moreover, it was the Department’s burden to produce
evidence Jessica’s prognosis or treatment plan indicated removal
was necessary to protect Emily. The absence of evidence on the
issue cannot be relied upon as the basis to order removal.
(See In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
16
Nonetheless, the Department argues substantial evidence
supported removal due to Max’s anger issues. It is true a finding
parents had engaged in “an ongoing cycle of domestic violence”
may be a sufficient basis to find a child’s removal is necessary to
protect the child. (See In re V.L. (2020) 54 Cal.App.5th 147, 156;
In re T.V., supra, 217 Cal.App.4th at pp. 136-137 [“[a]lthough
[minor] had not been physically injured and was otherwise
healthy, the court could reasonably find she was at substantial
risk of harm as a result of the parents’ ongoing domestic violence
and there were no reasonable means by which she could be
protected without removal”].) However, there was no evidence of
ongoing domestic violence between Jessica and Max, nor did the
court rely on the single violent episode as the basis for Emily’s
removal. While Jessica had expressed a desire to resume a
relationship with Max, she also indicated she would not do so
until he had addressed his anger issues and the relationship did
not endanger her custody of Emily.
If, as the Department now suggests, it is Jessica’s
relationship with Max that creates a substantial risk of harm to
Emily, the court must consider whether reasonable means exist
to protect Emily that are less drastic than removing her from
Jessica. (§ 361, subd. (d); see In re Ashly F. (2014)
225 Cal.App.4th 803, 810 [remand is necessary for court to make
proper findings as to whether there were reasonable means to
protect child other than removing child from nonoffending father;
“‘reasonable means’ of protecting the children that should at least
have been considered include unannounced visits by
[Department] . . . and removing [offending] Mother from the
home”]; see generally In re Henry V. (2004) 119 Cal.App.4th 522,
530-531 [“[b]ecause we so abhor the involuntary separation of
17
parent and child, the state may disturb an existing parent-child
relationship only for strong reasons and subject to careful
procedures”].)
Accordingly, the disposition order as to Jessica is reversed,
and the matter remanded for a new disposition hearing. On
remand, the juvenile court is to make its decision based on the
facts existing at the time of the further proceedings.
DISPOSITION
The jurisdiction finding and disposition order as to Jessica
are reversed, and the matter remanded for a new disposition
hearing and for other further proceedings not inconsistent with
this opinion.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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