Filed 6/3/21 In re Joseph I. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JOSEPH I. et al., Persons B310478
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP05210A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOSE I.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Craig S. Barnes, Judge. Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
******
Jose I. (father) appeals the juvenile court’s orders exerting
dependency jurisdiction over his two sons, removing the sons
from his custody and specifying that father’s visitation be
monitored. The last two issues are moot because the juvenile
court subsequently vacated its removal order. The first issue
lacks merit because substantial evidence supports the exertion of
jurisdiction. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and Aurora L.-R. (mother) have two sons—Joseph I.
(born 2004) and Jayden I. (born 2009).
On August 17, 2020, mother and father got into a heated
argument after mother slapped father’s cell phone out of his
hand. Father put mother in a chokehold from behind and
“squeezed” her neck, prompting her to repeatedly cry out, “I can’t
breathe!” Mother later recounted that she feared for her life.
Despite mother’s pleas, father did not let mother go until Joseph
came downstairs, got “in the middle” of the fray, and demanded
that father let mother go. After mother and father tumbled to
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the floor, father left. The chokehold caused mother’s neck to
redden, and mother also got a scratch on her arm during the
melee.
This was not the first incident between the parents. In
2013, father and mother got into a “heated” verbal argument
while both children were home that ended when both parents
called the police. In their initial calls to 911, each parent
reported that the altercation had been physical, but each told the
cops who responded that the altercation had been purely verbal.
Both Joseph and Jayden reported that their parents had
repeatedly had verbal arguments in the past. Mother’s sister
also reported that father was “verbally abusive” to mother.
Father previously had some sort of “altercation” with
Joseph, although the record does not indicate whether the
altercation was physical or entirely verbal.
Father has a “temper” that needs to be “control[led].”
II. Procedural Background
A. Initial petition
On October 2, 2020, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Joseph and Jayden (“the sons”) on the ground that the parents’
“domestic violence dispute” on August 17, 2020, constituted a
“violent altercation,” and that father’s conduct as well as mother’s
failure to prevent that conduct by allowing father to reside in the
family home “place[d] the children at risk of serious physical
harm.” The Department alleged that jurisdiction was
appropriate (1) under subdivision (a) of Welfare and Institutions
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Code section 300,1 because the conduct posed a “substantial risk
that [the sons] will suffer[] serious physical harm inflicted
nonaccidentally upon [them] by [their] parent . . . .” (§ 300, subd.
(a)), and (2) under subdivision (b) of section 300, because the
conduct posed a “substantial risk that the child[ren] will suffer[]
serious physical harm or illness” due to the parents’ “failure . . .
to adequately . . . protect the child[ren]” (§ 300, subd. (b)(1)).
B. Subsequent interviews
In subsequent interviews with the Department, father
denied putting mother in a chokehold at all and opined that
mother was just “exaggerat[ing]” about having trouble breathing.
Also in subsequent interviews with the Department, both mother
and Joseph minimized father’s conduct. While mother told the
police who responded on August 17 that father put her in a
chokehold and “squeezed,” and initially told the Department that
father “wrapped his arm around her neck” from behind and had a
“temper” that needed to be controlled, mother later said that the
August 17 incident was “a misunderstanding” and an “isolated
incident,” that father never held her to suffocate her, and that
father had no anger issues whatsoever. And while Joseph
initially told the Department that father had his “arm wrapped
around . . . mother’s neck” and that his parents had argued
before, Joseph later reported that father’s hands were wrapped
around his mother’s chest, denied his prior statement that
mother cried out that she could not breathe, and denied any prior
verbal arguments between his parents.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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C. Jurisdictional and dispositional rulings
At the jurisdictional and dispositional hearing held on
January 22, 2021, father took the stand and testified that he
never put mother in a chokehold, that he put his “arms around
her” and they simply “tugg[ed] back and forth,” and that the root
of the altercation was mother’s “higher” stress levels from having
to work at home during COVID. Father nevertheless testified his
conduct in “tugging” at mother was “inappropriate.” After
entertaining argument, the juvenile court dismissed the
allegation under subdivision (a) but sustained the identical
allegation under (b)(1). The court observed that mother, father
and Joseph were “walking things back a bit” (that is, changing
their stories to minimize the seriousness of the incident and the
parents’ prior history). The court went on to note that father
seemed to be “remorseful” about the August 2020 incident, but
found that “the pressure” that precipitated the incident—namely,
mother working from home on top of father’s and mother’s
turbulent relationship—“continues to exist” and hence presented
“an ongoing risk” that warranted the exercise of jurisdiction
under subdivision (b)(1) to ensure that that risk is “addressed by
both of the parents.” The court ordered the children removed
from father’s custody and placed with mother, with father to have
monitored visitation. The court also ordered both parents to
participate in conjoint counseling and individual counseling to
address domestic violence issues.
D. Father’s appeal
Father filed this timely appeal.
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E. Postappeal ruling
On April 29, 2021, the trial court vacated its earlier
removal order.2
DISCUSSION
In this appeal, father argues that the juvenile court erred
in (1) asserting dependency jurisdiction over his sons, (2)
removing the sons from his custody, and (3) ordering that his
visitation during the period of removal be monitored. Because
the juvenile court vacated its removal order and has allowed
father to resume living with mother and his sons, father’s second
and third challenges are now moot. (E.g., In re Raymond G.
(1991) 230 Cal.App.3d 964, 967.)3 In a supplemental letter we
invited, father argues that the second and third challenges are
not moot because reaching the merits of his challenges might
“deter the Department” from “overreach[ing]” in future cases and
2 We can and do take judicial notice of the minute order
reflecting this action by the juvenile court. (Evid. Code, §§ 452,
subd. (c), 459.)
3 It is not entirely clear whether mother’s failure to appeal
creates a justiciability issue, given that the juvenile court’s
jurisdiction finding rests on mother’s unassailed failure to protect
the children from father’s conduct as well as father’s conduct. On
the one hand, mother did not appeal (In re Drake M. (2012) 211
Cal.App.4th 754, 762); on the other hand, father’s appeal asks us
to find that he did not engage in conduct warranting the exercise
of jurisdiction—and if he is right, there is nothing from which
mother failed to protect the children. We need not resolve this
uncertainty, however, because the success of father’s appeal
dictates whether he is regarded as an “offending” or
“nonoffending” parent in the future, and this consequence is
sufficient to prevent the appeal from being moot. (In re D.C.
(2011) 195 Cal.App.4th 1010, 1015.)
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because father might be prejudiced by the removal order in the
future. How the Department might act differently in future,
unrelated cases does not make this case any less moot; and the
prejudice father might face in future cases stems from the
juvenile court’s exertion of dependency jurisdiction, not an order
of removal that the court later vacated.
We therefore confine our analysis to the sole challenge
properly before us—that is, father’s challenge to the juvenile
court’s jurisdictional finding. Among other grounds, a juvenile
court may exert dependency jurisdiction over a child 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 the failure
or inability of his or her parent . . . to adequately supervise or
protect the child.” (§ 300, subd. (b)(1).) Exposing a child to
domestic violence can constitute a failure to protect a child from
the risk of serious physical injury under subdivision (b)(1) of
section 300. (In re Heather A. (1996) 52 Cal.App.4th 183, 194; In
re R.C. (2012) 210 Cal.App.4th 930, 941.) Because dependency
jurisdiction turns on the risk to the child “‘“at the time of the
[jurisdictional] hearing”’” (In re M.M. (2015) 240 Cal.App.4th 703,
719 (M.M.)), the propriety of jurisdiction due to a child’s exposure
to domestic violence under subdivision (b) of section 300 turns on
whether “the violence is ongoing or likely to continue.” (In re
Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.); In re M.W.
(2015) 238 Cal.App.4th 1444, 1453-1454.) We review the juvenile
court’s factual findings regarding risk, like all of its factual
findings, for substantial evidence. (M.M., at pp. 719-720.) This
means we review the evidence in the light most favorable to the
juvenile court’s findings. (In re Kadence P. (2015) 241
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Cal.App.4th 1376, 1384, superseded by statute on other grounds
as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.)
Substantial evidence supports the juvenile court’s finding
that Joseph and Jayden, as of the date of the jurisdictional
hearing, face a “substantial risk” of “serious physical harm”
because substantial evidence supports the court’s finding that the
domestic violence between mother and father “is ongoing or likely
to continue.” (Daisy H., supra, 192 Cal.App.4th at p. 717.)
Viewing the record in the light most favorable to the juvenile
court’s finding, the court had before it evidence of the serious and
potentially life-threatening act of physical violence between
mother and father in August 2020—namely, father placed mother
in a chokehold that prevented her from breathing and caused her
to fear for her life. What is more, what stopped father from
squeezing mother’s neck was not mother’s pleas for him to stop
but rather the fortuity of Joseph’s intervention by putting himself
right in the middle of father’s violent attack. Father’s violent
attack in August 2020 was also the latest chapter in a longer
story of verbal arguments between the parents as well as
between father and Joseph that were, at least in part, the
product of father’s inability to “control” his “temper.” The
tensions that caused father’s unaddressed anger issues to explode
into physical violence in the presence of at least one of the
children in August 2020—namely, mother working from home
and father’s adoption of a dog mother did not want—were also
still at play at the time of the jurisdictional hearing. Father also
consistently denied ever putting mother in a chokehold (despite
photographic evidence and mother’s and Joseph’s
contemporaneous reports to the contrary), and he had yet to
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attend any counseling to address his anger or domestic violence
issues (which he blamed on cost and backlog due to COVID).
In situations where there is a “single episode” of physical
violence between parents, there may still be substantial evidence
of risk to a child depending upon “[t]he nature and
circumstances” of the incident, “the parent’s current
understanding of and attitude toward the past conduct that
endangered [the] child,” and the “other steps taken[] by the
parent to address the problematic conduct in the interim.” (In re
John M. (2013) 217 Cal.App.4th 410, 418-419.) These
considerations reinforce the propriety of the juvenile court’s
finding in this case: The incident in this case was life-
threatening; father cast much of the blame for the incident on
mother’s “heightened” “stress” from working from home; and
father took no interim steps to address his anger issues. Instead,
father minimized his conduct, and both mother and Joseph
thereafter mimicked that minimization. Minimization and denial
of conduct are themselves indicia of continued risk. (In re
Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [“denial is a
factor often relevant to determining whether persons are likely to
modify their behavior in the future without court supervision”].)
Father resists this conclusion with what boil down to three
arguments. First, father argues that the August 2020 incident
was an “isolated incident” that was the product of the “arguments
and conflicts [that] are a natural byproduct” of “marriage and
parenthood” during a time of heightened stress occasioned by the
pandemic. The involvement of the juvenile court, he continues, is
unnecessary and inappropriate in such a situation, particularly
with children no longer of tender years. Because, as explained
above, substantial evidence supports the juvenile court’s finding
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that the tensions sparking violence for the first time in August
2020 continued to exist in January 2021, father is effectively
asking us to view the evidence differently. However, reweighing
evidence is beyond our purview. (E.g., People v. Brown (2021) 59
Cal.4th 86, 106 [“‘[w]e do not reweigh evidence’”].) Second, father
points to his testimony admitting that his conduct was
“inappropriate.” Father so testified, but did so in the context of
minimizing what actually happened, laying the blame for the
heightened tensions at mother’s feet, and affirming that he had
not obtained any counseling to address the issue. In this context,
father’s remorse does not eliminate the substantial risk of harm
to the children. Lastly, father argues that both children want
father to be back in the home. Even though this is what both
children said during later interviews with the Department, the
wishes of the children do not override the juvenile court’s
assessment of the risk of harm they face.
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DISPOSITION
The order asserting dependency jurisdiction over the
children is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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