Filed 6/3/21 In re C.B. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
In re C.B., a Person Coming Under B308236
the Juvenile Court Law. (Consolidated with B309531)
(Los Angeles County
Super. Ct. No. 20CCJP01010A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.B.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County. Stephen C. Marpet, Judge Pro Tempore.
Affirmed in part and remanded with directions.
Lisa A. Raneri, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
******
After a two-year-old’s father struck his mother so hard she
fell to the ground, the juvenile court exerted dependency
jurisdiction over the child, removed him from father’s custody,
and terminated its jurisdiction with an “exit order” granting
mother full legal and physical custody of the child. On appeal,
father challenges one of the two bases for dependency jurisdiction
and asks that the exit order be modified to conform to the
juvenile court’s oral pronouncement. Although father’s second
argument has merit, his first does not. We accordingly affirm the
juvenile court’s rulings but remand for the court to modify the
exit order.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
L.L. (mother) and C.P.B. (father) are the unmarried
parents of C.B., who was born in September 2018.
On January 14, 2020, father and mother got into a verbal
argument in their residence. During that argument and in prior
arguments, father had “tend[ed] to directly and indirectly
threaten” mother. When mother decided to leave with C.B.,
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father followed her outside to her car. After mother finished
buckling C.B. into his infant car seat, father struck mother with
his hand so hard that she fell to the ground, felt dizzy and had an
aching jaw for two days. Fearing that the violence might
escalate, mother and C.B. left and spent the night in a hotel.
The next day, father picked up C.B. from daycare. When
daycare employees expressed concern that he—and not mother—
was picking up C.B., he threatened to run them over with his car.
They stepped back, and father drove away.
Mother called the police, and at that time reported father’s
violence from the day before. She also informed the police that
there had been two prior domestic violence incidents with father.
Although father returned C.B. to the daycare facility the
next morning, mother decided to move with C.B. to her mother’s
house. A few days later, mother allowed father to take C.B. for a
few hours. But father took C.B. to New York without telling
mother. Father thereafter allowed mother to “Facetime” with
C.B., and let her retrieve C.B. approximately 10 days later.
Father was interviewed by New York’s child services department,
who reported that father would “throw fits” and “get very upset
and then within seconds . . . apologize.”
Mother thereafter moved to an undisclosed location, and
father began a campaign of harassing mother, mother’s pastor,
and the maternal grandmother to try to learn where mother and
C.B. were living. Mother was concerned that father was “acting
very out of control.” On at least one occasion, father told mother,
“If I can’t have [C.B.], then you won’t have him” either.
II. Procedural Background
On February 20, 2020, the Los Angeles County Department
of Children and Family Services (the Department) filed a petition
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asking the trial court to exert dependency jurisdiction over C.B.
due to the parents’ “history of engaging in violent altercation[s] in
the presence of the child,” which included the January 14
incident as well as “prior occasions” and which placed C.B. “at
risk of serious physical harm, danger and damage.” Based on the
same allegations, the petition alleged that jurisdiction was
appropriate on two grounds: (1) this conduct created a
“substantial risk that the child will suffer[] serious physical harm
inflicted nonaccidentally upon the child by the child’s parent”
(under subdivision (a) of Welfare and Institutions Code section
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300) and (2) this conduct amounted to a “failure or inability of
[the parents] to adequately . . . protect the child” that placed C.B.
“at substantial risk of serious physical harm” (under subdivision
(b)(1) of section 300).
Mother sought and obtained a one-year restraining order
requiring father to stay away from her and C.B. except during
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supervised visits.
In subsequent interviews, mother told the Department that
the January 14 incident had been the only domestic violence
incident with father. Father told the Department that the
January 14 incident never happened and that he had never
assaulted mother. Father instead branded mother as “the devil,”
and made inconsistent statements that she assaulted him and
that she never assaulted him.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Father appealed the restraining order. (In re C.B., No.
B306832.) However, father’s appellate counsel filed an In re
Phoenix H. brief, and we subsequently dismissed that appeal.
4
The juvenile court held the jurisdictional and disposition
hearing on October 9, 2020. At the hearing, the court sustained
jurisdiction on both grounds, explaining that the January 14
incident was “part of a whole history of disputes between the
parents”; that this history included father’s threats to mother as
well as taking the child to New York without mother’s knowledge
or consent; and that “all of these things are part of” father’s
attempt to “control” mother and are hence a type of “domestic
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violence.” The court removed C.B. from father and placed him
with mother, but granted father the right to have monitored
visits. The court then terminated jurisdiction and ordered that
an “exit order” be prepared that (1) awarded mother sole physical
and legal custody of C.B., and (2) required father to complete “a
52-week [domestic violence] class for perpetrators,” to attend
parenting classes, and to participate in individual counseling.
On October 15, 2020, father filed a timely notice of appeal.
On October 16, 2020, father asked the juvenile court to
rehear its jurisdictional ruling. That request was denied on
4
October 22, 2020.
On October 19, 2020, the juvenile court signed a written
exit order that included two requirements not in its oral ruling—
namely, that (1) father’s individual counseling be with “a licensed
therapist,” and (2) father participate in “mental health counseling
to include . . . a psychological assessment [and] psychiatric
evaluation, and [to] take all prescribed medications.”
3 The court struck the language from the petition that had
alleged that mother had struck father.
4 Father filed a notice of appeal from this denial. (In re C.B.,
No. B309531.) We consolidated the two extant appeals.
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DISCUSSION
On appeal, father raises two arguments: (1) the juvenile
court’s order sustaining dependency jurisdiction under
subdivision (a) of section 300 is not supported by substantial
evidence, and (2) the juvenile court’s exit order must be amended
to delete the requirements not set forth in the court’s oral
pronouncement. The Department effectively concedes father is
entitled to relief on his second argument, and we agree: A court’s
oral pronouncements generally control over its written orders (In
re A.C. (2011) 197 Cal.App.4th 796, 799-800), and here the exit
order is different from the court’s oral pronouncements. We
accordingly order the court to amend the exit order. This leaves
us with father’s challenge to the court’s jurisdictional ruling.
Among other grounds, a juvenile court may exert
dependency jurisdiction over a child if (1) “[t]he child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm inflicted nonaccidentally upon the child by
the child’s parent” (§ 300, subd. (a)), or (2) “[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 risk the nonaccidental infliction of serious
physical injury under subdivision (a) of section 300 (In re
Giovanni F. (2010) 184 Cal.App.4th 594, 598-599 (Giovanni F.)),
and can constitute a failure to protect a child from the risk of
such injury under subdivision (b) (In re Heather A. (1996) 52
Cal.App.4th 183, 194). 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
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propriety of jurisdiction due to a child’s exposure to domestic
violence under subdivisions (a) and (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 view the evidence in the light most favorable to the
juvenile court’s findings. (In re Kadence P. (2015) 241
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.)
I. Justiciability
A single basis for dependency jurisdiction is enough to
support the exertion of jurisdiction over a child. (In re A.F. (2016)
3 Cal.App.5th 283, 289.) As a result, father's challenge to only
one of the two bases for jurisdiction over C.B. is generally not
justiciable because the juvenile court's jurisdiction will remain
valid by virtue of the unchallenged basis no matter what we
decide on this appeal regarding the challenged basis. (In re
Drake M. (2012) 211 Cal.App.4th 754, 762; In re I.A. (2011) 201
Cal.App.4th 1484, 1492.) This is particularly true where, as here,
the factual allegations underlying both bases for jurisdiction are
identical. Father responds that there is a “sharp distinction”
between subdivisions (a) and (b)(1) of section 300, and that he
will suffer a greater stigma in the future by virtue of being found
under subdivision (a) to have put C.B. at risk of “nonaccidentally”
inflicting harm, but the cases he cites do not support that
proposition. Moreover, the stigma father might face in the future
would appear to arise from his conduct in intentionally
threatening and striking mother, and this conduct—and hence
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the stigma—is the same whether dependency jurisdiction is
sustained under both subdivisions (a) and (b)(1), or instead just
subdivision (b)(1); father’s assertion of greater stigma is, in our
view, too speculative to give rise to a justiciable issue. (See In re
I.A., at pp. 1494-1495.) For sake of completeness, however, we
will nevertheless reach the merits of father’s jurisdictional
challenge.
II. Merits
Substantial evidence supports the juvenile court’s
jurisdictional finding under subdivision (a). As noted above, a
child’s exposure to domestic violence can risk the nonaccidental
infliction of serious physical injury (Giovanni F., supra, 184
Cal.App.4th at pp. 598-599), and father on appeal does not
dispute that he struck mother during the January 14 incident.
Thus, the propriety of jurisdiction under subdivision (a) in this
case comes down to whether substantial evidence supports the
juvenile court’s finding that “the violence is ongoing or likely to
continue.” (Daisy H., supra, 192 Cal.App.4th at p. 717.)
Substantial evidence supports the juvenile court’s finding
that domestic violence between father and mother is “ongoing or
likely to continue.” To begin, father effectively concedes as much
by not challenging the court’s jurisdictional finding under
subdivision (b)(1): If there is evidence of continued violence
sufficient to support jurisdiction under subdivision (b)(1), the
same is true for subdivision (a), which requires the same
substantial risk of serious physical harm and thus the same
showing that the domestic violence is “ongoing or likely to
continue.” Further, the evidence shows as much. Mother told the
police that the January 14 incident was the parents’ third
domestic violence incident, not their first. Although mother
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repeatedly disclaimed any prior incidents in subsequent
interviews with Department personnel, it is for the juvenile court
to decide which of mother’s statements to believe—we cannot
gainsay its credibility findings. (E.g., In re Alexandria P. (2014)
228 Cal.App.4th 1322, 1352.) Father asserts that the record
contains no “detail” about the prior incidents, including whether
he and mother were in proximity to C.B., but what matters is
whether the risk of domestic violence is “ongoing or likely to
continue”—and that risk is a function of how mother and father
interact, regardless of whether C.B. happened to be nearby when
those prior interactions resulted in domestic violence. Mother’s
admission to the two prior incidents therefore contains sufficient
detail to assess future risk. However, even if we accept mother’s
later statements that the January 14 incident was the only
incident that boiled over into a physical altercation, there is
substantial evidence that the proverbial water had been just
under a boil prior to the incident and remains so today: Father
had “tend[ed] to directly and indirectly threaten” mother prior to
the incident; he threatened to run down daycare workers in his
car if they did not allow him to leave with C.B. the day after the
incident; he repeatedly called mother’s contacts to try to learn
mother’s whereabouts after the incident; and he continues to
refer to mother as “the devil.” What is more, father refuses to
acknowledge that he physically assaulted mother during the
January 14 incident; minimization and denial are evidence 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”].)
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Father effectively responds that his single incident of
physical violence with mother is insufficient to support a finding
of jurisdiction under subdivision (a), making this case more akin
to Daisy H., supra, 192 Cal.App.4th 713, and involves far less
egregious violence than the violence found sufficient to uphold
jurisdiction in Giovanni F., supra, 184 Cal.App.4th at 594, in In
re M.M., supra, 240 Cal.App.4th 703, and in In re Nathan E.
(2021) 61 Cal.App.5th 114 (Nathan E.). Contrary to what
defendant implies, however, Daisy H., Giovanni F., M.M., and
Nathan E. are not dispositive here. Daisy H. involved a single
incident that occurred two to seven years prior to the filing of the
dependency petition (Daisy H., at p. 717); here, the petition was
filed five weeks after the January 14 incident and father
continues to call mother “the devil,” to make efforts to find her,
and to deny the incident occurred at all. And while Giovanni F.
involved three years of violence that culminated in a punching
and choking incident in a moving vehicle (Giovanni F., at p. 597),
M.M. involved a severe incident of violence between the parents
while the child was at their feet that capped off a long history of
such violence (M.M., at pp. 706, 720), and Nathan E. involved an
incident of violence between the parents with a child in the room
that was a culmination of several prior incidents (Nathan E., at
pp. 117-120), Giovanni, M.M., and Nathan E. did not purport to
set the floor for jurisdiction under subdivision (a) of section 300.
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DISPOSITION
The juvenile court is ordered to modify the “exit order” to
delete the references to (1) father’s individual counseling needing
to be with “a licensed therapist,” and (2) father’s participation in
“mental health counseling to include . . . a psychological
assessment [and] psychiatric evaluation, and [to] take all
prescribed medications.” Except as modified, the juvenile court’s
findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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