Filed 11/12/21 In re Elian V. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ELIAN V. et al., a Person B308114
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20CCJP04112)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ELEANA V.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Jana M. Seng, Judge. Reversed.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Eleana M. (Mother) appeals from the juvenile court’s
jurisdiction finding, disposition order, and order terminating
jurisdiction and entering a juvenile custody order. Mother
contends there is not substantial evidence to support the
jurisdiction finding under Welfare and Institutions Code 1
section 300, subdivision (b)(1), that Mother endangered seven-
year-old Elian V.’s physical health and safety and placed him at
substantial risk of physical harm by accusing Francisco V.
(Father) and his wife of abuse, coaching Elian to make false
allegations, and subjecting Elian to unnecessary interviews and
physical exams. We agree and reverse the jurisdiction finding
and all subsequent orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prior Dependency Case and Custody Orders
On December 3, 2013 the juvenile court declared then-four-
month-old Elian a dependent of the court under section 300,
subdivision (b)(1), based on the sustained allegations that on
November 10, 2013 Mother attempted to strike Father with a
machete and had a history of substance abuse, including
1 Further statutory references are to the Welfare and
Institutions Code.
2
methamphetamine, cocaine, marijuana, and alcohol, which
rendered her incapable of providing regular care to Elian.
Further, on October 31, 2013 Mother was under the influence of
marijuana while caring for Elian. On February 17, 2015 the
juvenile court terminated jurisdiction and entered a juvenile
custody order granting Mother and Father joint legal custody
with Father having sole physical custody and Mother having
monitored visitation.2
B. The Current Referrals and Investigation
On February 12, 2018 the Los Angeles County Department
of Children and Family Services (Department) received a referral
alleging Elian’s stepmother Jessica V. kissed and played with
then-four-year-old Elian’s penis when he got out of the shower.
Jessica also allegedly slapped Elian on his back. The allegations
were determined to be unfounded after Elian stated Mother told
him to lie and recorded his lies.3
2 On July 2, 2018 the family court issued a judgment of
dissolution granting the parents joint legal custody, with Father
having primary physical custody. The court awarded Mother
overnight visits monitored by the maternal grandmother on
Sundays and Wednesdays and unsupervised visits on Sundays
during the day and Wednesdays in the evening.
3 A November 2016 referral alleged Father, paternal
grandmother, and Jessica physically abused Elian; the
Department determined the allegations were unfounded. The
Department also received five referrals in 2018 alleging Jessica
physically abused Elian. The Department determined the
allegations in two of the referrals were inconclusive because
Elian made conflicting statements. Elian initially said Jessica
hit him on the shoulder, leg, chest, and back. However, Elian
3
On February 6, 2020 the Department received another
referral alleging then-six-year-old Elian disclosed Jessica touched
his penis “all the time.” Elian initially told police officers that
Jessica touched him 20 times over his clothing when he was three
to four years old. During subsequent forensic exams, Elian
reported Mother told him to say that Jessica touched his penis so
he and Mother could spend more time together. Elian denied
anyone inappropriately touched him. The social worker
determined the allegations of sexual abuse by Jessica and
emotional abuse by Mother were inconclusive.
On July 15, 2020 the Department received another referral
alleging Jessica physically and sexually abused then-seven-year-
old Elian. During a medical exam, Elian told the doctor Jessica
touched and kissed his penis and hit his chest with her fists and
a belt. The doctor performed an examination of Elian and did not
observe any marks, bruises, or signs of trauma on Elian’s chest or
genitals. The doctor believed Mother possibly suffered from
mental health issues. Mother wanted Elian to be immediately
removed from Father’s home during the Department’s
investigation,4 and she threatened to sue the Department if
nothing was done to protect Elian.
later told a social worker that Jessica did not hit him and Mother
told him to lie. The Department determined the other referrals
were unfounded, inconclusive, or evaluated out (not referred for
investigation).
4 On July 27, 2020 Mother requested an emergency family
court hearing to obtain full physical custody of Elian. The family
court denied Mother’s petition based on insufficient evidence.
4
On July 20, 2020 a social worker separately interviewed
Mother and Elian. Elian said Jessica touched him and kissed his
penis 10 times when he was three to four years old. But Elian
later stated the abuse happened when he was six years old.
Elian also accused Jessica of hitting him with a belt and her fist
when he was four years old. Elian said he did not like living with
Father because “‘Jessica does bad stuff.’” Elian denied saying
everything was a lie in the prior investigation. During Mother’s
interview, the social worker observed Mother “did not present as
having any mental health issues and did not appear to be under
the influence of alcohol or drugs.” Mother was concerned about
Elian’s safety in Father’s home because Elian had previously
reported sexual and physical abuse by Jessica.
The social worker later interviewed Father and paternal
grandmother Coralia V. at their home. Coralia stated she stays
home to care for Elian while Father and Jessica are at work.
Because of Mother’s history of making sexual abuse allegations
against Jessica, Jessica was never alone with Elian. The family
shared one bedroom with Coralia and Elian sleeping in the
bottom bunk bed and Father and Jessica sharing a queen-size
bed. Coralia had no concerns that Jessica was sexually or
physically abusing Elian.
Father stated Mother had a history of substance abuse and
used drugs before and after Elian was born. Father also believed
Mother had mental health issues. Father reported Elian was
usually well-behaved and neither he nor Jessica used physical
discipline on Elian. However, Father was concerned that the
continued questioning of Elian about the allegations would
emotionally affect Elian. According to Father, Elian did not want
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to visit Mother, and Father sometimes had to bribe Elian to visit
her.
Jessica denied she physically or sexually abused Elian.
During the four years that Jessica had been in a relationship
with Father, she had not had a normal relationship with Elian
because Mother continually accused her of abuse and
manipulated Elian to tell lies. The last time Jessica cared for
Elian was when he was three years old.
The social worker also spoke with Detective Gentle Winter,
who had interviewed Elian in February 2020 and again in July
2020 regarding Elian’s allegations. Detective Winter was
concerned that if Mother continued to make false allegations, it
could possibly affect Elian’s mental stability.
On August 3, 2020 the juvenile court issued an order
removing Elian from Mother’s care.
C. The Dependency Petition and Detention
On August 5, 2020 the Department filed a dependency
petition on behalf of Elian under section 300, subdivision (b)(1).
The petition alleged Mother “subjected [Elian] to numerous
unnecessary interviews with social workers, law enforcement
officers and medical professionals as well as subjected the child to
physical exams, as a result of the mother’s allegations of abuse to
the child by the father. The mother coached the child to make
false allegations of abuse against the father and [Jessica]. The
detrimental and endangering situation created for [Elian] by the
mother endangers the child’s physical health and safety and
places the child at risk of serious physical harm, damage, and
danger.” At the August 10 detention hearing, the juvenile court
6
detained Elian from Mother and released him to Father’s home,
with monitored visitation for Mother.
D. The Jurisdiction and Disposition Report
The August 19, 2020 jurisdiction and disposition report
reported Mother had convictions in 2007 and 2015 for inflicting
corporal injury on a spouse or cohabitant and a 2014 conviction
for assault with a deadly weapon (the machete incident).
Maternal grandmother Inez O. told the dependency
investigator that Father was manipulating Elian and making
him lie. In addition, Father had been violent toward Inez’s
partner and threw a book at him.
Elian told the dependency investigator, “‘I am going to tell
you the great truth. My mom tells me to say those things.’”
Elian reported the maternal grandmother also told him to say
that Jessica touched and hit him. Elian stated he felt “‘[b]ad,
because those are things that have never happened here.’” Elian
added, “‘I feel like they are controlling me. They tell me what to
say and how to lie.’” Elian reported that when he told Mother he
did not want to lie, Mother got mad, cried “ugly” like a pig, and
told Elian that he loved her only a little. Elian said Father,
Coralia, and Jessica did not tell him to lie. Elian went to Father
and Coralia when he felt unsafe. Elian wanted to continue living
with Father with daytime visits once a month with Mother.
Father reported Mother and Inez had stood outside his
apartment building and insulted him, Coralia, and Jessica.
Jessica confirmed Mother and Inez harassed her in public by
calling her a rapist. Jessica wanted to develop a close
relationship with Elian, but she was scared because of Mother’s
false allegations against her. Coralia reported she used to help
7
with the custody exchange at the police station, but she stopped
because Mother verbally insulted her.
Father and Coralia stated Elian was well-behaved,
respectful, and caring. But Father believed Mother’s conduct was
affecting Elian. Elian told Father he did not like Wednesdays
and Sundays, which were the days he visited Mother. Mother
told Elian he did not speak proper English, causing Elian to be
insecure and to prefer to speak in Spanish. Mother also criticized
Elian for eating too slowly and too little, leading Elian to
research online how much food was appropriate for a child to eat.
A staff member from Elian’s school reported that Elian
arrived at school on time during Father’s custody days, but Elian
was late when Mother had custody, and Mother sometimes
smelled of marijuana. However, Elian was doing well
academically and was a sweet and respectful boy.
E. Last Minute Information for the Court
The October 2, 2020 last minute information for the court
reported that Mother still had not responded to the calls and
letters from the dependency investigator. Mother explained she
did not respond because she did not have a working phone.
Mother later agreed to a meeting on September 30 with her
lawyer present, but she did not show up to the meeting or return
the social worker’s subsequent calls.
Father stated Elian was doing well, and he had no concerns
about Elian’s behavior or well-being. However, Elian did not
want to visit Mother and appeared anxious about the visits,
constantly asking what day of the week it was. Elian would
return from visits appearing sad, tired, and not wanting to eat.
8
Elian started therapy on September 3, 2020. The intake
therapist reported Elian initially would look to Father for
prompting and reassurance, but during the interview Elian was
very open and comfortable expressing his feelings. Elian told the
therapist he was nervous, scared, and anxious that Mother would
be around where Elian lived. Elian described Mother as mean
because of her tone of voice and how quickly she got mad.
F. The Jurisdiction and Disposition Hearing
At the October 5, 2020 jurisdiction and disposition hearing,
Mother’s attorney argued the juvenile court should dismiss the
petition because the Department failed to prove under
section 300, subdivision (b)(1), that Elian was at substantial risk
of physical harm. Mother’s attorney asserted Elian’s feelings of
sadness and stress were emotions that fall under section 300,
subdivision (c), which was not pleaded as a basis for jurisdiction.
He continued, “Let’s say everything is true. If there’s an ongoing
custody dispute and my client is making continuing accusations
about the father and the father’s female companion and that
subjects the child to unnecessary interviews with social workers,
law enforcement, and medical professionals, where is the child at
risk of serious physical harm?”
The Department’s attorney argued the evidence supported
the allegation Elian was at substantial risk of serious physical
harm or illness, but it did not support jurisdiction under
section 300, subdivision (c), because “[t]he criteria by which the
court has to sustain a (c) is where there is severe anxiety,
withdrawals, depression, or aggressive behavior towards self or
others. Typically, these are children with history of
hospitalization, self-injurious behaviors.” She added, “We don’t
9
have that in this case. What we do have is . . . Mother’s
continuous behaviors . . . subjecting her child to the
exams . . . . They were physical exams that included a check of
the child’s private areas, full physical examination based on
Mother’s representations and Elian’s statements in being coached
by Mother to make allegations against Father.” She also
contended Mother’s behavior caused Elian to suffer physical
illness because Elian refused to eat and had anxiety and stress.
The juvenile court sustained the allegations under
section 300, subdivision (b)(1), explaining, “The minor’s therapist
reported that the minor was feeling nervous, scared, and anxious.
This is corroborated by the minor’s own statements to the social
worker, the observations and statements by . . . Father . . . and
the observations and statements by the paternal grandmother.
[¶] The court does find that Mother’s behavior or acts of
repeatedly subjecting the minor to numerous interviews by the
social worker, law enforcement and medical professionals, does
place this minor at substantial risk of harm. The emotional and
mental harm that the minor indicated has manifested and
resulted in the physical illness, which is the nexus of the
substantial risk of harm to the child, indicated by the
Department as the minor having appeared sad, tired, and would
not eat or manifestations of the harm that the mother has placed
the minor in. The court does find there is a current risk of harm.
[¶] Mother does not appear to have resolved the issues that have
brought the matter before the court, refusing to cooperate with
the Department, not subjecting herself to interviews, no progress
in any programs or services. The court does find that the
Department has met its burden by a preponderance of the
evidence.”
10
The juvenile court declared Elian a dependent of the court,
removed him from Mother’s physical custody, and placed him
with Father. The court found it would be in Elian’s best interest
to terminate jurisdiction with a juvenile custody order granting
Father sole legal and physical custody of Elian with monitored
visitation for Mother. The court stated it would terminate
jurisdiction upon receipt of the juvenile custody order.
Mother timely appealed from the October 6, 2020
jurisdiction finding and disposition order.
G. Subsequent Orders
At the October 16, 2020 hearing, the juvenile court
terminated jurisdiction and signed and entered a juvenile custody
order awarding Father sole legal and physical custody of Elian.
The court granted Mother monitored visits on Wednesdays after
school until 8 p.m. and Sundays from 8 a.m. to 6 p.m. On
March 24, 2021 Mother filed a motion to augment the record to
include the October 16 order terminating jurisdiction and
entering the juvenile custody order. Mother also filed a motion to
construe her notice of appeal to be from both the October 5, 2020
jurisdiction findings and disposition order and the October 16,
2020 order terminating jurisdiction and entering a juvenile
custody order. We granted Mother’s motions.
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DISCUSSION
A. The Jurisdiction Finding Under Section 300, Subdivision
(b)(1), Is Not Supported by Substantial Evidence
1. Governing law and standard of review
“Section 300, subdivision (b)(1), authorizes a juvenile court
to exercise dependency jurisdiction over a child 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 . . . to adequately supervise or
protect the child, or . . . by the inability of the parent . . . to
provide regular care for the child due to the parent’s . . . mental
illness, developmental disability, or substance abuse.’” (In re
L.W. (2019) 32 Cal.App.5th 840, 848; accord, In re E.E. (2020)
49 Cal.App.5th 195, 205.) Section 300, subdivision (b)(1),
requires the Department to demonstrate three elements by a
preponderance of the evidence: (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 such harm or illness. (In re E.E., at p. 205; In
re Joaquin C. (2017) 15 Cal.App.5th 537, 561.)
“Although section 300 generally requires proof the child is
subject to the defined risk of harm at the time of the jurisdiction
hearing [citations], the court need not wait until a child is
seriously abused or injured to assume jurisdiction and take steps
necessary to protect the child [citation]. The court may consider
past events in deciding whether a child presently needs the
court’s protection.” (In re Christopher R. (2014) 225 Cal.App.4th
1210, 1215-1216; accord, In re J.M. (2019) 40 Cal.App.5th 913,
921.)
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“‘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; accord, In re R.T. (2017) 3 Cal.5th
622, 633; In re D.B. (2018) 26 Cal.App.5th 320, 328.)
“Substantial evidence is not synonymous with any evidence.
[Citation.] To be substantial, the evidence must be of ponderable
legal significance and must be reasonable in nature, credible, and
of solid value.” (In re M.S. (2019) 41 Cal.App.5th 568, 580;
accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1046.) “The
appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the findings or orders.”
(In re E.E., supra, 49 Cal.App.5th at p. 206; accord, In re D.B., at
pp. 328-329.)
2. The jurisdiction finding is not supported by
substantial evidence
“‘“Before courts and agencies can exert jurisdiction under
section 300, subdivision (b), there must be evidence indicating
that the child is exposed to a substantial risk of serious physical
harm or illness.’’” (In re Jesus M. (2015) 235 Cal.App.4th 104,
111 [evidence that children suffered emotional distress from
13
father’s harassment of mother in violation of restraining order
and his denigration of mother to children did not support
jurisdiction finding under § 300, subd. (b)(1)]; accord, In re
Israel T. (2018) 30 Cal.App.5th 47, 52 [reversing jurisdiction
finding under § 300, subd. (b)(1), where juvenile court struck
language in dependency petition alleging children were at
substantial risk of serious physical harm from small plastic bags
found in home with trace amounts of methamphetamine]; In re
Janet T. (2001) 93 Cal.App.4th 377, 389-391 [reversing
jurisdiction finding under § 300, subd. (b)(1), based on mother’s
failure to ensure children attended school and mother’s mental
and emotional problems because there was no evidence children
were at substantial risk of serious physical injury or illness].)
The juvenile court based its jurisdiction finding under
section 300, subdivision (b)(1), on the fact Elian’s intake therapist
reported Elian was feeling nervous, scared, and anxious, and
Father reported Elian appeared sad, tired, and not willing to eat
after visits with Mother due to her continuous coaching of Elian
to make false allegations against Jessica.5 Although Mother’s
conduct was reprehensible, there was not substantial evidence
the conduct exposed Elian to a substantial risk of serious physical
harm or illness. (§ 300, subd. (b)(1); In re Jesus M., supra, 235
Cal.App.4th at p. 111.) Elian was described by Father, Coralia,
5 The Department argues on appeal that Mother’s conduct
placed Elian at substantial risk of suffering serious physical
harm by subjecting him to repeated physical exams, including of
his anal and genital areas. But there is no evidence in the record
that Elian suffered any physical harm from the physical exams,
nor does the Department point to any.
14
and the school staff member as a well-behaved, caring, and
respectful boy who was doing well academically. Although there
is evidence Elian suffered emotional distress as a result of
Mother’s conduct, “[s]ection 300, subdivision (b), does not provide
for jurisdiction based on ‘“emotional harm.”’’’ (In re Jesus M., at
p. 112; accord, In re Daisy H. (2011) 192 Cal.App.4th 713, 718
[reversing jurisdiction finding under § 300, subd. (b)(1), where
parents’ prior domestic violence did not place children at current
risk of substantial physical harm, and children were only at risk
of emotional harm from father calling mother derogatory
names].) Accordingly, substantial evidence does not support the
juvenile court’s jurisdiction finding under section 300,
subdivision (b)(1).6
In the absence of jurisdiction, the juvenile court had no
authority to issue the disposition order or the juvenile custody
order. (In re Jesus M., supra, 235 Cal.App.4th at p. 114; In re
R.M. (2009) 175 Cal.App.4th 986, 991.) Accordingly, we reverse
the jurisdiction finding and all subsequent orders.
6 The dependency petition does not allege jurisdiction under
section 300, subdivision (c), and as discussed, at the jurisdiction
and disposition hearing the Department’s counsel conceded the
evidence did not support jurisdiction under this subdivision.
15
DISPOSITION
The October 5, 2020 jurisdiction finding and disposition
order and the October 16, 2020 order terminating jurisdiction
and entering the juvenile custody order are reversed. The
juvenile court is directed to dismiss the dependency petition.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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