In re Wendy P.

 

 

 

 

 

Filed 1/16/14  In re Wendy P.
CA2/3

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE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 not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION THREE

 

 
>

In re WENDY P. et al., Persons Coming Under the Juvenile Court Law.	B247859       (Los Angeles County       Super. Ct. No. CK97265)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   ANDRES P.,               Defendant and Appellant.

 

 

            APPEAL
from orders of the Superior Court of Los
Angeles County, Jacqueline Lewis, Commissioner.  Affirmed in part and dismissed in part.

            Lori
Siegel, under
appointment by the Court of Appeal, for Defendant and
Appellant.

            John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for
Plaintiff and Respondent.

>

            The
presumed father, Andres P., appeals from the juvenile court’s order assuming
jurisdiction over his children, Wendy P., Andrea P. and J.P., pursuant to
Welfare and Institutions Code section 300, subdivisions (b) and (j)href="#_ftn1" name="_ftnref1" title="">[1]
and from that portion of the  juvenile
court’s order removing the children
from his physical custody and granting only monitored visits.  We affirm the juvenile court’s order assuming
jurisdiction and dismiss as moot that portion of Andres P.’s appeal challenging
the order removing the children from his custody and requiring that his visits
be monitored.

FACTUAL AND PROCEDURAL BACKGROUND

            On
January 9, 2013, the Department of href="http://www.sandiegohealthdirectory.com/">Children and Family Services
(DCFS or the Department) filed a juvenile dependency
petition in the Los Angeles Superior
Court pursuant to section 300, subdivisions (b) and (j) with regard to 14-year-old
Wendy P., 10-year-old Andrea P., and 8-year-old J.P.  The petition, which indicated the children had
been detained on January 6, 2013, alleged with regard to subdivision (b) that
they “ha[d] suffered, or there [was] a substantial risk that [they would]
suffer, serious physical harm or illness” as “a result of the failure or
inability of [their parents] . . . to supervise or protect [them] adequately,” or
as “a result of the willful or negligent failure of [their] parent[s] . . . to
supervise or protect [them] adequately from the conduct of the custodian with
whom [they had] been left” or “by the inability of the parent[s] . . . to
provide regular care for the [children] due to the parent[s’] . . . mental
illness, developmental disability, or substance abuse.”href="#_ftn2" name="_ftnref2" title="">>[2]  With regard to subdivision (j), the petition
indicated Wendy P.’s and Andrea P.’s sibling, J.P., had “been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there [was]
a substantial risk that [Wendy P. and Andrea P. would] be abused or neglected,
as defined in those subdivisions.”

            In
support of the allegations made pursuant to section 300, subdivisions (b) and (j),
it was asserted that on January 6, 2013, the children’s parents had placed “[J.P.]
in a detrimental and endangering situation in that the father drove a vehicle
with the child and the mother as passengers, while the father was under the
influence of alcohol and cocaine.”  In
addition, J.P. had not been in a “booster seat” and had not been wearing a seat
belt.href="#_ftn3" name="_ftnref3" title="">[3]  The vehicle being driven by Andres P. had
then been struck by another vehicle and the accident resulted in J.P., who had
been thrown from the car, sustaining critical brain trauma, over 20 fractures
to his skull, “intracerebral bleeding to [his] brain[,] bruising and swelling
to [his] face, eyes and body, and a fracture to [his] right clavicle.”  On the night of the accident, Andres P. was
arrested for child endangerment and driving under the influence of alcohol and
drugs.

            In
a detention report prepared by a DCFS social worker on January 9, 2013 in
preparation for a hearing to be held that day, it was indicated J.P. was in the
pediatric intensive care unit at the Los Angeles County USC Medical Center and the
attending physician had indicated the child had been “resuscitated upon
arriving [at] the Emergency Room and [was] in very critical condition.”  When the social worker squeezed J.P.’s hand,
he was unresponsive.

Although he was
found not to have caused the traffic accident, as he had been driving while
under the influence and had endangered the life of a child, Andres P. had been taken
into custody.  The arresting officer
reported that “the odor of alcohol was detected coming from [Andres P.’s]
person and he was observed to display symptoms associated with being under the
influence of alcohol.”  When questioned,
Andres P. stated he believed that when his car was hit by the oncoming
car, J.P. “flew out of the car.”  At the
time of the social worker’s report, Andres P. was being held at the Los Angeles
County USC Surgical Observation Unit.  It
appeared he had not suffered any significant injuries, but was being held for
observation.  Andres P. denied having had
an alcoholic beverage within several hours of the accident and indicated he had
used cocaine only once, on Friday, January 4, 2013.  However, test results indicated he had a blood
alcohol level of .136 and “positive toxicology for cocaine.”  Andres P. was later transferred to the Los
Angeles Police Department’s Central Division Station Jail under a “no bail”
designation.  An officer at the station
“confirmed that he smelled alcohol coming from [Andres P.’s] person and that [Andres
P.] appeared to be inebriated.”

            The
children’s mother, Catalina S., who had also sustained serious injuries during
the traffic accident including “a [four]-inch laceration to the top/center of
her head,” had  been hospitalized in the
intensive care unit of the Los
Angeles County USC Medical Center.  During an interview with the social worker,
Catalina S., who had “tested negative for alcohol and/or illicit drugs,” stated
she was “not sure of how the accident [had] occurred.”  She and Andres P. had just picked up J.P.
from the home of her brother, Margarito S. 
Andres P. was driving the car.  She,
Catalina S., was in the front passenger seat and J.P. was sitting in the rear
seat.href="#_ftn4" name="_ftnref4" title="">[4]  As Andres P. was getting ready to turn onto
the street where their home is located, a black vehicle traveling at a high
rate of speed hit their car.  The next
thing Catalina S. could remember was firemen “cutting the car with a large scissor-like
tool.”  After firefighters told Catalina
S. she had been involved in a traffic accident, she saw her son, J.P., lying on
the ground.  The next thing she could
remember was waking up at the hospital.

            Catalina
S., who indicated she “does not know how to drive,” stated she did not believe
Andres P. had been drunk on the night of the accident.  Although she had “argued with [Andres P.]
several times about drinking and driving,” on the evening of the accident she
had not observed Andres P. consume any alcohol and she denied having “smelled
alcohol on [Andres P.’s] person or that he appeared to be drunk.”  Catalina S. did not believe Andres P. was
“unable to control his alcohol consumption” and indicated he only “drinks on
occasion.”  Catalina S. stated that “if
she felt [Andres P. had been] too drunk to drive . . . , she would not have
allowed him to drive home.”  However, when
Catalina S. was informed that Andres P. had been found to have had not only
alcohol but cocaine in his blood, she “became enraged then cried out ‘Pendejo’
(fool).”  Although Catalina S. had never
observed Andres P. use cocaine, she had noticed that he had “lost a significant
amount of weight, that he [was] easily agitated and that his sexual appetite
ha[d] become very frequent and aggressive.”

            The
social worker interviewed Catalina S.’s brother, Margarito S.  Margarito S. denied having any knowledge
of Andres P. abusing alcohol or having ever been arrested for charges related
to alcohol, drugs or domestic violence. 
However, Margarito S. agreed that DCFS should intervene in the
matter, “then whispered under his breath that he had spoken to [Andres P.]
about his reckless ways[,] but [that Andres P.] never listene[d].”

            The
social worker spoke with Wendy P. and Andrea P., who, as their mother was in
the hospital and their father had been taken into custody, had been placed in
foster care.  Both girls appeared to be
“healthy and well-groomed.”  Both girls reported
doing well in school and denied that their parents abused alcohol or used
illicit drugs.  Neither child was
observed to have been suffering from abuse or neglect or showed symptoms
“associated with a developmental, medical and/or mental health issue.”

            After
conducting interviews with the pertinent parties and collecting relevant data,
the investigating social worker concluded “the safety of the children [J.P.],
Andrea and Wendy . . . [was] of concern.”  The social worker continued:  â€œThe substantiated original allegation of
Severe Neglect of the child [J.P.] by the father Andres [P.] is evidenced by
critical brain trauma the child sustained as the result of not being properly
restrained during a traffic accident in which [Andres P.] was found to be
[driving while] under the influence of alcohol and cocaine.  Further, [there is evidence in support of]
the . . . allegation of General Neglect . . . of . . . [J.P.] by the
mother[,] Catalina [S., who] fail[ed] to protect the child [J.P.] and allow[ed]
the father to [drive] the vehicle in which the child was not restrained in the
vehicle’s seatbelt or a booster chair when the father was clearly under the
influence of alcohol.”  The allegation
that J.P.’s siblings, Wendy P. and Andrea P., are “at Risk” is supported
by the “substantiated allegations of General and Severe Neglect of [J.P.]”  As DCFS determined the safety of the children
could not be ensured if they were returned to the custody of the parents, the
Department “respectfully recommended that the continued detention” of the children
remain in place.

            At
a hearing held on January 9, 2013, the juvenile
court addressed counsel for the Department and asked counsel to explain why
Wendy P. and Andrea P. could not, with appropriate services in place, be released
to their mother.  Counsel for the
Department responded that the Department was concerned “with the level of
neglect in this case in that[, while their eight-year-old son was in the car,
the] mother allowed [Andres P.] to drive his car while under the
influence, claiming that she didn’t realize he was under the influence.  [However,] [b]oth officers that arrived first
on [the] scene said that [Andres P.] and the car smelled of alcohol.  [In addition, J.P.] was not restrained in a
car seat or booster seat.  [¶]  So not just allowing the father to drive
under these conditions but allowing the car to be driven without [J.P.] being
restrained leads the Department to believe that mother[, Catalina S.,] was
neglectful in the situation and [was] partly responsible for the situation . .
. .”

            Counsel
for Wendy P. and Andrea P. indicated his “clients [wished] to go home.”  Counsel continued:  â€œAnd I believe . . . it is possible to put
services in place in the situation to allow the children to be released to their
mother[, Catalina S.]  I think that this
was a tragedy and that, whether [Catalina S.] knew [Andres P.] was drinking or
not at the time, I don’t believe that . . . there was blatant drunken driving .
. . .  [¶]  And I think services can be put into place .
. . to protect the children in this case. 
In fact, [Catalina S.] doesn’t even drive.  And so I don’t think that there’s a risk to
particularly the children in this case. 
I think that . . . the children could be released to the mother in this
situation.”  Counsel for Catalina S.
agreed with counsel for the children that, with the proper services put into
place, the children could be released to her.

            Counsel
for Andres P. also believed that Wendy P. and Andrea P. could safely be
released to their mother.  Counsel
indicated that Andres P. was “submitting [to] detention” that day.  After recognizing that “a very tragic
accident . . . occurred,” counsel requested that, “if [Andres P. was] released
from custody, that he have unmonitored visits with his children as long as [he
was] not driving them anywhere [and] as long as [he was] testing clean.”

            After
listening to the arguments, the juvenile court stated:  “I would not call this an accident.  I’ll stick with [counsel’s] characterization,
which is [it’s] just [a] plain . . . tragedy. 
Apparently, somebody agrees with me. 
[¶]  Today the Court finds a prima
facie case for detaining the children from their father, showing that they are
persons described by . . . [section] 300[,] subdivision[s] (b) and (j).  [¶] 
The Court finds that, pursuant to . . . [section] 319,
that continuance in the home of the father is contrary to the children’s
welfare and that a substantial danger exists to the physical health of the
children.  [¶]  There are no reasonable means to protect them
without removing them from their father’s physical custody.  [¶] 
The Court further finds that the Department made reasonable efforts to
prevent removal.  There are no services
available to prevent further detention from the father, but there are services
available to prevent further detention from the mother.”

            Over
the Department’s objection, the juvenile court ordered that the children be
released to their mother that day.  The
court further ordered that Catalina S. was to begin participation in “Alanon
immediately,” that when Andres P. was released his visits with the children were
to be monitored by someone other than Catalina S. and that there was no reason
for Andres P. “to be . . . at the home.”  With regard to Andres P.’s objection to Catalina
S. not being allowed to be the monitor during his visits, the juvenile court justified
its ruling by indicating that “she clearly doesn’t know when he’s under the
influence . . . , or she’s unwilling to do something about it.  [So] [w]hichever one of those is true, . . .
that can be put in place to make sure that the kids remain safe.  So if [the] father wants the kids to be home
with their mom, he better abide by that.”  The juvenile court then set the adjudication proceedings
for February
13, 2013.

            At
the hearing held on February 13, 2013, the juvenile court found that a
preponderance of the evidence supported the allegations made pursuant to
subdivisions (b) and (j) of section 300 and the court sustained the petition
with regard to those subdivisions.  When
Andres P.’s counsel argued that the Department had failed to show that the
children were at substantial risk of future harm “based on a single tragic
episode of . . . alleged parental misconduct,” the juvenile court responded
that Andres P.’s argument showed “that the kids continue to be at . . . risk
[due to his] lack of understanding that drug and alcohol use . . . and driving
do not mix.”  Further, the juvenile court
indicated it was “unreasonable to believe that, out of the blue, [Andres P.]
decided to try cocaine––he had never tried it before—and this tragic incident
happened within a day of that happening.”

            After
ordering that the children remain in the physical custody of Catalina S., the
juvenile court ordered that Andres P. attend “alcohol rehabilitation with
random testing and individual counseling.” 
As to the children, Wendy P. and Andrea P., the juvenile court ordered
that they attend individual counseling.  After
then ordering the Department to work with Catalina S. “on getting an I.E.P. for
[J.P.],” who was scheduled to be released from the hospital a few days after
the hearing, the juvenile court set the matter for a section 364 hearing to
determine, among other issues, whether its jurisdiction over the matter could
at that time be terminated.

            On
February 22,
2013, Andres P. filed a timely notice of
appeal from the juvenile court’s orders.

CONTENTIONS

            Andres P. contends there is
insufficient evidence to support the juvenile court’s assumption of
jurisdiction, removal of the children from his custody and order that all
visits with his children be monitored by someone other than Catalina S.

DISCUSSION

            1.  The assumption
of jurisdiction.

            At
a jurisdictional hearing, “ ‘proof by a preponderance of evidence, legally
admissible in the trial of civil cases must be adduced to support a finding
that the minor[s] [are] person[s] described by Section 300.’  (§ 355.)”  (In re
Sheila B. (1993) 19 Cal.App.4th 187, 198.)  “[T]he purpose of the provisions of this
chapter relating to dependent children 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 [the] children who
are at risk of that harm.”  (§ 300.2, italics added.)  “On appeal from an order making
jurisdictional findings, we must uphold the court’s findings unless, after
reviewing the entire record and resolving all conflicts in favor of the
respondent and drawing all reasonable inferences in support of the judgment, we
determine there is no substantial evidence to support the findings.  [Citation.] 
Substantial evidence is evidence that is reasonable, credible, and of
solid value.  [Citation.]”  (In re
Veronica G. (2007) 157 Cal.App.4th 179, 185.)  In addition, in reviewing a record, an
appellate court should defer to the lower court with regard to issues involving
the credibility of evidence and witnesses. 
(In re Tania S. (1992) 5
Cal.App.4th 728, 733-734; see also In re
Luke M. (2003) 107 Cal.App.4th 1412, 1427 [“[W]e must defer to the
[juvenile] court’s factual assessments. 
[Citation.]  ‘[W]e review a cold
record and, unlike a trial court, have no opportunity to observe the appearance
and demeanor of the witnesses.’ 
[Citation.]”].)

            Here,
Andres P. argues the juvenile court improperly determined there was a
substantial risk his children would suffer serious physical harm or illness as
a result of his failure or inability to supervise or adequately protect them
based on his neglect or abuse of J.P. during one, isolated incident.  He asserts driving under the influence of
alcohol on a single occasion, without more, is insufficient to warrant juvenile
court jurisdiction.  He contends there is
no evidence he “had a substance abuse problem, no evidence the misconduct was
likely to recur, and no evidence [J.P.p suffered any physical harm as a result
of [his, Andres P.’s,] conduct.”  In
making this argument, Andres P. relies on the court’s decision in >In re J.N. (2010) 181 Cal.App.4th 1010.

            In
In re J.N., the appellate court
reversed the juvenile court’s sustaining of a petition which alleged a single
episode during which the father, while under the influence of alcohol and with
his children in the car, became involved in an automobile accident.  (In re
J.N., supra, 181 Cal.App.4th at pp. 1014-1015.)  The appellate court in In re J.N. determined there was nothing in the record to show that
either parent had an ongoing substance abuse problem and, accordingly, there
was no showing that the risk of such behavior would recur.  (Id.
at pp. 1022-1023, 1026.)

            In
the present matter, there is evidence to support the juvenile court’s
determination Andres P. had an ongoing
problem with substance abuse and negligent behavior when dealing with his
children, particularly when driving with them in the car.  Although Andres P. asserted he did not have a
problem with alcohol, there is evidence the children’s mother, Catalina S., had
“argued with [Andres P.] several times about drinking and driving.”  In addition, although Andres P. indicated he
had not had an alcoholic beverage for several hours prior to driving, when
tested after the accident, his blood alcohol level was .136.  Similarly, Andres P. stated he had used
cocaine only once, two days before the accident.  However, toxicology tests indicated there was
still cocaine in his system after the accident and the children’s mother,
Catalina S., stated Andres P. had lost a significant amount of
weight, became easily agitated and that his sexual appetite had become frequent
and aggressive.  Then, when interviewed,
Catalina S.’s brother, the children’s uncle, indicated he believed DCFS should
intervene in the matter.  He stated he
had spoken to Andres P. about his “reckless ways,” but that Andres P. had not
listened.  Finally, Andres P. admitted
that J.P. had been sitting in the back seat of the car unrestrained by either a
seatbelt or “booster seat.”  As he
claimed he did not know that individuals riding in the back seat of a vehicle
were required to wear a seat belt, it is likely that Andres P. previously had
been negligent in failing to make certain his children were secure in seatbelts
or booster seats while he was driving with them in the car.href="#_ftn5" name="_ftnref5" title="">>[5]  This evidence substantially supports the
juvenile court’s finding that, not only had J.P. suffered severe injuries as a
result of Andres P.’s failure to adequately protect the child, J.P.’s sisters,
Wendy and Andrea, were at risk of also suffering from such substantial, willful
neglect.  Under these circumstances, the
juvenile court properly assumed jurisdiction over the children pursuant to
section 300, subdivisions (b) and (j).

            In
addition to the factual discrepancies, the holding relied on by Andres P.
in In re J.N., supra, 181
Cal.App.4th 1010 has been discredited.  Admittedly,
until recently it was the consensus that a court could not exercise dependency
jurisdiction under section 300, subdivision (b) if the evidence failed to
indicate a current >risk of harm.  (In re
J.N., at p. 1023, citing In re
Rocco M. (1991) 1 Cal.App.4th 814.) 
In In re Rocco M. the court
stated that “[w]hile evidence of past conduct may be probative of current
conditions, the question under section 300 is whether circumstances at the time
of the hearing subject the minor to the defined risk of harm” and “[t]hus the past
infliction of physical harm by a caretaker, standing alone, does not establish
a substantial risk of physical harm; ‘[t]here must be some reason to believe
the acts may continue in the future.’ 
[Citations.]”  (>In re Rocco M., at p. 824, italics &
fn. omitted.)

            The
reasoning of In re Rocco M. was
soundly rejected by another division of this District Court of Appeal in >In re J.K. (2009) 174 Cal.App.4th
1426.  As the court in >In re J.K. explained, since the
court’s decision in Rocco M., the
Legislature has altered the statutory scheme materially.  (In re
J.K., at p. 1436.)  Subdivision
(b) of section 300 now allows for jurisdiction 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 . . . to adequately supervise or protect the
child[.]”  (Italics added.)  “[T]he use of the disjunctive ‘or’
demonstrates that a showing of prior abuse and harm is sufficient, standing
alone, to establish dependency jurisdiction under these subdivisions.”  (Id.
at p. 1435, fn. omitted.) 

            Here,
although at the time of the jurisdictional hearing Andres P. was still
asserting he did not have a substance abuse problem, that his misconduct was
not likely to recur and that J.P. suffered no physical harm as a result of his,
Andres P.’s, conduct, the evidence indicated otherwise.  The juvenile court’s assumption of
jurisdiction over Wendy P., Andrea P. and J.P. pursuant to subdivisions (b) and
(j) of section 300 was supported by substantial evidence.

            2.  The
juvenile court’s orders requiring removal and monitored visitation.

            Andres
P. contends the juvenile court’s orders removing the children from his physical
custody and granting only visits monitored by someone other than Catalina S.
 must be reversed because they are not
supported by substantial evidence. 
However, on August 29, 2013, the
juvenile court issued an order placing the children back in the home with both
parents.

 

            “It
is well settled that an appellate court will decide only actual
controversies.  Consistent therewith, it
has been said that an action which originally was based upon a justiciable
controversy cannot be maintained on appeal if the questions raised therein have
become moot by subsequent acts or events.”  (Finnie
v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10; see also >City of Los Angeles v. County of Los Angeles
(1983) 147 Cal.App.3d 952, 958.)   Moreover, when an appeal becomes moot, it is
the duty of the appellate court to dismiss it. 
(In re Ruby T. (1986) 181
Cal.App.3d 1201, 1204.)

            Here,
as the juvenile court’s order placing the children in the home with both
parents renders Andres P.’s contentions moot, we need not address them and that
portion of his appeal raising them will be dismissed.

DISPOSITION

            The
juvenile court’s order assuming jurisdiction over Wendy P., Andrea P. and J.P.
is affirmed.  That portion of Andres P.’s
appeal challenging the orders removing the children from his physical custody
and granting only monitored visits is dismissed as moot.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

 

                                                                                    ALDRICH, J.

 

 

We concur:

 

 

                                    KLEIN,
P. J.

 

 

 

 

 

                                    KITCHING,
J.