L. A. Cnty. Dep't of Children & Family Servs. v. F.E. (In re Isaiah E.)

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In re ISAIAH E., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.E., Defendant and Appellant.

B320238

California Court of Appeals, Second District, Seventh Division

November 7, 2023

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No 22CCJP00874, Mary E. Kelly, Judge. Reversed.

Benjamin Ekenes, under appointment by the Court of Appeal for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

MARTINEZ, J.

INTRODUCTION

The Los Angeles County Department of Children and Family Services (Department) filed a dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm inflicted nonaccidentally) and (b)(1) (failure to protect), in March 2022 on behalf of Isaiah E. (born November 2021) based on two incidents of domestic violence inflicted on Isaiah's mother F.E. by Isaiah's father Marc G.^[1] At the jurisdiction hearing two months later, the juvenile court dismissed the subdivision (a) count and sustained the subdivision (b)(1) count. The court declared Isaiah a dependent child of the juvenile court removed him from Marc, and ordered continued supervision by the Department while Isaiah remained in F.E.'s home.

F.E. appeals the jurisdiction findings and disposition orders, contending there was insufficient evidence to support a finding Isaiah was at substantial risk of serious physical harm by the time of the jurisdiction hearing. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. The February 2022 Domestic Violence Incidents

On February 7, 2022 the Department received a referral for emotional abuse of Isaiah and Isaiah's half-sibling, Mark V., alleging Marc pulled F.E. by her hair and displayed a gun after F.E. refused to let him into her residence. F.E. had no visible injuries and declined an emergency protective order.

Interviewed by a Department social worker two days later, F.E. explained she lived with Marc's paternal great aunt and other paternal relatives, but Marc did not live there. She stated that on the day of the incident, Marc showed up at the home wanting to see Isaiah. She stepped outside and went to the front of the home with Isaiah. After a while, she brought Isaiah back inside. Marc insisted on continuing to talk to her and began pulling her arm, refusing to go when his relatives told him to leave. Marc told F.E. he wanted to continue their relationship and called her names. His great aunt told Marc to calm down, but he refused and dragged F.E. to the parking lot of the apartment. With his back to his relatives, Marc lifted up his shirt and showed F.E. a gun, pointed the gun at the ground, then fled. F.E. called law enforcement and made a police report.

F.E. explained that she was never in a relationship with Marc, although they had sex twice after meeting at a friend's home. F.E. said there was another incident a month earlier where she was in the passenger seat in Marc's car, and he pushed her after she greeted a male friend. F.E. said because Marc pushed her and lied about his age, she decided she could not be in a relationship with him.

On February 16 the Department received a referral reporting a second domestic violence incident. The referral stated that Marc approached F.E.'s car about a block from her residence, hit the car, cracked the windshield, and demanded she let him inside the car. Out of fear, F.E. opened the door, Marc got in the driver's seat and she moved to the passenger seat. After driving a block, Marc started punching F.E.'s face and head. F.E. exited the car in an attempt to flee, but she fell, and Marc stomped on her back. As a result, she had a visible injury on her left cheek, and she complained of back pain. Interviewed by a Department social worker the same day, F.E. confirmed the incident, which occurred on February 15. After the incident, Marc drove off in F.E.'s car, and F.E. called his great aunt to pick her up. After the great aunt arrived, they found F.E.'s car abandoned a few blocks away. F.E. called the police and was issued an emergency protective order. Isaiah was not present for the incident.

The same day, Marc broke into his relatives' home through a window, took Isaiah's clothing, and also stole a household car. The family called the police, but Marc left before the police arrived. A household member reported Marc had come to the house on February 14 brandishing a firearm and threatening to kill F.E. The record does not reflect that F.E. and Isaiah were present for these particular incidents.

After the second incident, F.E. moved to San Diego with Isaiah and was residing at a confidential location with a cousin. F.E. feared Marc and did not know when she would return from San Diego. F.E. would not disclose the cousin's address because the cousin did not want to be involved.

On March 1 the Department informed F.E. that Marc had been arrested and was incarcerated.^[2]

B. Isaiah's Detention and Release to F.E.

On March 9 the Department filed a section 300 petition under subdivisions (a) and (b) that alleged domestic violence by Marc and F.E.'s failure to protect.

At the detention hearing on March 14, the juvenile court removed Isaiah from Marc, and ordered monitored visits with him.

The next day, the juvenile court issued a temporary restraining order protecting F.E. from Marc. On April 6 the juvenile court issued a permanent three-year restraining order protecting F.E. from Marc.

In an interview conducted for the Department's risk assessment report, F.E. conceded the domestic violence allegations were true, but questioned how Isaiah could have been in danger if he was not physically present during the incidents. Regarding count b-1, F.E. disagreed with the allegations of failure to protect because Marc was not violent with her before the two reported domestic violence incidents, and Isaiah was not present when Marc got in her car.

F.E. also explained she was on three years' probation after serving eight months in jail for attempted murder in 2021 (before Isaiah was born), based on an incident where she was driving a vehicle with Marc in the car when individuals began shooting at them and he shot back. F.E. was charged because she was the driver.

The Department risk assessment report noted F.E. had left her home and was residing at a confidential location. The Department's report concluded F.E. was protective and that Isaiah could remain with her. The Department reported F.E. "understands the importance of keeping the child Isaiah safe and away from any and all" domestic violence, and had "moved to a confidential location and is accepting of services."

C. The Jurisdiction/Disposition Hearing

On May 2 at the combined jurisdiction and disposition hearing, the juvenile court dismissed count a-1 and sustained the failure to protect allegation in count b-1.^[3] The court stated it would sustain the failure to protect allegation for the reasons argued by the Department. These reasons are as follows: the restraining order was granted based on a finding Marc posed a risk; F.E.'s understanding that he posed a risk to her and Isaiah was only recent; F.E. had enrolled in programs only a week earlier; F.E. rejected an emergency protective order after the February 7 incident, even though she recounted a prior physical incident (Marc pushing her while she was in his car) a month earlier; F.E. showed naivety about how domestic violence places children at risk by asking how Isaiah was at risk if he was not present for either incident; and her claim she was unaware of Marc's propensity for violence was belied by the fact that he used a firearm in her presence in an attempted murder a year earlier. The juvenile court struck the allegation that Marc brandished a firearm, but stated it was concerned for Isaiah's safety due to the evidence of gun violence.

The juvenile court declared Isaiah a dependent child of the court, and found F.E. was the custodial parent and would retain physical custody of the child. The court found Marc was the noncustodial parent at the time the petition was filed, and that Isaiah would be in substantial danger if placed in his care. The juvenile court ordered family maintenance services for F.E., including a domestic violence program for victims, a parenting class, and individual counseling. The court ordered monitored visits and services for Marc, including a 26-week domestic violence program for perpetrators, a parenting class, and individual counseling.

On May 2 F.E. appealed the juvenile court's jurisdiction findings.^[4] Subsequently, on November 10 the juvenile court terminated jurisdiction, but stayed its order pending receipt of a juvenile custody order granting sole legal and physical custody to F.E., with monitored weekly virtual visits for Marc while incarcerated, and three monitored visits a week upon release from custody. On November 17 the court received and issued the juvenile custody order.

The same day, F.E. appealed the findings and orders made on November 10 and 17.^[5]

DISCUSSION

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.)

Section 300, subdivision (b)(1), allows a minor to be...