Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. Ashley L. (In re Cole L.)

70 Cal.App.5th 591

285 Cal.Rptr.3d 464

IN RE COLE L. et al., Persons Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Ashley L. et al., Defendants and Appellants.

B310319

Court of Appeal, Second District, Division 7, California.

Filed October 19, 2021

Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant Ashley L.

Landon W. Villavaso, under appointment by the Court of Appeal, for Defendant and Appellant Wesley S.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P. J.

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)¹ in March 2020 on behalf of now-five-year-old Cole L. and three-year-old Mckenzie L. based on an incident of domestic violence between Ashley L. and Wesley S., the children's mother and presumed father. At the jurisdiction hearing nine months later, the juvenile court sustained both counts, finding "there is a long history of these parents having some domestic violence issues." The court declared the children dependents of the juvenile court and ordered continued supervision by the Department while the children remained in Ashley's home.

Ashley and Wesley appeal the jurisdiction findings and disposition orders, contending the court improperly relied on unalleged acts in making its findings and there was insufficient evidence to support a finding the children were at substantial risk of serious physical harm by the time of the jurisdiction hearing. We agree with their latter argument and reverse.²

FACTUAL AND PROCEDURAL BACKGROUND

1. The March 20, 2020 Incident

On March 20, 2020 officers from the Los Angeles Police Department (LAPD) responded to a call reporting "screaming, yelling, banging and slamming" at the family home.³ When the officers arrived, they heard loud music. No one answered their initial requests to enter the residence. Ashley ultimately opened the door.

The home was in disarray, and the officers observed evidence of a domestic violence altercation: There was a broken phone on the floor; Ashley "had bruises and scratches"; Wesley "had scratches."

Both children were sleeping. Mckenzie was "drowsy and not alert" and could not be awakened; she appeared to the officers to be under the influence of something. Cole was also drowsy "but not as bad." Concerned for the children, the officers contacted the child protection hotline to report child endangerment. The children were taken to the hospital to be examined. Blood and urine tests for both children were negative. Neither child had any marks or bruises that would indicate abuse or neglect.

Ashley and Wesley were arrested for suspicion of injuring a child ( Pen. Code, § 273a, subd. (a) ), a charge that was not pursued. No domestic violence charges were filed.

Interviewed by a Department social worker the following day while still in a jail holding cell, Ashley explained she had been asleep when the officers arrived at the home. Earlier, she had discovered Wesley—her boyfriend and the father of Cole and Mckenzie—was unfaithful to her, and the two of them had a loud argument. Ashley then walked away and lay down where the children were already napping. Ashley denied there had been a physical altercation and said there was no history of domestic violence between her and Wesley, although she acknowledged they had had "a couple of arguments." Ashley said she and Wesley do not live together, he is not at the home often, and "we have gone as long as nearly a year without actually seeing each other." She said there had been one prior occasion when the police had been called, but she had asked Wesley to leave and he did.

The social worker also interviewed the LAPD officer who initially responded to the domestic disturbance call. The officer explained she was concerned the children had been exposed to domestic violence and they appeared to be under the influence of alcohol. Consistent with the initial report to the Department, the officer stated "mother and father had scratches and bruises, which were indicative of a domestic violence altercation."

2. The Children's Detention and Release to Ashley

The children were temporarily removed from their parents on March 26, 2020 pursuant to a warrant issued on March 24, 2020 and placed with their maternal grandmother, Donnamarie F. On March 30, 2020 the Department filed a dependency petition, alleging in identical language in counts under section 300, subdivisions (a) and (b)(1), "On 03/20/2020, the children, Cole A. L[.] and Mckenzie L[.]’s mother, Ashley F. L[.,] and father, Wesley [S.,] engaged in a violent altercation in the children's home in which the mother and the father sustained scratch marks and bruises to their bodies. Such violent conduct on the part of the parents endangers the children's physical health and safety, and places the children at risk of serious physical harm, damage and danger."

The Department's March 30, 2020 detention report, in addition to describing the March 20, 2020 incident as reported by the LAPD and the social worker's March 21, 2020 interview with Ashley, provided details concerning dependency proceedings in 2013 involving Ashley's older daughter, Maya. Maya had been declared a dependent child of the juvenile court based on a sustained petition alleging Ashley had an unresolved history of alcohol abuse and had been under the influence of alcohol while the child was in her care. On February 11, 2014 the court terminated its jurisdiction and issued a juvenile court custody order awarding sole legal and physical custody of Maya to the child's father, Aaron H.

In her interview with the Department's social worker, Ashley stated she did not use drugs and did not have a history of substance abuse, but acknowledged her history with the Department and reported she had a driving-under-the-influence incident in her past. She said she suffers from anxiety and sometimes depression and is taking medication (sertraline ) to manage her mental health.

Following his arrest by the LAPD on March 20, 2020, Wesley was transferred to the custody of the San Bernardino County Sheriff on an outstanding bench warrant. He was not available to be interviewed for the detention report. Cole and Mckenzie were too young to make meaningful statements. However, the social worker observed them to be comfortable and happy with Ashley.

Donnamarie lives with Ashley and the children. In her initial interview Donnamarie said she had not been at home during the incident leading to LAPD's domestic disturbance response and did not know what had happened. She told the social worker she and Ashley had an argument several years earlier. After Donnamarie "vented" about the argument to her physician, he called Adult Protective Services, which contacted Donnamarie several times to make sure she was not a victim of abuse. Donnamarie explained the argument was verbal only and she was not a victim. However, a Department incident report based on an August 21, 2018 referral indicated in February 2018 Ashley had repeatedly hit Donnamarie's back and head while Ashley was holding Cole. Donnamarie pepper-sprayed Ashley and left the home. The matter was closed as "inconclusive" on the recommendation of the social worker involved, based on her observation that Ashley and Donnamarie "have become very cooperat[ive] out of interest of Cole and Mckenzie. Neighbor, medical, school and mother's psychiatrist stated there are no child safety concerns."

The detention report also summarized a November 2013 referral that was closed as "unfounded" following allegations of physical abuse of Maya by her father, as well as several other inconclusive and unfounded referrals involving Maya.

In the section of the report concerning the need, if any, for continued detention, the social worker wrote, "According to mother, and maternal grandmother, father has an unresolved history of perpetrating domestic violence via arguments against mother when consuming alcohol which is reportedly provoking father to become verbally argumentative with mother."

At the detention hearing on April 2, 2020, Wesley, who was not present, was found to be the presumed father of both children. The court detained the children from Wesley and, over the objection of the Department, released them to Ashley on condition that Ashley continue to live with the maternal grandmother, drug test and take any prescribed medication. Wesley was permitted monitored visitation, which was not to occur at Ashley's home.

At the hearing Ashley requested a restraining order to protect herself, Cole and Mckenzie from Wesley based on Wesley's "erratic behavior." The court issued a temporary restraining order; but, after numerous continuances, no final order was issued due to Ashley's inability to serve Wesley.⁴

3. The Jurisdiction/Disposition Hearing

The combined jurisdiction and disposition hearing, originally scheduled for June 4, 2020, was continued multiple times and finally held on January 6, 2021. In its report for the original hearing, filed June 3, 2020, the Department included excerpts of a further interview with Ashley, who again insisted there had not been a physical altercation on March 20, 2020. Ashley described the incident as "a verbal altercation dealing with fidelity." She explained, "At one point I had his cell phone and I asked him to delete from Facebook a girl that he was cheating with. He refused to do so. I had the phone and tried to do it myself, and he grabbed it. He refused to delete the girl. He admitted to cheating. I went in the room where the children were napping and [lay] down as well. He stayed in the front and watched TV. Next thing I know...