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In Re Daisy H. et al., Persons Coming Under the Juvenile Court Law. v. David H

February 8, 2011

IN RE DAISY H. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
DAVID H., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court of Los Angeles County. James K. Hahn, Judge. (Los Angeles County Super. Ct. No. CK79438)

The opinion of the court was delivered by: Rothschild, Acting P. J.

CERTIFIED FOR PUBLICATION

Reversed.

This case involves no risk factors justifying the juvenile court's orders declaring the children, ages 9 and 13, dependents of the court, removing them from their father's custody and control and restricting him to monitored visits at neutral sites. Accordingly, we reverse the court's jurisdictional and dispositional orders.

FACTS AND PROCEEDINGS BELOW

Two weeks after Father and Mother signed a mediated "custody and parenting" plan in their dissolution proceeding, an unidentified person contacted the Department of Children and Family Services (DCFS) and claimed that Father was emotionally abusing the three minor children, Stacey, Daisy and David. After interviewing Father, Mother and the children, the DCFS filed a petition to have the children declared dependents of the court.

The petition, as amended, contained allegations under Welfare and Institutions Code section 300,*fn1 subdivision (a) [risk of "serious physical harm"], subdivision (b) [parent's failure to protect child from risk of "serious physical harm"] and subdivision (c) [risk of "serious emotional damage"]. The court sustained the allegation under subdivision (a) that on prior occasions Father choked Mother and pulled her hair and that once, while speaking to Daisy, Father threatened to kill Mother. With respect to subdivision (b), the court sustained the same allegation of domestic violence contained in subdivision (a) plus allegations that Father "has mental and emotional problems . . . which render[ him] unable to provide regular care of the children" and that Father emotionally abuses his children "by making derogatory statements about their mother which include . . . 'bitch, hoe [sic] and prostitute.'" Each allegation sustained by the court under subdivisions (a) and (b) included the accusation that Father's conduct "places the children at risk of physical and emotional harm." The court found insufficient evidence that Father's name-calling, as alleged under subdivision (b), placed the children at risk of "serious emotional damage" under subdivision (c).

After making its jurisdictional findings, the court ordered that Daisy and David be placed with Mother,*fn2 that the children and Father participate in counseling and that Father see a psychiatrist for evaluation if recommended by his therapist.

Father filed a timely appeal from the dispositional order.*fn3

While Father's appeal was pending, on October 7, 2010, the court terminated its dependency jurisdiction and awarded joint legal and physical custody to the parents with physical custody shared pursuant to the mediation agreement signed in the dissolution proceeding. We take judicial notice of the juvenile court's October 7, 2010 orders. The court's termination of jurisdiction does not, however, moot Father's appeal. The court's jurisdictional findings as to Father, if erroneous, could have severe and unfair consequences to Father in future family law or dependency proceedings. (See In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)*fn4

DISCUSSION

The court erred in finding it had jurisdiction over the children under section 300, subdivisions (a) and (b) on the ground that the children were at risk of "physical and emotional harm." The evidence is insufficient to support either finding. Furthermore, a finding of "emotional harm" will not support jurisdiction under subdivisions (a) or (b).

I. PHYSICAL HARM

Jurisdiction under section 300, subdivision (a) requires proof that the child suffered or is at substantial risk of suffering "serious physical harm inflicted nonaccidentally ...


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