Filed 8/4/16 In re Devyn S. CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

In re D EVYN S. et al.
,
Person s Coming Under the Juvenile Court Law. B267423 (Los Angeles County Super. Ct. No. DK10194)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
MELISSA S.,
Defendant and Appellant.

APPEAL from order s of the Supe rior Court for Los Angeles County, Amy M. Pellman, Judge. Affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County Counsel, and Stephe n D. Watson, Deputy County Counsel, for Plaintiff and Respondent.2

In this dependency case, the j uvenile court made jurisdictional findings
under Welfare and Institutions Code 1 section 300, subdivision (c), with regard to appellant Melissa S.’s (mother) t hree children, D evyn , Arianna and Jayden. In its subsequent disposition order, the juvenile court removed D evyn from mother’s custody and ordered that mother and their father, Justin A. (father) 2 have joint physical and legal cu stody of Arianna and Jayde n

. Mother challenges the jurisdictional order as to Arianna and Jayden , contending there is insufficient evidence to support the court’s finding that they were at substantial risk of suffering emotional harm absent intervention by the juvenile court. She also challenges the juvenile court’s disposition order with regard to Arianna and Jayden, arguing that the court effectively removed them from her custody ( because she p reviously had sole custody), without making requisite findings for removal.
We affirm both order s

.

BACKGROUND 3 On January 12, 2015, 4 the Los Angeles County Department of Children and
F amily Services (the Department) received a referral regarding D evyn , Arianna

1 Fur ther undesignated statutory references are to the Welfare and Institutions Code.

2 Michael B., D evyn ’s alleged father, did not appear in the dependency case; neither he nor father is a party to this appeal.

3 Because mother does not challenge the jurisdi ction or disposition findings as to D evyn , our discussion of the facts is limited to the facts necessary to review the findings as to Arianna and Jayden.

4 All dates refer to the year 2015 unless otherwise specified.3

and Jayden. 5 The r eporting party, who said she had known the family for seve ral years, reported that Jayden had posted on Facebook that her grandfather was hitting D evyn too hard. The reporter also said that there were ongoing problems in the home, because mother is “somewhat of a perfectionist about everything ” and is “extremely ‘over the top’ in everything she does.” She observed that mother is “extremely uptight, stern and rigid with her children,” and “constantly ridicules
and belittles” them. At the time of the referral, Devyn was 13 years old, Arianna was seven, and Jayden was five. Six weeks later, the Department received another referral regarding the family. The referral related to an incident on the evening of February 26. According to the referral, D evyn reported that he and his maternal grandfather had
an altercat ion. He said that grandfather started pushing him, and in response,
D evyn took grandfather’s glasses. G randfather then hit D evyn with a closed fist
several times and held him on the couch so he could not breathe. D evyn ran out of
the house and went to a neighbor’s home; D evyn had run to the neighbor’s home three other times due to physical abuse. A social worker from the Department spoke to the neighbor at 12:30 a.m. on February 27. The neighbor told the social worker that D evyn came to her door,
bare foot and upset, and said that his grandfather had punched him in the mouth and
choked him. D evyn told her that he did not want to return to mother’s home. The police arrived and took him away; she did not kn ow where. She noted that D evyn had gone to a f

ew of the neighbors at other times with stories of neglect by mother.

5 There had been four previous referr als in 2013 and 2014, alleging physical abuse and/or general neglect as to D evyn and risk of abuse as to Arianna and Jayden. The Department determined that those referrals were either unfounded or inconclusive. However, due to D evyn ’s reported behavioral problems, a voluntary family maintenance case was opened in 2014 to put services in place for the family.4

The social worker then went to mother’s home, accompanied by a sheriff’s deputy, and spoke with mother and grandfather. Mother told him that D evyn had thrown away his medication and “had been spiraling for the last two days.” She said that she had been trying to get the other two children to bed when D evyn hit one of them. She took the two younger children upstairs to her bedroom and
locked the door. D evyn was trying to get into he r bedroom, so she asked grandfather to keep him away. She heard a commotion downstairs, and later, when she left the bedroom, she found that D evyn had left the home. She said she asked grandfather to go look for D evyn , but he could not find him.
Grand father told the social worker that he had been staying with mother for
two months waiting for medical treatment. He said that he heard mother call out to him, asking him for help because she was trying to take the younger children to
bed. Mother asked hi m to block D evyn , who was trying to get into her room. He
said that D evyn was upset, and threw a bottle at him. He tried to calm D evyn down, and they started to wrestle, and then D evyn ran off outside. Mother came downstairs and asked grandfather to go find D evyn ; he tried, but could not find
him.
D evyn was taken by the police to a psychiatric hospital

. 6 The following day, he was interviewed by CSW Kyle, t he socia l worker assigned to this case . D evyn told the social worker about the incident. CSW Ky le observed that the left side of
D evyn ’s mouth was swollen, which was consistent with D evyn ’s description of the
incident. When asked whether grandfather had ever done something like that to him before, D evyn said he had not, but that grandfather had hit his sister before.
D evyn also told CSW Kyle that he did not want to return home, and that he wanted to live with his uncle Gordon, with whom he had lived before.

6 D evyn had been in a psychiatric hospital twice before.5

That same day, CSW Kyle went to mother’s home. Mother was not there
when the social work er arrived, but grandfather allowed the social worker into the home. CSW Kyle told grandfather about D evyn ’s allegations. Grandfather denied the allegations, and said that mother, who had locked herself and the younger children in the bedroom, had called out for help with D evyn ; he said only tried to
restrain D evyn , and that D evyn broke free from him and ran out of the house. Mother entered the home with Arianna and Jayden while CSW Kyle was speaking with grandfather. Mother’s demeanor was “difficult” and “somewhat
hostile.” When asked a bout the incident with D evyn , mother said that D evyn had dumped his medication the day before. She said that she was trying to get her daughters ready for bed, and needed a time out from D evyn , so she tried to close
th e door. D evyn did not want her to close the door, so she called to grandfather to help her with D evyn . Mother denied that grandfather harmed D evyn , but admitted
that she had not seen D evyn after the incident. 7 CSW Kyle asked if she could speak with Aria nna and Jayden privately, but mother would allow her to speak with them only if she were present. Both children denied any abuse by mother or grandfather, and said they were happy with mother. Over the next few days, CSW Kyle spoke with friends of the f amily, neighbors, and others who had contact with the family. Most reported concerns
about mother’s treatment of D evyn , primarily regarding emotional abuse. Although they generally did not report significant mistreatment of Arianna and Jayden, a longtime family friend expressed concern for the girls, because their attitudes had changed recently
, and they were not as happy as they used to be.

7 In fact, mother made no contact with D evyn or the hospital for at least four days afte r he was admitted.6

On March 10, CSW Kyle contacted father and told him she was investigating allegations of abuse and neglect again st mother. Father told the social worker that he had had minimal contact with Arianna and Jayden, and that the last time he saw them was the previous spring . H e said that mother uses the children as leverage and that, from his experience with mother duri ng their relationship, mother had a bad temper, and “her instincts in the heat of the moment go to very drastic measures.” However, he told the social worker that he had never
known moth er to be abusive toward their daughters, and that they have never

rep orted any abuse or neglect to him when he ha s spoken with them on the telephone. On March 17, the Department filed a petition under section 300. The petition alleged counts under section 300, subdivisions (a) , (b), and (j ) as to all
three children based upon grandfather’s alleged physical abuse of D evyn and
mother’s fa ilure to protect (counts a

- 1, b

- 1 , and j

- 1 )
, mother’s alleged physical
abuse of D evyn (counts a

- 2, b

- 2, and j

- 2), and mother’s failure to properly supervise D evyn , who allegedly hit Arianna (counts b

- 3 and j

- 3). The petition also alleged a count under section 300, subdivision (c) as to D evyn based on mother’s alleged emotional abuse (count c

- 1). At the detention hearing, the juvenile court found a prima facie showing under section 300, sub divisions (a), (b), and (c) as to
D evyn , and under subdivisions (a), (b), and (j) as to Arianna and Jayden. The
court ordered D evyn detained, and Arianna and Jayden released to mother. In advance of the jurisdiction hearing, father’s counsel submitted s everal exhibits, including a declarati on by father and a request for modification of custody
, which father had filed in a pre

- existing family law case. In his declaration, father described mother’s behavior during his previous visits with their daughters. He stated that mother would allow him to see the girls only if she were present, and used those visits to try to reestablish her relationship with father

.7

When he would call to speak with the girls, he could hear mother telling them what to say, often c riticizing him. On many occasions, she refused to allow him to see
them at all. Sometimes, she would agree to let him see them, but then change her mind on the day of the agreed meeting. In the summer of 2012, mother had agreed
to let father take the ch ildren to a pool party, but on the day of the party
, mother would not respond to father’s texts or calls. When she contacted him the next day, she told father he could see the children only if he agreed to spend the night at her house; when he refused, sh e threatened not to allow any more visits. By 2013, mother refused to allow father to visit with or speak to his daughters at all. At times, he went to her house in unsuccessful attempts to see them; when he knocked on the door, he could hear mother hush ing the children, but she refused to open the door or answer the phone. One time, he happened to see his children at a Wal

Mart, but when mother saw him, she grabbed the girls and ran away; the girls saw
him and cried. On the first day of the jurisdicti on hearing, mothe r presented testimony from

two witnesses

– herself and a child ca re provider who had taken care of D evyn and was currently ta king care of Arianna and Jayden. D evyn ’s counsel called Gordon S. (D evyn ’s great uncle, with whom D evyn lived for a while) as his sole witness. All of the testimony focused on D evyn , and did not directly address any issues with regard to Arianna and Jayden. The hearing was not completed on that day,
and was continued for several weeks.
In two memos submitted to t he juvenile court on the day of the continued hearing, the Department repo rted on issues regarding visits with mother and Arianna and Jayden since the previous hearing . CSW Schafnitz, the new assigned social worker, had left several messages for mother, b ut mother had not returned any of them. When another social worker went to mother’s home on July 22 for an unannounced bimonthly meeting and knocked on the door, she heard one of the8

girls call out to mother. The child looked out the window, but disappea red behind
the blinds when the social worker smiled at her. The social worker stood at the
front door for 10 minutes, and telephoned mother to let her know she was there, but mother did not answer her phone or open the door. The Department noted that

mot her’s lack of cooperation and failure to allow the social wo rkers access to her
children had been a continuing problem. The Department also reported that according to father, mother h ad not been giving father the requested number of
hours for his visits. He said that on one occasion he wanted to take the girls to the beach, but mother would not allow it; he later discovered that the girls just stayed home that day and watched television. Finally, father told the social worker that every time he g ot the c hildren, they we re very hungry. At the continued hearing, t he juvenile court heard further testimony from mother and Gordon S., as well as clo sing arguments from all counsel; the matter
was continued once agai n. At the next hearing, held on August 6, the court made the jurisdictional findings

. The court observed that “[t]hroughout these [proceedings], the mother
has been difficult to reach. She has failed to make herself available for the interview by the Department. And she has made it difficult to be in touch with her and set up visits for [father] or to allow the Department to see the younger children. It appears the reports of mother needing to be in control, controlling of her every situation have some tru th.” The court addressed the issues re garding mother’s relationship with D evyn , and then discussed Arianna and Jayden: “Arianna and Jayden are living in a war zone. They are constantly taken into
mother’s room and locked in while Devyn is banging on the door, begging to get in, throwing or d estroying items in the home. They are witnessing physical
violence b etween mother and Devyn and severe emotional outbreaks. [¶] The court believes that while these two little girls may be well taken care of on the9

outside and are currently showing no si gns of real distress, there is real and substantial risk of harm to these girls if Devyn were to be returned home at this
time. ” After noting that section 300, subdivision (c) “applies to children who are at substantial risk of suffering serious emotional damage, even when there is
insufficient evidence that they have suffered actual harm,” the court dismissed all of the counts under section 300, subdivisions (a), (b), and (j), and amended and
sustained count c

- 1 as follows: “On multiple prior occasions, [D evyn ’s] mother, Melissa [S.], engaged in behavior that emotionally aggravated D evyn to the point
D evyn was out of control and/or psychiatrically hospitalized resulting in both severe emotional distress and physical harm. D evyn has suffered and is at ris k of continuing to suffer serious emotional damage as evidenced by severe depression, withdrawal, and aggressive behaviors towards himself and others, as a result of mother’s inability to control both her own and D evyn ’s behaviors, which h as resulted in ha rm to the child and places his sisters, Arianna [A.] and Jayden [S.], at
future risk of harm.” 8 Before the court could make its disposition order, father’s counsel asked for a short break to conference on the matter. When the hearing resumed, counsel fo r Arianna and Jayden told the court that an issue had been raised a s to whether the court could change a custody order ; counsel indicated that the research she conducted during the break showed there was some controversy over mother’s
assertion that the co urt could not change such an order. The court continued the disposition hearing to allow counsel to meet and confer regarding the disposition and to submit briefs on the custody issue.

8 We note that the minute order for this hearing includes the court’s finding that D evyn is a person described by section 300, subdivision (c), but does not include the court’s finding with regard to Arianna and Jayden.10

At the continued disposition hearing, mother’s counsel argued that under section 361, subdivision (c), a dependent child cannot be taken from the physical custody of his or her parent with whom the child was residing at the time the petition was filed unless the juvenile court finds clear and convincing evidence of
certai n specified circumstances. The court responded that section 361, subdivision (c) did not apply to this case because the court did not intend to take custody away from mother, but was merely changing custody and visitation, which the court was empowered to do. The court then declared Arianna and Jayden dependent children
of the court and ordered that mother and father w ould have joint legal and physical custody of them, under supervision of the Department

. 9 Mother timely filed a notice of appeal from the jurisdiction and disposition
orders.

DISCUSSION In her appellant’s opening brief, mother contends there was insufficient evidence to establish jurisdiction over Arianna and Jayden under section 300, subdivision (c); in a supplemental opening brief, mot her contends the juveni le court did not have the authority to order joint custody without complying with the removal provisions of section 361, subdivision (c). Neither contention has merit.

9 We note tha t the minute order for the disposition hearing incorrectly states that Arianna and Jayden were declared dependent children under section 300, subdivisions (a), (b), and (j). As previously stated, the reporter’s transcript of the previous hearing showed th at the court dismissed all counts under those subdivisions and sustained an amended count under section 300, subdivision (c) as to all three children.11

A. Jurisdictional Order Under section 300, subdivision (c) , a juvenile court may adjudge a child to be a dependent of the court if “[t]he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggre ssive behavior toward self or others, as a result of the conduct of the parent or guardian.” (§ 300, subd. (c).) “In the trial court, child welfare authorities have the duty to establish the jurisdictional facts by a preponderance of the evidence. [Cita tion.] On appeal, however, ‘“we must uphold the [trial] court’s [jurisdictional] 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.]”’ [Citation.]” ( In re D.P. (2015 ) 237 Cal.App.4 th 911, 917.) In her opening brief, mother concedes that the court correctly found that
D evyn was suffering from emotional h arm due to mother’s conduct. She also notes that the juvenile court aptly observed that Arianna and Jayden were “living in

a war zone ” due to D evyn ’s and mother’s interactions, and concedes that the girls
would be at risk of emotional harm if D evyn were r eturned to the home

. B ut she asserts there is no evidence that Arianna and Jayden would be subject to substantial
risk of harm without D evyn in the home. Since D evyn had been detained from mother at the time of the jurisdiction hearing, and since “the qu estion under section
300 is whether circumstances at the time of the hearing subject the minor to the
defined risk of harm” ( In re Rocco M. (1991) 1 Cal.App.4 th 814 , 824), mother argues there was no basis to find that Arianna and Jayden were dependent chil dren
of the court under section 300, subdivision (c). The primary fault in mother’s argument is her assumption that the “war zone” the juvenile court described was solely due to D evyn ’s behavior. T here was12

substantial evidence suggesting that mother’s behavior was the primary cause. For

ex ample, although mother s aw D evyn a s violent and aggressive, others who had interactions with him described him as a “really good kid.” In fact, it was reported
that D evyn displayed no such violent and aggressive beha vior while he lived with his uncle Gordon, both before and after the petition was filed , and that he was able to get off of his medication while living with him. In contrast, family members and longtime family friends described mother as extremely uptight and controlling,
with a bad temper
, who tend ed to take drastic measures ; many of those friends expressed concern for the children. Mother’s c onduct with the Department social
workers and with father was consistent with those observations . S he was hostil e toward the social workers and would not allow them to have access to the girls
, refusing to answer the door or her phone when a social worker went to her home

. She would not let father visit with his daughters without her being present, and arbitrarily cut off all contact with him

– even going so far as to take the girls and run away from him when he happened to see them at a store

. Although there was little evidence that mother was emotionally abusive toward Arianna and Jayden while D evyn was living with them (although one longtime family friend report ed that she constantly ridiculed and belit tled all of
her children , and another noted that the girls’ attitudes had changed and they were not as happy as they used to be ), the juvenile court reasonably could infer that with
D evyn removed, mother would turn her emotional ly abusive behavior toward one or both of them. (See, e.g., In re Edward C. (1981) 126 Cal.App.3d 193, 203 [“court could reasonably infer that the father, with [physically abused daughte r] removed, would substitute either one or both of the boys as an object of his ruthless drive for religious perfection”].) This inference is especially strong in this case, since mother, like the mother in In re D.P. , supra , 237 Cal.App.4 th 911, has

atte mpted to minimize her role in causing D evyn ’s emotional harm and thus fails13

to recognize the risks of her behavior . In short, we conclude that substantial evidence supports the juvenile court’s jurisdictional finding with respect to Arianna and Jayden.

B

. Custody Order In her supplemental opening brief, mother argues that the juvenile court acted without authority by ordering a change in custody for Arianna and Jayden

– from mother’s sole custody to joint custody with father. She contends that this
chan ge in custody constituted a removal of the children from her custody , which may be ordered only if the juvenile court makes one of the findings required under section 361, subdivision (c), which was not done in this case. Section 361, subdivision (c) prov ides in relevant part that “[a] dependent child shall not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convin cing evidence of” certain circumstances, such as a substantial danger of harm to the child if he or she were returned home, and there are no reasonable means to protect the child without removing him or her from the parent’s physical custody. Mother’s arg ument might have some merit if the juvenile court had award ed
father sole custody of Arianna and Jayden , thus taking them from the physical custody of mother

. But the court did not do that. It merely ordered that mother
share custody of the girls with fa ther. Therefore , section 361, subdivision (c) did not come into play. Instead, the juvenile court acted under the authority of sections
302 and 362. Section 302 provides that “[a] juvenile court may assume jurisdiction over a
child described in Section 300 regardless of whether the child was in the physical custody of both parents or was in the sole legal or physical custody of only one14

parent at the time that the events or conditions occurred that brought the child within the jurisdiction of the court.” (§ 302, subd. (a).) It requires that both parents, whether custodial or noncustodial, be notified of all proceedings. (§ 302, subd. (b).) And it provides that “[w]hen a child is adjudged a dependent of the juvenile court, any issues regarding custodia l rights between his or her parents shall be determined solely by the juvenile court, as specified in Sections 304, 361.2, and 362.4, so long as the child remains a dependent of the juvenile court.” 10 (§ 302, subd. (c).)
Section 362 provides that “ [i] f a child is adjudged a dependent child of the court on the ground that the child is a person described by Section 300, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, inclu ding medical treatment, subject to further order of the court.” (§ 362, subd. (a).) Clearly, under these statutes, the juvenile court has broad discretion to make or modify custody orders in accordance with the best interests of the dependent
child. Mot her’s interpretation of section 361, subdivision (c), if accepted, would significantly limit that broad discretion, and prevent the court from modifying a custody order even if it determined it was in the child’s best interests to do so,
unless the specifi c circumstances set forth in section 361, subdivision (c) were

10 Section 304 provides that while a child is under the jurisdiction of the juvenile court, all issues r egarding custody must be heard by the juvenile court. Section 361.2 applies when the court removes a child from a custodial parent; if the noncustodial parent requests custody, the court must place the removed child with that parent unless doing so would be detrimental to the child, and may order that the parent become the legal custodian and terminate dependency jurisdiction or assume custody subject to, or under the supervision of, the juvenile court. Section 362.4 provides that when the juvenile court terminates its jurisdiction over a dependent child, if a custody order had been entered in any superior court, the juvenile court may issue an order determining custody of, or visitation with, the child, and that order will continue until modified or termi nated by a subsequent order of the superior court.15

found. We decline to interpret section 361, subdivision (c) in that way. Instead, that provision must be interpreted to apply only when the juvenile court removes a dependent child entirely f rom a custodial parent’s physical custody.

DISPOSITION The juvenile court’s jurisdictional and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.