Filed 5/19/15 In re Makayla M. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


In re MAKAYLA M., a Person Coming                                       B259018
Under the Juvenile Court Law.
                                                                        (Los Angeles County
                                                                        Super. Ct. No. DK06169)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

CRYSTAL L.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County,
Timothy Saito, Judge. Reversed.


         Jaime A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
                                            _____________________
                                   INTRODUCTION
       Crystal L. (mother) appeals an order for informal supervision under Welfare and
Institutions Code section 360, subdivision (b).1 In its petition for dependency
jurisdiction, the Los Angeles County Department of Children and Family Services (the
Department) alleged mother placed her one-year-old daughter, Makayla M., at risk of
physical harm after receiving a report that mother’s male companion, Frank Z., battered
his sister in an altercation outside the apartment he then shared with mother and Makayla.
Without disputing the seriousness of Frank’s misconduct, mother contends the evidence
was insufficient to support a finding that she neglected Makayla within the meaning of
section 300, subdivision (b), because, at the time the court assumed jurisdiction over
Makayla three months later, there was no evidence that mother and Makayla still lived
with Frank or that mother had an ongoing relationship with Frank. We agree with mother
that the Department failed to establish a present risk of harm to Makayla at the time the
juvenile court assumed jurisdiction over the child. Accordingly, we reverse.
                   FACTS AND PROCEDURAL BACKGROUND
       On May 6, 2014, the Department received a referral concerning mother’s live-in
boyfriend, Frank, and the risk mother’s relationship with Frank posed to her one-year-old
daughter, Makayla. According to the referral, Frank was involved in an altercation the
previous day outside the apartment he shared with mother and Makayla. Frank’s two-
year-old daughter from a different relationship, Sophia, had been at the apartment that
day for a visit. The altercation began when Sophia’s mother, Stephanie, who was seven
months pregnant with another child by Frank, came to the apartment to retrieve Sophia.
Frank’s 15-year-old sister, Brianna, accompanied Stephanie. Not long after Stephanie
arrived, she and Frank started arguing over Sophia’s care. Brianna, who was holding
Sophia, attempted to intervene, at which point Frank pushed her away. Brianna set
Sophia down and slapped Frank. Frank responded by striking Brianna in the eye,
knocking her glasses off her face. Brianna attempted to flee in the car with Stephanie and

1
       Subsequent statutory references are to the Welfare and Institutions Code.


                                             2
Sophia, but Frank got behind Brianna and wrapped his arm around her neck. When
Brianna broke free, she and Stephanie drove with Sophia to a nearby restaurant where
they called the police. Frank fled the scene to avoid arrest. Stephanie and Brianna
reported this was the first time they had known Frank to become physically violent.
       On May 12, 2014, a Department social worker interviewed mother at her
apartment. Mother reported that she had been in a relationship with Frank for about a
year and had shared the apartment with him for two months. She witnessed Frank
arguing with Stephanie and Brianna outside the apartment, but claimed she took Makayla
upstairs before the reported violence occurred. She acknowledged Frank and Stephanie
had a confrontational relationship, and said she did not want them to “drag her into their
mess.” When asked about Makayla’s father, mother said he was not in Makayla’s life,
that Frank had “played the father role,” and that Makayla referred to Frank as “dad.”
       The social worker noted that mother’s apartment appeared free of clutter and
safety hazards and that Makayla was well cared for “in clean matching clothing with
maintained hygiene.” She observed Makayla to be happy running around the home,
playing with both Frank and mother. The social worker performed a complete body
check of Makayla and did not observe any visible bruising on the child.
       On May 13, 2014, the social worker contacted mother about participating in a
safety plan. She explained that Frank’s child, Sophia, had been removed from his care in
a separate dependency proceeding due to the physical assault on Brianna and that the
Department therefore considered Makayla to be at risk due to Frank’s cohabitation in
mother’s apartment. Mother agreed to move out of the apartment until the court hearing
for Sophia.
       On May 19, 2014, the social worker contacted mother again about the safety plan,
following the hearing in Sophia’s dependency case. The social worker reiterated that
since Sophia had been detained from Frank, the Department considered Makayla to be at
risk so long as she continued to share an apartment with Frank. Mother agreed that
Makayla “comes first” and reported that “as of today” Frank would temporarily move out
of the home.


                                             3
       On June 11, 2014, the Department held a team decision meeting with mother to
discuss how Makayla’s case should proceed. The Department noted that mother had a
strong family support system, she provided adequate care for Makayla, and she and
Makayla appeared bonded. On the other hand, the Department expressed concern that
mother did not fully appreciate the risk posed to Makayla by her ongoing relationship
with Frank. Mother said she understood the Department’s concern, but explained that
she did not feel Frank posed a threat to Makayla as he had never been aggressive toward
her or the child. She reported that she remained in a relationship with Frank, but said she
had been abiding by the safety plan and Frank had moved out of the apartment. Mother
was emotional and crying, she felt the Department’s involvement was unwarranted
because “none of the incident [with Frank, Stephanie and Brianna] had to do with her and
yet she and her child [had been] dragged into it.” The Department maintained mother
and Makayla were “involved” and Makayla was “considered at risk” because she “lived
in the home with Frank while his child was detained from his care.” Mother affirmed
Frank would “stay out of the apartment until the court case is over”; she said she was
“tired of being pulled into things that [had] to do with Frank and Stephanie,” she was
upset that those issues were “now affecting her child,” and she “just wanted to have her
family.”
       On June 17, 2014, the social worker visited mother and Makayla at their
apartment. The social worker walked through the apartment and verified that Frank’s
clothing had been removed and he appeared to have moved out. Mother could not
provide an address for Frank as he was “living with different people.” She said they were
still “together,” but she had not spoken with him since he moved out.
       On June 27, 2014, the social worker visited mother and Makayla again at the
apartment. The social worker confirmed that Frank had not moved back into the home.
Mother affirmed she and Frank were still together, but had not been talking much due to
the incident with Stephanie and Brianna. She also provided the social worker with
verification of her enrollment in a parenting class and confirmed she had attended two



                                             4
sessions. The social worker observed Makayla to be clean with maintained hygiene and
no visible marks or bruises on her body.
       On July 2, 2014, the Department filed a non-detain report concerning Makayla.
The report affirmed that mother had moved Frank out of the apartment, she had complied
with all the Department’s demands, including testing negative for drug use, and she had
enrolled in a parenting class. Nevertheless, the Department maintained that mother’s
conduct amounted to “general neglect” as evidenced by the fact that mother “continued to
permit Frank to live in the home even though Frank engaged in an altercation while his
child [Sophia] was present.” The report concluded, “Even though there are no concerns
with mother and her care of Makalya [sic], the department is respectfully requesting a
non-detain by the fact that mother continues to deny that there was a physical altercation
between Frank and his minor sister, Brianna, in the presence of his child, Sofia [sic], and
mother stated that she does not see how Frank is a danger to her child.” The juvenile
court entered the non-detain order and ordered Makayla released to mother’s custody
pending a subsequent hearing.
       On July 21, 2014, the Department filed the operative second amended dependency
petition with the following identical allegations under section 300, subdivisions (a) and
(b): “On 05/14/2014, the child Makayla [M.]’s mother, Crystal [L.]’s male companion,
Frank [Z.] engaged in a violent altercation with an unrelated female, Brianna [H.], in his
child, Sophia’s presence. The male companion struck the unrelated females [sic] face
with the male companion’s fist. The male companion choked and pushed the unrelated
female. The child, Makayla [M.]’s mother, Crystal [L.] has failed to protect the child,
Makayla [M.] as she continues to be involved in a relationship with her current boyfriend,
Mr. Frank [Z.], who continues to reside in the home of mother. The mother’s negligence
endangers the child’s physical health and safety and places the child at risk of physical
harm and damage.” (Italics added.)




                                             5
       On July 25, 2014, the Department filed a Jurisdiction/Disposition Report. The
report reaffirmed the Department’s recommendation that the juvenile court exercise
jurisdiction over Makayla based on the allegations in the petition. In particular, the report
noted that although mother denied Frank was still living in her home, she had posted an
image of herself with Frank to social media on June 30, 2014 with the hash tags
“#mylove #always #forever-with Frank [Z.]” The report also highlighted a July 6, 2014
social media post in which mother referred to Frank as her “hubby” and indicated they
were watching a movie together at a theater in Whittier. Finally, the report noted that
Stephanie and Brianna speculated Frank was still living with mother, since they were
certain he was not living in his car, as he previously stated. Based on the foregoing, the
Department maintained mother was being deceptive about Frank no longer residing in the
apartment with Makayla.
       In advance of the contested jurisdiction hearing, the Department filed two separate
last minute information statements. According to the first, on August 15, 2014, a
dependency investigator assigned to Frank attempted to make an unannounced visit at
mother’s apartment. When no one answered, the investigator left her business card on
the door, with a request that Frank call the Department regarding Sophia. As the
investigator was leaving, she observed a car parked in the apartment complex’s gated
area that matched the description of Frank’s car. The investigator also observed a male
covered in a blanket sleeping in the passenger seat. The male kept himself covered until
the investigator entered her car five minutes later, at which time the male started his car
and left the complex through an opposite entrance. As he was driving away, the
investigator observed a parking sticker on the car’s bumper indicating it was registered to
park in the complex. Based on this incident, the Department maintained Frank was still
living in mother’s apartment.
       On August 18, 2014, three days after the investigator observed Frank’s car in the
apartment complex’s gated area, mother called to advise her social worker that she
recently moved into a one-bedroom apartment with her aunt. In its last minute
information statement, the Department reported that its social worker had visited the new


                                              6
apartment, observed Makayla’s clothes in the bedroom closet, and verified that mother
and Makayla slept in the bedroom, while mother’s aunt slept in the living room.
Mother’s aunt explained that she would allow mother and Makayla to stay with her until
mother found a new apartment. Mother also reported that she had obtained a job and that
the maternal grandmother would babysit Makayla while mother was at work.
         On August 22, 2014, the juvenile court held the contested hearing on the
Department’s petition. The Department submitted on its reports and mother testified on
her own behalf. Mother initially testified that she ended her relationship with Frank in
June, when the court in Sophia’s case determined that Frank had battered his sister
outside mother’s apartment. Mother recanted that testimony on cross-examination, when
she admitted she continued to see Frank in July. She maintained, however, that Frank
had moved out of her apartment, as confirmed by the social worker’s reports, and had no
further contact with Makayla since then. With respect to the recent visit by Frank’s
dependency investigator, mother testified that she found the investigator’s card on her
apartment door and asked her neighbor whether someone had been looking for Frank.
When the neighbor told her the investigator visited and that she believed Frank had been
in the parking lot, mother testified she left the apartment and had not gone back since.
She said Frank did not know where she currently lived and she had no plans to restart a
relationship with him.
         The Department argued its evidence established mother maintained a relationship
with Frank after he struck his sister and, therefore, mother had the burden—“like an
affirmative defense”—to demonstrate the relationship was truly over. The Department
also referred to mother’s past statements in which she said she would keep Frank out of
the house “just [until] the court case closes,” and concluded “we’d like to delay that
occurrence for a little while and have jurisdiction for six months because this minor is at
risk.”




                                              7
       Makayla’s counsel joined with mother’s counsel in arguing the petition should be
dismissed. While Makayla’s counsel acknowledged mother had been “somewhat
reluctant to break off ties” with Frank when the incident occurred, he noted that mother
had since taken significant measures to ensure Frank would have no contact with
Makayla, including going “as far as to leave her residence and move in with a relative
[when] [Frank] had appeared unexpectedly at the complex.” Because mother had
demonstrated her intention to cut off all ties with Frank, Makayla’s counsel argued there
had been no “showing of a future risk of harm for my client.”
       The juvenile court dismissed the allegation under section 300, subdivision (a), but
sustained the allegation under subdivision (b), concluding mother failed to protect
Makayla from a present risk of substantial physical harm. In that regard, the court
emphasized the severity of Frank’s battery upon his sister and mother’s initial failure to
acknowledge Frank’s misconduct. The court also stated it had “some issues with regards
to [mother’s] credibility,” noting that mother maintained ties with Frank after the court in
Sophia’s case made findings confirming his violent conduct. Finally, in view of the fact
that Makayla had referred to Frank as “dada,” and that Frank had been “lingering in the
vicinity” of the apartment, the court concluded “a little bit more monitoring needs to be
made.” Thus, the court sustained the section 300, subdivision (b) allegation and ordered
informal supervision by the Department pursuant to section 360, subdivision (b).
Mother’s counsel and Makayla’s counsel joined in objecting to the section 300,
subdivision (b) finding, reiterating their position that there was no evidence to support the
allegation that Frank “continues to reside in the home of the mother.”




                                             8
                                       DISCUSSION
       In some cases, when a child is placed in the home of a parent, and the parent is
cooperative and able to work with the Department, the juvenile court may order informal
supervision by the Department, in lieu of declaring the child a dependent. (See § 360,
subd. (b); Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2009)
§ 2.124[2], pp. 2-283 to 2-284.) Section 360 authorizes an order for informal supervision
as follows: “After receiving and considering the evidence on the proper disposition of
the case, the juvenile court may enter judgment as follows: [¶] . . . [¶] (b) If the court
finds that the child is a person described by Section 300, it may, without adjudicating the
child a dependent child of the court, order that services be provided to keep the family
together and place the child and the child’s parent or guardian under the supervision of
the social worker for a time period [of six months to a year].” (Italics added.) As the
italicized text plainly states, although the juvenile court does not declare the child a
dependent, it nevertheless must find sufficient evidence under section 300 to take
jurisdiction over the child before the court may order informal supervision pursuant to
section 360, subdivision (b).2




2
        Regarding the relationship between the jurisdictional finding and the order for
informal supervision under section 360, subdivision (b), Seiser and Kumli explain, “If the
court . . . orders a program of informal supervision, it does not dismiss the dependency
petition or otherwise set it aside. The true finding of jurisdiction remains. It is only the
dispositional alternative of declaring the child a dependent that is not made. This is
because if the family is unwilling or unable to cooperate with the services being
provided, the social worker may institute proceedings pursuant to [section] 332 (petition
to commence proceedings), alleging that a previous petition has been sustained and that
informal supervision was ineffective. [Citation.] After hearing the petition, the court
may either dismiss it or order a new disposition hearing . . . .” (Seiser & Kumli, Cal.
Juvenile Courts Practice and Procedure, supra, § 2.124[2], pp. 2-283 to 2-284, citing
§ 360, subd. (c).).


                                              9
       In the instant case, the juvenile court concluded it had jurisdiction pursuant to
section 300, subdivision (b). Under that statute, the juvenile court may subject a child to
the court’s jurisdiction if it finds by a preponderance of the evidence that “[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 a parent’s failure or inability to adequately supervise or protect the
child. (§ 300, subd. (b).)
       “ ‘The statutory definition consists of three elements: (1) neglectful conduct by the
parent in one of the specified forms; (2) causation; and (3) “serious physical harm or
illness” to the minor, or a “substantial risk” of such harm or illness.’ [Citation.] The
third element ‘effectively requires a showing that at the time of the jurisdiction hearing
the child is at substantial risk of serious physical harm in the future (e.g., evidence
showing a substantial risk that past physical harm will reoccur). [Citations.]’ [Citation.]
Section 300, ‘ [“]subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence indicating that the
child is exposed to a substantial risk of serious physical harm or illness.” [Citation.]’ ”
(In re David M. (2005) 134 Cal.App.4th 822, 829 (David M.), italics omitted.)
       Mother contends the Department failed to make the requisite showing that, at the
time of the jurisdiction hearing, Makayla was at substantial risk of serious physical harm
in the future. We agree. As we detailed in our statement of facts, the Department’s
evidence in regard to that showing consisted of the following: (1) on May 5, 2004 when
Frank’s battery upon his sister occurred, Frank shared an apartment with mother and
Makayla, and Makayla referred to Frank as “dada”; (2) within two weeks of the incident,
on May 13, 2014, mother complied with the safety plan formulated by the Department
and moved Frank out of the apartment, as confirmed in two subsequent visits to the
apartment by the Department’s social worker on June 17, 2014 and June 27, 2014;
(3) despite moving Frank out of the apartment, mother continued her relationship with
him, as confirmed by an image of her and Frank posted to social media on June 30, 2014
with the hash tags “#mylove #always #forever-with Frank [Z.]” and a subsequent post on
July 6, 2014 in which mother referred to Frank as her “hubby” and indicated they were


                                              10
watching a movie together outside the apartment; (4) on August 15, 2014, a dependency
investigator observed Frank’s car, with a parking sticker, in the gated area of mother’s
apartment complex and a man (presumably Frank) sleeping in the car’s passenger seat;
and (5) on August 18, 2014, a social worker visited mother at her aunt’s apartment,
confirmed with mother’s aunt that mother and Makayla had moved into the apartment,
and observed Makayla’s clothes hanging in the bedroom closet.
       Drawing all reasonable inferences in favor of the juvenile court’s finding, the
foregoing evidence shows, at most, that mother was initially reluctant but ultimately
committed to moving Frank out of the apartment, she continued her relationship with
Frank but saw him outside the home, and Frank had access to the apartment’s parking
area but mother and Makayla no longer lived in the apartment at the time of the contested
jurisdiction hearing. Even under our deferential standard of review, this evidence does
not establish, as the Department alleged in its petition, that Frank “continue[d] to reside
in the home of the mother,” nor does it support a reasonable inference that mother’s
conduct at the time of the jurisdiction hearing placed Makayla at a present substantial risk
of serious physical harm. (§ 300, subd. (b); David M., supra, 134 Cal.App.4th at p. 829.)
       We understand the trial court’s concern over mother’s early reluctance to
acknowledge the severity of Frank’s misconduct and take appropriate action to protect
Makayla in the direct aftermath of the triggering incident. However, while past neglect
can certainly be an indicator of future risk of harm, mother’s initial reluctance, in light of
her more recent conduct in this case, is not enough to exercise jurisdiction over this child.
“ ‘While 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. [Citations.]’ [Citation.] ‘[P]revious acts of neglect, standing
alone, do not establish a substantial risk of harm; there must be some reason beyond mere
speculation to believe they will reoccur. [Citations.]’ ” (David M., supra,
134 Cal.App.4th at pp. 831-832.) The Department’s evidence, consisting principally of
two three-month-old social media posts, did not permit a reasonable inference that
mother would allow Frank to place Makayla at risk of harm in the future.


                                              11
       Nor is the juvenile court’s credibility finding against mother sufficient to bridge
the evidentiary void. While we will not second guess the “issues” the court had with
mother’s credibility, it is well settled that a plaintiff cannot satisfy its evidentiary burden
merely by casting doubt on the credibility of the opposing party’s testimony. “The
rejection of a witness’s testimony by the trier of fact has only the effect of removing that
testimony from the evidentiary mix. Without more, the disregard or disbelief of the
testimony of a witness is not affirmative evidence of a contrary conclusion. [Citations.]
In other words, the fact that the trier of fact does not credit a witness’s testimony does not
entitle it to adopt an opposite version of the facts which otherwise lacks evidentiary
support.” (Beck Development Co. v. Southern Pacific Transpiration Co. (1996)
44 Cal.App.4th 1160, 1205-1206, italics added.)
       Contrary to the Department’s argument at the jurisdiction hearing, mother did not
bear the burden, “like an affirmative defense,” of proving her relationship with Frank was
truly over. Rather, the Department had the burden of proving, by a preponderance of the
evidence, that mother’s conduct created a current and substantial risk that Makayla would
suffer serious physical harm in the future. (§ 300, subd. (b).) The juvenile court’s
unwillingness to credit some or all of mother’s testimony did not relieve the Department
of its evidentiary burden. And, because the Department failed to meet this burden, the
court had no evidentiary basis for its exercise of jurisdiction. Without jurisdiction, the
court had no authority to subject Makayla to informal supervision under section 360,
subdivision (b).




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                                    DISPOSITION
      The jurisdictional finding is vacated and the informal supervision order is
reversed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, J.

We concur:




                    EDMON, P. J.




                    EGERTON, J. *




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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