In re Nicole K. CA2/2 ( 2022 )

Filed 5/25/22 In re Nicole K. CA2/2
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re NICOLE K. et al., Persons B313289
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 21CCJP01589AB)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
GARY K.,
Defendant and Appellant.
APPEAL from a judgment and orders of the Superior Court
of Los Angeles County, Lisa A. Brackelmanns, Juvenile Court
Referee. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kelly Emling, Deputy County
Counsel, for Plaintiff and Respondent.
******
Gary K. (father) appeals from a judgment of the juvenile
court asserting jurisdiction over his two children, Nicole K. (born
December 2008) and Matthew K. (born December 2015) pursuant
to section 360 of the Welfare and Institutions Code.1 Specifically,
father argues that substantial evidence does not support the
court’s decision to sustain the petition filed pursuant to section
300 and that substantial evidence does not support the trial
court’s order removing the children from father’s custody.
We find the juvenile court’s jurisdictional findings and
removal order are supported by substantial evidence, and we
affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Investigation
The family consists of father, Angelica S. (mother), Nicole
and Matthew.2
On March 18, 2021, the Los Angeles County Department of
Children and Family Services (DCFS) received a referral alleging
emotional abuse by father towards the two children, who were
1 All further statutory references are to the Welfare and
Institutions Code.
2 Mother participated in the proceedings below but is not a
party to this appeal.
2
then 12 and five years old. The reporting party indicated that
mother had called law enforcement after a verbal argument over
finances. Father became upset and pushed mother with one arm
on the right shoulder. Father began throwing items from a shelf
onto the floor. Mother fled into the bedroom and father banged
on the door. The children were present in the living room,
adjacent to the altercation. Father was arrested for
misdemeanor domestic violence, and mother was granted an
emergency protective order. Mother stated that there had been
one prior incident of domestic violence that she did not report.
Father was released on bond with a court date of September 9,
2021. On March 25, 2021, mother obtained a temporary
restraining order against father.
On March 24, 2021, a DCFS social worker contacted
mother to interview her and the children. The interviews took
place at the family’s one-bedroom apartment. Mother, a
hairdresser, had a client in the kitchen. The social worker was
able to privately interview the children in the bedroom.
When asked about the allegations, Nicole appeared
hesitant. The social worker inquired if someone had told her not
to talk about what occurred, and Nicole silently nodded her head
yes. She then claimed not to remember what happened.
Eventually Nicole revealed that she thought her parents were
arguing about money. Her dad knocked over some things on the
shelf, and her mother ran to the bedroom. Her dad then calmed
down. Mother called the police, who took her dad away. Nicole
had not seen or talked to her dad since that day. When the social
worker asked Nicole if this had happened more than one time,
Nicole responded, “I don’t know. I don’t like to remember. They
argue sometimes but I don’t remember.”
3
The social worker attempted to interview Matthew, who
was distracted playing games on his phone. Matthew indicated
he did not know what happened between his parents and did not
know where his father was.
Mother reported that father had behaved this way for many
years. Father pushed mother while she was pregnant and told
her it was an accident. Mother described father as verbally
abusive and rude. When Nicole was about 6 months old, mother
attempted to leave father due to daily abuse, but father begged
forgiveness and said he would change. Mother stayed with father
and things were fine for about a month, until father again
became physical with mother, pushing her and throwing items.
Once father threw an item that hit her foot. Another time when
they were arguing about money, father grabbed her by the
clothes and punched her in the head. During another incident,
father grabbed mother by her clothing while she was driving.
Mother called a women’s agency for help but never followed up
because father threatened her, telling her she would regret it,
that he would never allow a divorce, and that she would “pay for
it.” Father also threatened to call immigration. While mother
was pregnant with Matthew, father became upset and threw a
heavy decoration at mother’s chest. Mother did not call the police
because they were due to go to the hospital that day for
Matthew’s birth. Mother claimed father had “anger problems”
and would get upset over anything.
Regarding the recent incident, mother explained that she
had been saving money for needed dental work. Father objected,
saying she should not waste money and should not do cosmetic
work. Mother said the children were sitting on the couch when
father started throwing objects in mother’s direction. Mother ran
4
and father grabbed another object. Mother locked the bedroom
door and father started banging on it. Mother denied that father
physically hurt the children. Mother has had no contact with
father since the incident.
Mother admitted she had been arrested for theft before she
had children. Mother denied any mental health or medical issues
for the children, but noted Matthew had started having
tantrums. Mother did not want the children learning father’s
behavior. She denied any substance use issues, as well as
physical and sexual abuse of the children.
The following day, the social worker spoke with father, who
stated, “only the money issue is accurate.” Father said mother
had been depleting their mutual account of $700 per month for
dental implants and expensive dental surgery. Prior to the
argument, father asked mother the balance in mother’s private
account several times. Mother had opened the account without
his knowledge. They had texted about the money, and when
father returned from work, mother was pestering him about
going through the mail. Father again asked her to show him the
balance in her account. Father admitted he “got louder, not going
crazy, not sounding like a maniac or anything, mother still
refused.” Father claimed he left mother alone after three
requests. During the encounter father stated some pencils
accidentally fell to the ground, but he “never pushed her in my
life. This is pure fabrication on her behalf, never laid a finger on
her.”
Father said after mother went into the bedroom, he got a
beverage and sat on the desk chair. Father denied attempting to
go into the bedroom. Ten to 15 minutes later, mother came out of
the bedroom and escorted police officers into the residence, who
5
arrested father. Father said the children were on the couch in
the living room playing on the tablet and seemed “unfazed” about
the incident.
Father reported that he was sleeping in his car, that this
was a learning experience for him, and that he desired to “move
past this, get beyond this and be better than we once were.”
Father suggested he could adjust his future behavior and not
allow situations to escalate. Father confirmed that he had been
previously arrested but that those incidents were “nothing like
this.” Father agreed to stay away from the home temporarily.
Mother filed a declaration in support of her request for
restraining order. The declaration stated that on March 18,
2021, father forcibly pushed her and began throwing objects at
her. Mother declared that father frequently emotionally and
physically abused her. The abuse began when mother was
pregnant with her daughter 12 years ago. When mother
threatened to leave father, he responded by telling mother if she
left him she would never see her daughter again. The day
mother gave birth to their son, father threw a metal object at
mother’s chest, which pierced her skin and created a bruise.
When father gets upset, he often throws objects at her, and in the
past, he has hit her. Father threatens to harm mother if she
leaves him, and she has been afraid of the consequences of
leaving him. He has also threatened to separate her from the
family. The abuse has recently worsened and occurs almost
daily.
Los Angeles Police Department log calls revealed the
March 18, 2021 incident resulting in father’s arrest as the only
reported incident.
6
When mother again spoke with the social worker on
April 5, 2021, she confirmed that father was complying with the
restraining order and had not contacted mother or the children.
Section 300 petition and detention
On April 7, 2021, DCFS filed a section 300 petition on
behalf of Nicole and Matthew, alleging that father engaged in
violence with mother, endangering the children and creating a
risk of serious physical harm as defined in section 300,
subdivision (a). The petition also alleged that mother and father
failed to protect the children from father’s violent conduct
pursuant to section 300, subdivision (b)(1). DCFS categorized the
family as being high risk for future abuse and neglect due to the
alleged violence towards mother by father, in the presence of the
children, for many years. Mother reported that father had never
hurt the children but had thrown items in the home while they
were present.
The detention hearing was held on April 12, 2021. The
juvenile court found a prima facie case that the children were
individuals described by section 300. The court ordered the
children released to mother’s home and detained from father.
The court ordered DCFS to conduct unannounced visits to
mother’s home and permitted father to have monitored visits
with the children.
On April 15, 2021, counsel for mother filed a request for a
restraining order on behalf of mother and the children. The
request for a restraining order described the conduct that mother
had reported to the social worker in this matter. In addition, it
was noted that father had a criminal conviction for battery. The
juvenile court granted a temporary restraining order but allowed
father court-ordered visitation with the children.
7
Jurisdiction/disposition report
DCFS filed a jurisdiction/disposition report on June 8,
2021. DCFS obtained the parents’ criminal histories. Mother
was arrested and convicted of petty theft in 2005 and was placed
on 12 months’ probation. Father was arrested and convicted of
misdemeanor battery in 2002 and placed on 36 months’
probation. Father also had arrests for driving under the
influence. There was not yet a record of father’s arrest in March
2021.
A social worker reinterviewed the children at mother’s
residence on May 20, 2021. Nicole stated she did not want
contact with father at all. She was very angry at father and did
not feel comfortable with him. Nicole expressed that father
pushed and hit mother, saying, “I’m mad at him for what he did
to my mom, he hit her, insults her, threatens her to send her
back to Mexico and she will never see the kids.” The child stated
that she is afraid of father. Nicole added that father had hit her
with an open hand on her body when she was bad. Father hurt
her and caused bruises. Matthew was distracted and did not
make any meaningful statement to the social worker. He only
smiled and raised his shoulders.
Mother and father were both reinterviewed by telephone on
April 28, 2021. Mother requested that the restraining order be
permanent, as she was afraid of father. Mother reiterated that
she had suffered years of abuse and lived in constant fear,
starting during her pregnancy with Nicole. Mother stated that
during a recent incident, father threw something at her that hurt
her. Mother explained that father would tell her not to call the
police as they would send her back to Mexico, and she would
never see the children again.
8
Mother claimed that father had been posting lies about
mother on Facebook on a daily basis. Mother added that father
sent Nicole a message through Netflix and then posted Nicole’s
response for him to stay away. Father thought Nicole was being
coached or brainwashed by mother.
Father immediately denied the allegations and stated that
mother was coaching the children to lie about him. Father said
the court admonished mother for coaching Nicole. When asked
about his conviction for battery, father stated that it was battery
to an adult man, not his spouse. Father described the incident as
a bar fight. Father appeared guarded and did not discuss the
details of his relationship with mother. Instead, he continued to
be defensive and say that mother was coaching Nicole. Father
reported he was homeless. Father’s goal was to be reunited with
the family.
DCFS reported that mother was cooperative and had made
efforts to assure the safety and protection of her children.
Mother appeared to provide the children with a safe and
nurturing environment. DCFS took the position that mother’s
home was an appropriate residence for the children, and it was in
the best interests of the children to remain there.
Father had monitored phone calls every Monday for an
hour with Matthew. The phone calls were mostly appropriate,
but father continued to inquire of Matthew as to who used the
tablet. Father was directed to make Matthew the focus of the
visit and not ask about mother or Nicole. Father also attempted
to contact Nicole, who did not want any contact with father.
Nicole was angry, disappointed, and uncomfortable with father.
In summary, DCFS had “serious concerns on the father’s
unresolved mental health issues involving his uncontrollable
9
anger and violent behaviors.” Father strongly denied his
behavior and blamed the mother for lying and coaching Nicole.
DCFS recommended that the children be declared dependents of
the court and that the petition be sustained. DCFS further
recommended that the children be removed from father and
released to mother’s care under DCFS supervision.
Adjudication and disposition
The matter was adjudicated on June 8, 2021. Both parents
were present on Webex and represented by counsel. The court
took judicial notice of all sustained court orders and findings and
the contents of the file.
Counsel for mother asked that the court strike mother from
the failure to protect count, as mother was abiding by the
restraining order and had no intentions of reconciling with
father. Counsel for father argued that the juvenile court lacked
sufficient evidence to suggest there was ongoing violence and the
court had no evidence to sustain either count. Counsel for the
children asked the court to sustain the petition, but to amend it
to state that mother was unable to protect—rather than failed to
protect—the children. Counsel for the children observed that
DCFS met its burden of showing ongoing domestic violence by
father against mother, that father held mother’s immigration
status over her head, and that both children were credible.
Counsel for DCFS joined in requesting that the court sustain the
petition.
Following the arguments of counsel, the juvenile court
found by a preponderance of the evidence that the counts should
be sustained as alleged, with the exception that in count b-1 the
court changed the language regarding mother from “failure to
protect” to an “inability to protect.” The court noted that it was
10
clear that the domestic violence had been ongoing, with father
the aggressor. The court further noted that Nicole was credible
when she described the domestic violence. The court believed
that, in contrast to father’s accusations against mother, father
was the one inappropriately trying to contact Nicole and coach
her through social media.
The juvenile court declared the children dependents of the
court, to be maintained in mother’s custody and removed from
father. Mother was ordered to participate in a domestic violence
support group. Mother was not to monitor father’s visits with the
children and was to abide by all protective orders. Father was to
participate in a 26-week domestic violence program, parenting,
individual counseling, and conjoint counseling with Nicole when
recommended by her counselor. Father was permitted monitored
visitation with the children.
Appeal
On June 9, 2021, father timely appealed from the
declaration of dependency and accompanying order removing the
children from his custody. Father also sought review of the
jurisdictional findings.
DISCUSSION
Father challenges the sufficiency of the evidence to support
the two jurisdictional findings. He also challenges the juvenile
court’s decision removing the children from his custody.
I. Jurisdictional findings
A. Standard of review
A juvenile court’s jurisdictional findings are reviewed for
substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) We
must consider the entire record to determine whether substantial
11
evidence supports the juvenile court’s jurisdictional findings. (In
re Savannah M. (2005) 131 Cal.App.4th 1387, 1393
(Savannah M.), abrogated on other grounds in In re R.T. (2017) 3
Cal.5th 622, 628.)
Under the substantial evidence standard, we determine “if
substantial evidence, contradicted or uncontradicted,” supports
the juvenile court’s decision. (In re Heather A. (1996) 52
Cal.App.4th 183, 193, abrogated on other grounds in In re R.T.,
supra, 3 Cal.5th at p. 628.) “In making this determination, we
draw all reasonable inferences from the evidence to support the
findings and orders of the dependency court; we review the record
in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial
court.” (Ibid.)
Substantial evidence is not synonymous with any evidence.
(Savannah M., supra, 131 Cal.App.4th at p. 1393.) Although
substantial evidence may consist of inferences, those inferences
must be the products of logic and reason and must be based on
the evidence. Inferences that are the result of mere speculation
or conjecture cannot support a jurisdictional finding. (In re
James R. (2009) 176 Cal.App.4th 129, 135 (James R.), abrogated
on other grounds in In re R.T., supra, 3 Cal.5th at p. 628.) The
ultimate test is whether a reasonable trier of fact would make the
challenged ruling considering the whole record. (Savannah M.,
supra, at pp. 1393-1394.)
B. Substantial evidence supported the
jurisdictional finding under section 300,
subdivision (a)
A juvenile court may take jurisdiction of a child under
section 300, subdivision (a), if “the child has suffered, or there is a
12
substantial risk that the child will suffer, serious physical harm
inflicted nonaccidentally upon the child by the child’s parent or
guardian.”
The petition in this matter alleged under count a-1 that
father and mother had a history of engaging in violent
altercations in the presence of the children. On March 18, 2021,
father threw items in mother’s direction in the presence of the
children, banged on the door when mother locked herself in the
bedroom, and was later arrested. On prior occasions, father
grabbed mother’s clothes and struck her head. Father pushed
mother while she was pregnant and threw an object at her chest
while she was pregnant. The petition alleged that this violent
conduct by father against mother endangers the children’s
physical health and safety, creates a detrimental home
environment, and places the children at risk of serious physical
harm, damage and danger.
Father argues that to support jurisdiction under section
300, subdivision (a), there must be evidence in the record of “a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child’s siblings, or a
combination of these and other actions by the parent or guardian
which indicate the child is at risk of serious physical harm.” (In
re Marquis H. (2013) 212 Cal.App.4th 718, 724-725.) Father
argues no such evidence exists in the record. He asserts there
was no showing that he ever caused Nicole or Matthew harm.
Father further argues there was no showing of any present risk
of harm. Father had voluntarily moved out of the family
residence and had showed good insight into avoiding conflict in
the future by deescalating any potentially volatile situations.
13
Father had respected and followed the court’s orders requiring
that he stay away from the home. Father argues there was no
evidence that the children were at current risk of nonaccidental
harm as required by section 300, subdivision (a).
Substantial evidence in the record supports the juvenile
court’s decision that Nicole and Matthew are children described
by section 300, subdivision (a). The evidence supports a finding
that father and mother engaged in domestic violence while the
children were present in the same room. The violence included
father hurling objects at mother. Mother also reported that
father had previously pushed her, thrown objects at her, struck
her head, and threatened her. There was evidence that the
violence had been occurring over the course of 12 years. Because
the family lived in a one-bedroom apartment and the domestic
violence occurred over the time frame of 12 years, starting when
mother was pregnant with Nicole, it was reasonable for the
juvenile court to infer that this past violence occurred in the
presence of the children. In fact, Nicole testified that “father
pushes and hits her mother.” Nicole further testified that she
was afraid of father, who “likes to throw things at her mom.”
Nicole’s testimony, which documented her fear of father’s
violence, was sufficient to show a risk of harm to the children.3
The juvenile court was entitled to believe this evidence. Given
the long history of violence on the part of father towards mother,
with at least some of the violence carried out in the presence of
the children, the juvenile court reasonably concluded that the
3 As DCFS points out, there was also evidence that father
grabbed mother while she was driving, which could have
endangered the children if they were present, which was not
specified.
14
children were at substantial risk of harm inflicted
nonaccidentally.
It is established that children’s exposure to domestic
violence can be a basis for jurisdiction under section 300,
subdivision (a). (In re Giovanni F. (2010) 184 Cal.App.4th 594,
598-599 [“the application of section 300, subdivision (a) is
appropriate when, through exposure to a parent’s domestic
violence, a child suffers, or is at substantial risk of suffering,
serious physical harm inflicted nonaccidentally by the parent”].)
A child need not suffer actual harm, but must only be at risk of
harm. (In re J.K. (2009) 174 Cal.App.4th 1426, 1435 [“current or
future risk to the child is relevant; it is an alternative basis for
jurisdiction under section 300, subdivision[] (a)”].)
Father argues that he was following the court’s orders that
he stay away from mother and the children. However, evidence
in the record suggested that father failed to acknowledge his
actions and intended to reunite with the family against mother’s
wishes. Father completely denied mother’s allegations, although
the juvenile court found them to be credible. When interviewed,
father insisted he “has never laid hands on the mother.” The
court noted, “There’s no indication, at this time, that father has
any insight into the domestic violence that had occurred in his
relationship. He minimizes it.” At the same time he denied or
minimized his violent actions, father expressed a desire to
reunite with mother and the family. Finally, despite a
restraining order, there was evidence that father attempted to
contact Nicole against her wishes.
Given father’s long history of violent behavior, his failure to
show any insight into the serious nature of his behavior, and his
intention to reunite with the family against their wishes, there
15
was substantial evidence supporting the juvenile court’s finding
that the children were at serious risk of physical harm under
section 300, subdivision (a).
C. Substantial evidence supported the
jurisdictional finding under section 300,
subdivision (b)
A juvenile court may take jurisdiction of a child under
section 300, subdivision (b)(1), where the child has suffered, or
there is a substantial risk the child will suffer, serious physical
harm or illness as a result of the failure or inability of his or her
parent or legal guardian to protect the child adequately, or as a
result of the willful or negligent failure of the child’s parent or
legal guardian to supervise or protect the child from the conduct
of the custodian with whom the child has been left.
The petition alleged identical allegations under count b-1
as alleged under count a-1. Under count b-1, the petition
asserted that “[t]he violent conduct by the father against the
mother and the mother’s failure to protect the children endanger
the children’s physical health and safety, creates a detrimental
home environment, and places the children at risk of serious
physical harm, damage, danger and failure to protect.”
Father again challenges the juvenile court’s finding that
the record contained sufficient evidence that the children were at
risk of harm from domestic violence. Father points out that
circumstances existing at the time of the jurisdiction hearing
must show it is likely that the children will suffer serious harm
in the future. (In re Carlos T. (2009) 174 Cal.App.4th 795, 806.)
Father cites James R., supra, 176 Cal.App.4th at page 137,
abrogated on other grounds in In re R.T., supra, 3 Cal.5th at page
628, for the proposition that “[p]erceptions of risk, rather than
16
actual evidence of risk, do not suffice as substantial evidence.”
Father again argues that he was not having unauthorized contact
with mother or otherwise violating the terms of the restraining
order. Thus, father argues, at the time of the jurisdiction
hearing, there was no evidence showing that the children were at
substantial risk of suffering serious future harm. Father cites In
re Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.), for the
proposition that “[p]hysical violence between a child’s parents
may support the exercise of jurisdiction under section 300,
subdivision (b) but only if there is evidence that the violence is
ongoing or likely to continue and that it directly harmed the child
physically or placed the child at risk of physical harm.”
As set forth above, father’s acts of throwing objects at
mother while the children were present put them at risk of harm.
Father’s previous acts of aggression towards mother, including
pushing, striking, grabbing, and threatening her, also placed
them at risk of harm. Daisy H. is distinguishable. In Daisy H.,
the mother pointed to a single act of violence that occurred seven
years before the petition was filed that took place outside the
presence of the children. (Daisy H., supra, 192 Cal.App.4th at
p. 717.) That father never acted violently in front of the children,
and the parents were separated with no plans to reconcile. (Ibid.)
Here, in contrast, father had a 12-year history of abusive
acts against mother in the presence of the children, including the
recent reported incident. In addition, in contrast to the father in
Daisy H., father in this matter expressed a desire to reconcile and
reunite with his family. There was evidence that father had
attempted to contact Nicole in violation of the restraining order.
Father lacked insight into his actions—in fact, he denied the
allegations completely. The juvenile court had sufficient evidence
17
before it to conclude that father would continue his attempts to
reconcile with his family without addressing the behavior set
forth in the petition.
In contrast to Daisy H., this record supported the juvenile
court’s findings that the children were at current risk of harm
under section 300, subdivision (b).
II. Removal order
A. Standard of review
To remove a child from parental custody under section 361,
subdivision (c)(1), DCFS must prove by clear and convincing
evidence that there is or would be a substantial danger to the
child’s physical health, safety, protection, or physical or
emotional well-being, and no reasonable way to protect the child
from these dangers in the parent’s home. “This is a heightened
standard of proof from the required preponderance of evidence
standard for taking jurisdiction over a child.” (In re Hailey T.
(2012) 212 Cal.App.4th 139, 146 (Hailey T.).) “Clear and
convincing evidence” has been defined as evidence requiring “a
high probability, such that the evidence is so clear as to leave no
substantial doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684,
695.)
“The standard of review of a dispositional order on appeal
is the substantial evidence test.” (Hailey T., supra, 212
Cal.App.4th at p. 146.) In assessing juvenile court error
concerning removal of a child from a parent, we must apply the
substantial evidence test “‘bearing in mind the heightened
burden of proof.’” (Ibid.) In other words, we must determine
“whether the record as a whole contains substantial evidence
from which a reasonable fact finder could have found it highly
probable that the fact was true.” (Conservatorship of O.B. (2020)
18
9 Cal.5th 989, 995-996.) At the same time, we still must “view
the record in the light most favorable to the prevailing party
below and give due deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts in the
evidence, and drawn reasonable inferences from the evidence.”
(Id. at p. 996.)
B. Substantial evidence supports the juvenile
court’s removal order
Father argues that in this case, there was no substantial
evidence to support the court’s finding by clear and convincing
evidence that the children’s safety required removal from father’s
custody. Specifically, father argues that substantial evidence did
not support the juvenile court’s decision that there was a
substantial danger to the children’s welfare without removal, and
that the record showed there were available reasonable measures
to safely maintain the children with father.
Father relies on In re I.R. (2021) 61 Cal.App.5th 510, 520
(I.R.), where the court stated, “A finding of parental abuse cannot
alone provide the clear and convincing evidence necessary to
justify removing a child. [Citations.] Rather, the juvenile court
must determine whether a child will be in substantial danger if
permitted to remain in the parent’s physical custody, considering
not only the parent’s past conduct, but also current
circumstances, and the parent’s response to the conditions that
gave rise to juvenile court intervention.” The I.R. court
recognized the serious threat domestic violence poses to a child’s
physical and emotional well-being, but found that the level of
father’s domestic violence in that case did not warrant removal of
I.R. from the father’s care. The I.R. court reasoned, “nothing in
the record suggests father has ever been violent or aggressive
19
outside the context of his relationship with mother, nor that he is
a generally violent, aggressive, or abusive person. The nature
and frequency of the domestic violence incidents—two instances
in which father slapped mother, the second of which also involved
him throwing a baby shoe at her—do not support a reasonable
inference that he is a generally violent or abusive person.” (Id. at
p. 521.) The court thus concluded that there was danger to I.R.
only if the domestic violence between mother and father was
likely to continue. The father did not live in the family home,
had stayed away from mother, and had not expressed a desire or
willingness to reconcile with mother. (Ibid.)
The present matter is different. Here, father lived in the
family home for at least 12 years and had engaged in acts of
violence toward mother consistently throughout that time. He
had a prior conviction for battery—demonstrating that his
violence was not limited to violence against mother. In addition,
father expressed a desire to reconcile with mother and had
attempted to contact Nicole in violation of her wishes and in
violation of the restraining order. Father was homeless and
appeared to have no plan other than reconciling with mother and
the children. In contrast to the facts in I.R., Nicole expressed
that she is afraid of father, stating that father had hit her and
hurt her. The juvenile court in this matter noted that it found
Nicole to be particularly credible, stating:
“Nicole clearly has strong feelings about . . .
what she saw happen with her father, what she’s
seen in the home. I’m sure that at the detention
report Nicole . . . was not able to open up clearly
about everything that was happening in the home.
And now that father has not been in the home, Nicole
has been able to open up more about things that were
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occurring and what she has experienced and what
she’s seen her father do to her mother.
“I would reject father’s argument that Nicole is
not credible. I do find Nicole to be credible.”
Furthermore, father refused to acknowledge ever engaging
in domestic violence. As the juvenile court noted, father had not
demonstrated “any insight into the domestic violence that had
occurred in his relationship.” “One cannot correct a problem one
fails to acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th
188, 197.) Given father’s history of domestic violence, his
intention to reunite with his family, and his failure to
acknowledge his violent actions, substantial evidence supported
the juvenile court’s determination that there existed clear and
convincing evidence that placing the children in father’s custody
would create a substantial danger to the children, and that there
were no other reasonable means to protect the children.
DISPOSITION
The judgment and dispositional orders are affirmed.
________________________
CHAVEZ, J.
We concur:
________________________ ________________________
LUI, P. J. HOFFSTADT, J.
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