Los Angeles County Department of Children & Family Services v. I.S. ( 2016 )

Filed 1/7/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re F.S., a Person Coming Under the B260760
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK98545)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
I.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Tony L.
Richardson, Judge. Affirmed.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant County
Counsel, Jessica Paulson-Duffy, Deputy County Counsel, for Plaintiff and Respondent.
Mother I.I. and Father I.S. are parents of a daughter, F.S., who was born in 2010.
The parents have a history of domestic violence, and when the Department of Children and
Family Services (DCFS) learned that Mother and Father had been involved in a physical
altercation in March 2013, the juvenile court assumed dependency jurisdiction over F.S. and
ordered her placed in Mother’s home. While dependency proceedings were ongoing,
Mother and Father were involved in another physical altercation, and police arrested Mother
as the aggressor. After her arrest, Mother took F.S. to Texas without notifying the social
worker. The juvenile court issued an arrest warrant for Mother and a protective custody
1
warrant for F.S., and DCFS filed a Welfare and Institutions Code section 387 petition to
remove F.S. from Mother’s physical custody. While Mother and F.S. were absent from the
2
jurisdiction, the juvenile court held a hearing on the petition and ordered F.S. removed.
Father appeals from the juvenile court’s removal order and asks us to decide (1) whether the
juvenile court erred in proceeding with the section 387 hearing in Mother’s absence, and (2)
whether the court’s decision to sustain the section 387 petition and remove F.S. from
Mother’s custody is supported by sufficient evidence.
BACKGROUND
A. Events Prior to the Challenged Section 387 Hearing and Removal Order
1. The family comes to the attention of DCFS
On March 18, 2013, Mother was getting F.S. ready for school and Father struck
Mother in the face, causing a nosebleed. Mother contacted the police and sought medical
attention, and police arrested Father. Father asserted the incident was an accident. The
District Attorney’s office declined to file charges against Father.
1
Undesignated statutory references that follow are to the Welfare and Institutions
Code.
2
As we later explain, DCFS subsequently secured F.S.’s return to California.
2
DCFS was notified of the incident and assigned a social worker to investigate. After
reviewing the police report, DCFS learned that there had been prior episodes of domestic
violence between Mother and Father. The DCFS social worker asked Mother about these
prior incidents. Mother disclosed that in 2011, she was arrested because she bit Father; F.S.
was present during the altercation. Mother pled guilty and the court ordered her to complete
52 weeks of domestic violence classes. Mother also told the social worker about a second
incident in 2012 when she was asleep with F.S. in the bed and awoke to find Father
standing over her with a knife. She claimed Father cut her shirt and threatened to kill her.
Mother got up and called 911.
In addition to interviewing Mother, the social worker visited Mother’s apartment.
The social worker saw that F.S. had a crib and that the parents slept in separate bedrooms.
There was a hole in the door to Father’s bedroom. Mother told the social worker the hole
“was from another time when we were fighting. I don’t remember what happened.”
Mother told the social worker she wanted to get away from the situation and move to Texas
to be with her family.
The social worker also spoke to the teacher at F.S.’s preschool. The teacher said that
F.S. came to school well dressed and well groomed, and the teacher told the social worker
that she had not seen any marks or bruises on F.S.
2. DCFS files, and the juvenile court sustains, a section 300 petition
DCFS filed a section 300 petition alleging that F.S. came within the jurisdiction of
the juvenile court under section 300, subdivisions (a) and (b) because of the history of
domestic violence between Mother and Father, including the episode on March 18, 2013.
At a detention hearing on the petition, the juvenile court made detention findings against
Father and ordered F.S. detained and placed with Mother. The court ordered family
maintenance services, and Father was given monitored visitation.
3
3
At the adjudication hearing on the section 300 petition, Mother and Father did not
contest the petition’s allegations. The juvenile court dismissed the count under subdivision
(a) and sustained the count under subdivision (b). The court ordered monitored visitation
for Father, as well as domestic violence and parenting classes. The court ordered an
assessment under the Interstate Compact on the Placement of Children (Family Code
section 7900 et seq.) in connection with Mother’s stated desire to move to Texas. The
court, however, ordered that no one may take F.S. out of the state of California without
notifying the social worker. The juvenile court also ordered Mother to make herself and the
child available to DCFS for child welfare contacts, and to make F.S. available for
unannounced home calls. Mother signed the case plan order listing these obligations. In
the weeks following the adjudication hearing, Mother told the social worker that the
criminal court would not allow her to move to Texas.
3. Additional incidents between Mother and Father, and Mother takes
F.S. to Texas
The juvenile court scheduled a six-month review hearing to take place in November
2013. Before the hearing, DCFS learned that Father made a “keep the peace” call to police
on August 4, 2013, because he was at Mother’s apartment to pick up his belongings and
Mother was being uncooperative. DCFS also learned that four days later, on August 8,
Mother called the police claiming Father and his friends were knocking on her front door
and refused to leave. When the police arrived, the door appeared to have been kicked, but
Mother told the police she did not need their help. DCFS discovered both incidents in
August by obtaining police records; neither Mother nor Father reported the incidents when
communicating with DCFS.
3
A reporter’s transcript of the adjudication hearing is not included in the record.
The record does include the minute order issued by the court in connection with the
hearing, and we summarize the proceedings based on that order.
4
The juvenile court continued the six-month review hearing from November 2013 to
January 2014, and DCFS filed an updated report in advance of the continued hearing.
According to the report, Mother was meeting all of F.S.’s basic, emotional, medical, and
educational needs. The report, however, stated that the “parents have made little progress
with court ordered programs since the last court hearing on [November 22, 2013].” Father
had not been attending visitation, and he told the social worker that, culturally, monitored
visitation was viewed negatively and was a sign of weakness. Mother was in partial
compliance with the order to attend domestic violence classes; although she had completed
the classes, she had not finished paying for them. Mother had attended two parenting
classes, and the instructor was concerned with Mother’s level of commitment. Father had
not enrolled in any court-ordered classes, nor had he enrolled in court-ordered counseling.
At the six-month review hearing, the court ordered DCFS to continue to provide
reunification services to the parents, and the court set the next review hearing for July 31,
2014.
On April 19, 2014, police responded to Father’s apartment. Mother—who had
brought F.S. to the apartment with her—engaged in a violent confrontation with Father.
Father’s face was bleeding and he had blood on his clothing; he reported that Mother had
thrown a phone at him, striking him on his forehead, during the course of an argument.
Mother was in a rear bedroom of the apartment and had scratches on her inner right arm.
Mother gave police a false name, “Grace.” Police determined Mother was the aggressor in
the altercation and arrested her.
DCFS contacted Mother by phone after learning about the incident. Mother
claimed—falsely—that she was not the “Grace” that had been arrested by the police.
Mother also stated she no longer resided in California, claiming her attorney had given her
permission to leave the state. During the phone call, Mother refused to tell DCFS where
she was residing, and when the social worker told her she did not get permission to leave
the state with F.S., Mother insisted she did and hung up the phone. In a subsequent phone
5
call, Mother told DCFS she was living in Dallas, Texas, but she refused to provide her
address.
B. The Court Holds a Hearing on a Supplemental Petition Filed by DCFS and
Removes F.S. from Mother’s Custody
DCFS filed a section 387 supplemental petition based on the April 19, 2014,
domestic violence incident between Mother and Father. The petition alleged Mother failed
to protect F.S. by continuing to have contact with Father, engaging in domestic violence
4
with Father, and allowing Father unlimited access to F.S. Based on information that
Mother had taken F.S. to Texas without permission, the court issued a protective custody
warrant for F.S. and an arrest warrant for Mother. The court ordered F.S. detained and set
the matter for hearing on July 31, 2014.
DCFS interviewed Mother by telephone in advance of the next court hearing.
Mother continued to falsely deny she had been involved in the April 19, 2014, domestic
violence incident with Father. She claimed the “Grace” referred to in the police reports was
her step-sister who was visiting California from Africa. Mother also claimed she was
already in Texas on April 19, 2014—the date of the incident. DCFS also spoke to Father,
and he likewise falsely claimed Mother was not involved in the April 19, 2014, altercation.
4
The sole count of the supplemental petition states: “The child [F.S.]’s mother,
[I.I.] aka [‘Grace’] and father, [I.S.], have a history of engaging in violent altercations in
the presence of the child. On 04/19/2014, the father pushed the mother’s head and arm
and pulled the mother inflicting scratches to the mother’s arms and finger. The father
pushed the mother and struck the mother’s head with a phone. The mother threw a phone
at the father’s head inflicting a bleeding laceration to the father’s forehead. On
04/19/2014, the mother was arrested on charges of Inflict Corporal Injury;
Spouse/Cohabitant. The mother failed to protect the child in that the mother continued to
have contact with the father, engaged in domestic violence and allowed the father to have
unlimited access to the child despite a restraining order. Such violent altercations on the
part of the mother and the father and the mother’s failure to protect the child endanger the
child’s physical health and safety and place the child at risk of physical harm, damage,
danger and failure to protect.”
6
Father told DCFS that the “Grace” who was involved was Mother’s twin sister (not her
step-sister, as Mother had told DCFS).
Counsel for all parties appeared in court on July 31, 2014, the scheduled date for the
hearing on the section 387 petition. Reports submitted by DCFS advised the juvenile court
that Mother remained at large with F.S. and was reportedly living at an address in
Richardson, Texas. The court ordered the warrants for Mother and F.S. to remain in full
force and effect and scheduled a contested hearing on the section 387 petition to take place
on December 3, 2014.
Roughly a week before the scheduled December 3 hearing, the social worker
contacted Mother by phone. Mother confirmed that she remained in Texas with F.S., and
Mother stated she was aware of the upcoming December 3 court date. The social worker
asked Mother if she planned to be present for the hearing and Mother stated she was not
sure because the court has refused to lift the outstanding arrest warrant. Mother told the
social worker that she and F.S. were doing well.
At the December 3, 2014, hearing, Mother and F.S. were not present. DCFS stated it
was in contact with Mother and had her address and phone number. Mother’s counsel
informed the court that Mother “essentially indicated that she’s got no intention of returning
to California to answer to the allegations in the petition, in person at least.” Mother’s
counsel conceded the court could conduct the adjudication portion of the hearing without
Mother and F.S. being present, but counsel argued the juvenile court should not proceed to
disposition. Father’s attorney objected to going forward on the petition in any respect,
arguing that Mother was not available for cross-examination regarding the accusation in the
supplemental petition that Father pushed her during the April 19 altercation. Father also
argued, relying on In re Baby Boy M. (2006) 141 Cal. App. 4th 588 (Baby Boy M.), that it
would be improper for the court to assert jurisdiction and make findings related to F.S.
because the court did not have sufficient information about her current status. The court
trailed the matter to consider whether it could rule on the petition in Mother’s absence.
7
The following day, December 4, Father and counsel for all parties were again
present in court. Father’s attorney continued to object to going forward with the hearing.
Father’s counsel believed sustaining the section 387 petition would not move the case
forward any better than the warrants that were already issued and in place.
The juvenile court ruled it would proceed with the hearing on the section 387
petition, which “really relates to a placement issue with respect to the mother, not the
father.” The court explained jurisdiction over F.S. had already been established via the
section 300 petition, and it reminded the parties it had already found that placing F.S. in the
home of Father would be contrary to her welfare. The court concluded Baby Boy M. was
inapposite because that case involved a section 300 petition, not a section 387 petition filed
after the court has already established jurisdiction over the child. The court further found,
citing In re Claudia S. (2005) 131 Cal. App. 4th 236 (Claudia S.), that the disentitlement
doctrine barred Mother’s argument that the court could not move forward with the hearing.
The court rejected Father’s argument that cross-examination of Mother was essential,
stating Father was present and the court would hear any argument he may make. The court
also disagreed with Father’s argument that the outstanding warrants were a sufficient means
to move the case forward and protect F.S.: “[I]n the court’s view, [DCFS’s petition] seeks
to modify an earlier dispositional order by establishing the need for [a] more restrictive
level of custody because of the conduct in which the Mother has engaged here in California
prior to Mother going to Texas and vowing not to return to California.”
On the merits of the petition, the juvenile court admitted DCFS reports into evidence
without objection and granted Father’s request to testify. Father testified that on April 19,
2014, he and Mother had an argument about a car. After initially denying the argument
became physical, Father admitted on cross-examination that Mother threw a phone at him
and that F.S. was in the house at the time. Father admitted he lied to the social worker when
he claimed to have fought with Mother’s “twin sister.” Father also revealed he had spoken
to F.S. in Texas and stated that she was residing with Mother, was going to school, and had
reported no concerns.
8
After the presentation of evidence, DCFS urged the court to sustain the petition as
pled based on the physical violence between the parents in F.S.’s presence and Mother’s
failure to be forthcoming with DCFS about the domestic violence between her and Father.
Counsel for DCFS requested reunification services and monitored visitation, and counsel
for F.S. concurred.
Father requested dismissal based upon a claimed “lack of nexus” between the
domestic violence incident occurring in April 2014 and the circumstances at the time of the
hearing. That is, Father argued Mother and F.S. were living in a different state and the
incident roughly eight months earlier had, in his view, little bearing on F.S.’s safety. Father
urged the court to strike the allegations against him from the section 387 petition and to
refrain from ordering additional reunification services for him. Mother’s counsel similarly
argued a “lack of nexus,” contending Mother was in Texas and there was nothing in DCFS
reports describing F.S.’s then-existing condition or whether she was at risk.
The juvenile court sustained the section 387 petition as alleged. The court found that
its previous disposition had not been effective in protecting F.S., and that F.S.’s earlier
placement with Mother was no longer appropriate. The court also disagreed that there was
no current risk to F.S. if she remained with Mother.
The juvenile court made an express finding, by clear and convincing evidence, that
the circumstances described by section 361, subdivision (c)(1) were present and ordered
F.S. removed from Mother’s custody. The court directed DCFS to ensure she was suitably
placed. The court ordered monitored visitation for Father and ordered him to participate in
a domestic violence program. The court also directed DCFS to make every effort to obtain
5
the support of the Texas child services agency to expedite the return of F.S.
5
The court stated: “[N]ow that we’ve reached disposition, there’s no reason why
[DCFS] cannot, for all practical purposes, seek the cooperation of Texas authorities to
check on mother and the child’s circumstances. I don’t know if Texas is a state that
requires that California reach disposition before it will get involved. But if it does, then
we’re at that point.”
9
C. Post-Appeal Proceedings
Father filed a notice of appeal on December 8, 2014, challenging the findings and
orders made by the juvenile court during the hearing on the section 387 petition.
After Father filed a notice of appeal (Mother did not appeal), this court took judicial
6
notice of subsequent proceedings at DCFS’s request. DCFS successfully worked with
Texas authorities and obtained the return of F.S. to California on March 19, 2015. The
juvenile court thereafter ordered the warrants recalled because F.S. had been returned to
California and suitably placed.
DISCUSSION
When an agency seeks to change the placement of a dependent child from a parent’s
care to a more restrictive placement, such as foster care, it must file a section 387 petition.
(In re T.W. (2013) 214 Cal. App. 4th 1154, 1161.) The petition must allege facts that
establish by a preponderance of the evidence that a previous disposition order was
ineffective, but it need not allege any new jurisdictional facts or urge additional grounds for
dependency because the juvenile court already has jurisdiction over the child based on its
findings on the original section 300 petition. (Ibid.; In re A.O. (2010) 185 Cal. App. 4th 103,
110.) If the court finds the allegations are true, it conducts a dispositional hearing to
determine whether removing custody is appropriate. (In re T.W., supra, at p. 1161, citing In
re H.G. (2006) 146 Cal. App. 4th 1, 11; see also In re Javier G. (2006) 137 Cal. App. 4th 453,
462; In re Miguel E. (2004) 120 Cal. App. 4th 521, 542.) “‘The ultimate “jurisdictional fact”
6
“Appellate courts rarely accept postjudgment evidence or evidence that is
developed after the challenged ruling is made. (See In re Zeth S. (2003) 31 Cal. 4th 396,
405, 413-414 [].)” (In re Sabrina H. (2007) 149 Cal. App. 4th 1403, 1416.) Nonetheless,
post-judgment evidence is admissible for the limited purpose of determining whether any
subsequent developments have rendered an appeal partially or entirely moot. (See In re
Karen G. (2004) 121 Cal. App. 4th 1384, 1390.) We limit our consideration of the
judicially noticed documents to mootness issues.
10
necessary to modify a previous placement with a parent or relative is that the previous
disposition has not been effective in the protection of the minor.’” (In re A.O., supra, at
p. 110.)
Father challenges the juvenile court’s order removing F.S. from Mother’s physical
7
custody. Procedurally, he argues the court should not have held a hearing on the section
387 supplemental petition in Mother’s absence. Substantively, he argues the court’s order
removing F.S. from Mother’s custody is not supported by sufficient evidence, largely based
on the claim that F.S.’s absence from the jurisdiction deprived the court of sufficient
information about her then-current condition. DCFS concedes Father has standing on
appeal to challenge the juvenile court’s findings and orders on the section 387 petition,
citing In re H.G., supra, 146 Cal.App.4th at p. 10, but DCFS contends the juvenile court’s
removal order was procedurally and substantively proper. We agree with DCFS and affirm.
A. The Juvenile Court Did Not Prejudicially Err by Proceeding in Mother’s
Absence
A parent has a right to due process in dependency proceedings, including the right
to confront and cross-examine witnesses in many circumstances. (In re Ingrid E. (1999)
75 Cal. App. 4th 751, 756-757 [right to confront and cross-examine witnesses, “at least at
the jurisdictional phase”]; In re Amy M. (1991) 232 Cal. App. 3d 849, 864.) Due process
“is a flexible concept which depends upon the circumstances and a balancing of various
factors.” (In re Jeanette V. (1998) 68 Cal. App. 4th 811, 816-817, citing In re Sade C.
(1996) 13 Cal. 4th 952, 992.) Father argues the juvenile court’s decision to go forward
with the section 387 hearing in Mother’s absence trammeled his due process right to
cross-examine Mother and contravened principles established in Claudia S. and Baby
Boy M.
7
Father’s opening brief also challenged the warrants issued by the juvenile court for
Mother and F.S. Now that F.S. has been returned to California and the court has recalled
the warrants, Father concedes the issue is moot.
11
1. Cross-examination
The juvenile court accorded the parties substantial evidentiary process at the
section 387 hearing: Father testified, and the court offered him and counsel for all parties
the opportunity to introduce additional evidence, if desired. Although due process in
dependency proceedings is a flexible concept, we assume for purposes of our discussion
that under the circumstances Father had a due process right to cross-examine Mother. We
hold, however, that any error in proceeding with the hearing—which necessarily deprived
Father of his right to cross-examine Mother because she was unavailable—was not
prejudicial.
Father’s proffered reason for cross-examining Mother—to attempt to disprove the
allegation that he pushed, scratched, and struck Mother during the April 19, 2014,
domestic violence incident—establishes that such cross-examination could not have
affected the juvenile court’s determination of the supplemental petition. By the time of
the section 387 hearing, the juvenile court had already established jurisdiction over F.S.
pursuant to the earlier section 300 petition. Father did not contest that jurisdictional
finding, and the juvenile court had already made adverse findings against Father and
ordered F.S. removed from his custody. Having done so, the sole question before the
juvenile court on the supplemental petition was whether it should change its prior order
and order F.S. removed from Mother’s physical custody as well. The issue of whether
Father caused injuries to Mother during the most recent domestic violence incident was
immaterial to that determination. Even if the juvenile court continued the hearing (until
some unknown date when Mother was present), and even if Mother admitted Father did
not push her or scratch her arms, there was no dispute that the parents had again engaged
in domestic violence in F.S.’s presence when Mother threw a phone at Father. Cross-
examination of Mother on Father’s actions during the altercation therefore would not
have affected the outcome of the hearing, and the decision to go forward without Mother
as a witness was not prejudicial under even the more stringent standard of harmlessness
review. (See In re Amy M., supra, 232 Cal.App.3d at p. 868 [assessing whether error
12
harmless beyond a reasonable doubt]; cf. In re Jeanette V. (1998) 68 Cal. App. 4th 811,
817 [explaining a court may request an offer of proof if cross-examination appears to be
irrelevant and holding cross-examination was not required based on the offer of proof].)
2. Claudia S. and Baby Boy M.
Father argues, citing Claudia S., supra, 131 Cal. App. 4th 236 and Baby Boy M.,
supra, 141 Cal. App. 4th 588, the court erred in proceeding on the section 387 petition in
Mother’s absence. The thrust of Father’s argument appears to be the claim that both cases
demonstrate the juvenile court’s order removing F.S. from Mother’s custody was
unsupported by substantial evidence. We address, in the next part of the opinion, the
substantial evidence supporting the juvenile court’s order. We highlight here, however, the
reasons why neither Claudia S. nor Baby Boy M. support a claim that the court in this case
committed any procedural error in going forward with the hearing.
In Claudia S., the mother took her minor child to Mexico knowing that DCFS
planned to file a section 300 petition to establish jurisdiction over the child. (Claudia S.,
supra, 131 Cal.App.4th at p. 241.) The juvenile court in Claudia S. conducted jurisdiction,
disposition, and review hearings, and then terminated reunification services, all in the
absence of the parents and children and without ever appointing counsel for the parents.
(Id. at p. 250.) The Court of Appeal, viewing the hearings as “‘a fiction [] to move the case
toward final resolution,’” held the juvenile court violated the parents’ due process rights
because the parents were not represented by counsel, lacked actual notice of the hearings,
and did not receive any advisements by the court about their legal rights, including their
right to counsel. (Id. at pp. 250-251.)
Claudia S. does not support any claim that there was a due process violation in this
case. Father was present with counsel at the section 387 hearing. The juvenile court had
also previously appointed counsel for Mother and F.S., and counsel for both were present at
the section 387 hearing to advocate for their interests. There is also no notice issue in this
case. It is undisputed that Mother had actual notice of the hearing, and her attorney
13
informed the court that she had no intention of returning to California to answer to the
allegations in the petition in person.
In Baby Boy M., the mother gave birth to a boy and promptly gave the child to the
biological father, who she claimed left the state with the child. (Baby Boy M., supra, 141
Cal.App.4th at pp. 592-594.) The juvenile court issued a protective custody warrant for the
child, but proceeded to conduct the jurisdiction and dispositional hearing in the child’s
absence. (Id. at p. 595.) Baby Boy M.’s mother contended the juvenile court lacked subject
matter jurisdiction to conduct dependency proceedings under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA, Family Code § 3400 et seq.) because DCFS
had introduced insufficient evidence to establish California was the child’s home state when
dependency proceedings began. (Id. at p. 599.) The Court of Appeal agreed that there was
insufficient evidence to establish subject matter jurisdiction. The Court of Appeal further
observed that “prudential considerations independent of the jurisdictional analysis” should
have compelled the juvenile court to defer holding the jurisdictional hearing until Baby Boy
M. was located “precisely because it is at best unclear whether the juvenile court has subject
matter jurisdiction in this case and because the court lacks any meaningful information
concerning Baby Boy M., including the matters specified in Family Code section 3421 [the
“default” jurisdiction-by-necessity provision of the UCCJEA].” (Id. at pp. 600-601.)
Here, the juvenile court had subject matter jurisdiction, and neither party contends
otherwise. Indeed, the juvenile court had already adjudicated a section 300 petition and
declared F.S. a dependent of the court. The only question before the court at the section
387 hearing was whether F.S. should be removed from Mother’s custody because the prior
dispositional order had been ineffective to protect F.S. The prudential considerations that
applied in Baby Boy M. because of the near total lack of jurisdictional information, i.e.,
because “neither the juvenile court nor [DCFS] knows where Baby Boy M. is” (Baby
14
8
Boy M., supra, 141 Cal.App.4th at p. 600, fn. 11), do not apply with equal force here.
Instead, as we shall now explain, there was sufficient information before the juvenile
court—substantial evidence, in legal parlance—to permit the court to hear and rule on the
section 387 petition.
B. Substantial Evidence Supported the Decision to Remove F.S. from Mother’s
Custody
We review the court’s jurisdictional and dispositional findings on a supplemental
petition for substantial evidence. (In re T.W., supra, 214 Cal.App.4th at p. 1161; In re A.O,
supra, 185 Cal.App.4th at p. 109.) Evidence is substantial if it is “‘reasonable, credible, and
of solid value’; such that a reasonable trier of fact could make such findings.” (In re S.A.
(2010) 182 Cal. App. 4th 1128, 1140.) Father, as the party challenging the juvenile court’s
findings and orders, bears the burden to show there is no evidence of a sufficiently
substantial nature. (In re Maria R. (2010) 185 Cal. App. 4th 48, 57.)
There was overwhelming evidence before the juvenile court that Mother brought
F.S. to Father’s apartment on April 19, 2014, and engaged in a violent altercation with
Father after the court’s prior dispositional order on the section 300 petition—which alleged
F.S. was at substantial risk of harm because of the parents’ history of domestic violence.
The court’s prior dispositional order that placed F.S. in Mother’s home was therefore
ineffective in protecting F.S., and the juvenile court properly sustained the section 387
petition.
We also hold that substantial evidence supported the juvenile court’s dispositional
order removing F.S. from Mother’s custody. The juvenile court found by clear and
convincing evidence that there was a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of F.S. if she were returned to Mother’s
8
Father argued in his opening brief that the juvenile court’s order of reunification
services for him “will be of no consequence because [F.S.] is absent from the state of
California . . . .” Because F.S. has been returned to California, the point is moot.
15
custody, and that there were no reasonable means by which F.S.’s physical health could be
protected without removing F.S. from Mother’s physical custody. These are the findings
required by law (§ 361, subd. (c)(1); In re Jasmine G. (2000) 82 Cal. App. 4th 282, 288), and
they are justified by sufficient evidence. (Sheila S. v. Superior Court (2000) 84 Cal. App. 4th
872, 881 [clear and convincing standard “disappears” on appeal and court assesses whether
there is substantial evidence to support the order or judgment].)
The juvenile court was well familiar with the repeated incidents in which Mother
and Father had engaged in domestic violence while F.S. was present in the home. DCFS
reports stated two such incidents occurred even before dependency proceedings began, and
a third domestic violence incident was the basis for the section 300 petition that the juvenile
court sustained. The juvenile court nevertheless entered a prior dispositional order giving
Mother custody of F.S. When yet another physical altercation occurred while F.S. was
present—the April 19, 2014, incident that was the subject of the section 387 petition—the
juvenile court assuredly had before it sufficient evidence to establish Mother was unable to
provide proper care for F.S. and F.S. would potentially suffer detriment if she remained in
9
Mother’s custody. (In re T.W., supra, 214 Cal.App.4th at p. 1163; see also In re T.V.
(2013) 217 Cal. App. 4th 126, 134-135; In re N.M. (2011) 197 Cal. App. 4th 159, 169-170
[court may consider a parent’s past conduct in deciding whether to remove child]; In re
Heather A., supra, 52 Cal.App.4th at pp. 193-195.) As other appellate decisions have held,
a child need not have been harmed before removal is appropriate because the focus of the
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Father makes repeated reference to the indication in the police report that F.S. was
in a separate room from her parents at the time the April 19, 2014, altercation took place.
That F.S. may have been in a different room does not, in our view, provide any basis to
undermine the juvenile court’s order. (See In re Heather A. (1996) 52 Cal. App. 4th 183,
194 [episodes of violence between the parents, including some while the children were
elsewhere in the home, put children in a position of physical danger “since, for example,
they could wander into the room where [the violence] was occurring and be accidentally hit
by a thrown object”].) Mother’s decision to bring F.S. to Father’s apartment, knowing the
juvenile court had ordered Father to have only monitored visitation, and to engage in a
violent confrontation with Father is quite troubling no matter what room F.S. may have
been in when the confrontation occurred.
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statute is on averting harm to the child. (See, e.g., In re T.W., supra, at p. 1163.)
Substantial evidence also establishes that an alternative short of removal from Mother’s
custody would not have sufficed to protect F.S. Given Mother’s demonstrated willingness
to make false statements to DCFS and to the police concerning her participation in domestic
violence, and given Mother’s non-compliance with court orders and her failure to appear
despite being aware of the outstanding arrest warrant, the juvenile court had an ample basis
to conclude there were no conditions of supervision it could impose that would reasonably
guarantee F.S.’s safety if she were left in Mother’s custody.
Father concedes that Mother “placed [F.S.] at risk on that day in April 2014” and
made a “grave mistake,” but he points to other evidence in the record indicating Mother was
providing F.S. with proper care by meeting her basic, medical, emotional, and educational
needs. Under the applicable standard of review, however, we do not reweigh the evidence.
(In re Noe F. (2013) 213 Cal. App. 4th 358, 366 [“[W]e do not consider whether there is
evidence from which the dependency court could have drawn a different conclusion but
whether there is substantial evidence to support the conclusion that the court did draw”].)
Because there was sufficient evidence supporting the juvenile court’s judgment that
removing F.S. from Mother’s custody was necessary to avoid substantial danger to F.S.
from repeated incidents of domestic violence, additional evidence that Mother was
otherwise meeting F.S.’s needs and that F.S. herself had not yet suffered physical harm is
not a basis for reversal.
Relying on Claudia S. and Baby Boy M., however, Father attacks the evidence
supporting the removal order on the ground that it was stale. Father contends the juvenile
court had no evidence before it as to the condition of F.S. at the time of the section 387
hearing because Mother had taken F.S. to Texas eight months earlier.
Claudia S. and Baby Boy M. are inapposite because there was sufficient evidence
before the juvenile court in this case to reliably fashion a dispositional order. The record
belies Father’s contention that there was no evidence before the juvenile court of F.S.’s
condition after Mother took her to Texas. During the section 387 hearing, Father testified
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that he had spoken to F.S. on the telephone, that F.S. reported no concerns, that F.S. was
going to school in Texas, and that he was unsure whether F.S. was residing with anyone
besides Mother. DCFS had also been in phone contact with Mother, and approximately a
week before the section 387 hearing, Mother told a social worker that she and F.S. were in
Texas and doing well. On the other hand (and unlike Claudia S. and Baby Boy M.), the
juvenile court in this case already had jurisdiction over F.S. under section 300 and had
presided over the dependency proceedings for roughly a year. The juvenile court could
therefore contrast the information it did have concerning F.S.’s then-current condition—the
parents’ reports that nothing was amiss—with its knowledge that Mother had been involved
in domestic violence in F.S.’s presence, including the most recent altercation with Father on
April 19. The juvenile court also knew that Mother (and Father) had previously been
untruthful on at least one occasion when questioned by DCFS, denying that Mother was
involved in the April 19 domestic violence incident when F.S. was present in the apartment.
The juvenile court was further aware that Mother had fled the state after her most recent
arrest without notifying the social worker as required by a prior court order, and that she
remained in Texas despite knowledge of the arrest warrant the juvenile court had issued.
On this evidentiary record, the juvenile court expressly found there was a then-
current risk to F.S.’s well-being: “Even though the minor is with the mother, the argument
is that there doesn’t appear to be any current risk. The court disagrees. Mother’s conduct
heretofore and the violent altercations that have existed . . . that conduct, including the most
recent—although it was several months ago—raises serious concerns, in this court’s view,
about the minor’s safety in the presence of the mother, who, according to the information
before the court, is as much of the aggressor, or at least was in one instance, as the father.”
The juvenile court was justified in reaching that conclusion. Mother’s status as the
aggressor in at least one instance establishes that her move to Texas did not ensure
additional violence would not occur; her violent behavior could find a target other than
Father while she and F.S. were living in Texas. We also find it significant that the prior
episodes of violence between Mother and Father were sometimes separated by months of
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apparent calm (see ante, at pp. 2-5); even if the juvenile court believed that there had been
no altercations in the months since Mother left for Texas with F.S., that was not a reliable
indication that the danger of yet another incident had dissipated. (See In re T.V., supra,
217 Cal.App.4th at p. 133 [observing, in adjudicating a section 300 petition, that “[a]
parent’s past conduct is a good predictor of future behavior”].) With Mother and Father’s
documented untruthfulness with DCFS in the past, the court was also entitled to reject the
parents’ assurances that F.S. was at no risk of harm and doing well with Mother in Texas.
We do recognize that Claudia S. and Baby Boy M. illustrate a real danger, namely,
that a court acting without the child being present before the court may enter orders in a
factual vacuum and in a manner that may not serve the child’s best interests. But here, the
substantial evidence before the juvenile court supporting the removal order stands in stark
contrast to the dearth of information in those two cases.
DISPOSITION
The juvenile court’s findings and orders on the section 387 petition are affirmed.
CERTIFIED FOR PUBLICATION
BAKER, J.
We concur:
TURNER, P.J.
KRIEGLER, J.
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