In re S. R. CA2/2 ( 2015 )

Filed 9/2/15 In re S. R. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re S. R., et al., Persons Coming Under B259771
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK71571)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent.
v.
M. S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Tony L.
Richardson, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
Appellant M. S. (mother) appeals from the juvenile court’s findings and orders
establishing dependency jurisdiction over her two sons, S. (born Aug. 2003) and Charles
(born June 2013) and removing the former to his father’s custody and the latter to foster
care. Mother argues there was insufficient evidence to support the juvenile court finding
jurisdiction under Welfare & Institutions Code section 300 subdivisions (b) and (j),1 and
to remove the children from mother’s custody, under section 361, subdivision (c).
BACKGROUND
Section 300 petition and history of the children’s welfare
The Department of Children and Family Services (DCFS) first got involved with
this family on July 19, 2013, when it received notice of domestic violence. It was
reported that Charles A. (father)2 assaulted mother after she had criticized him for
“socking” S. twice in the chest. Mother fought back and a fight ensued in close
proximity to the children. S. immediately called the police and father fled from the
home.
DCFS transported mother and children to a relative’s home and instructed mother
to stay away from father. Despite the violence, mother did not want a restraining order.
Instead she expressed a desire to remain with father and raise her family.
A few days later mother told a social worker that father assaulted her two weeks
earlier and again while she was pregnant with Charles in June of 2013. The social
worker was concerned that mother did not seem to fully understand the effect domestic
violence had on her children. Counseling, therapy, and a parenting course was
recommended for mother.
On August 6, 2013, mother said that the July 2013 incident of violence was an
isolated occurrence and that she wanted to remain with father. S. also changed his story
1
All further statutory references are to the Welfare & Institutions Code unless
otherwise indicated.
2
Charles A. is the father of Charles and of no relation to S. He is also not a party to
this appeal.
2
saying there was no physical violence on July 17, 2013, and that there had not been any
other altercations.
On September 17, 2013, mother and father met with a family preservation worker
who offered parenting and domestic violence counseling. Mother agreed to both but
father refused. The worker noted apparent control by father over mother.
On December 11, 2013, mother called the police to report domestic violence.
Mother reported that father pushed her against a door, strangled her, and punched her
multiple times, leaving her with injuries on her head. Father fled initially but police
arrested him when he returned to the house. Two days later the superior court issued a
restraining order for mother, prohibiting all forms of contact from father for three years.
On January 10, 2014, mother became irate when she was contacted by a DCFS
social worker, saying she had not been in contact with father since July 2013 and that the
incident on December 11, 2013, did not happen at her home. She became uncooperative
and resisted attempts to schedule meetings. S. informed the social worker that father still
lived with them but S. was not concerned for his safety and there were no incidents of
domestic violence.
On March 18, 2014, DCFS sent a letter to mother to which she responded on
March 26, 2014. Mother stated that she was no longer interested in the assistance of
DCFS. She also said that father had not been in the home since July 2013. She added
that due to trouble at school she sent S. to live with his father, S. Sr., in Las Vegas.
The court granted a removal order on March 26, 2014, which DCFS tried to serve
at S.’s school. Because he was no longer enrolled their efforts were unsuccessful. A
social worker attempted thereafter to contact the family on a daily basis in order to serve
the order. There was no response from the family. On April 1, 2014, the social worker
spoke with father at the family home. Although he claimed no knowledge of the
whereabouts of mother and the children, there were diapers and a baby walker in the
home.
A few days later on April 4, 2014, father informed DCFS that Charles had been
living with his paternal great aunt in Los Angeles for the preceding weeks at father’s
3
request. It was their plan that Charles would go to his paternal grandmother soon. On
April 7, 2014, father’s brother’s wife informed DCFS that Charles had come into their
care on that day.
On April 7, 2014, DCFS filed a section 300 petition for both S. and Charles. A
detention hearing was held. At the initial hearing the court found that a prima facie case
under section 300 had been presented. The court detained the children from mother with
monitored visits, ordered reunification services, and continued for adjudication. Charles
was placed in foster care and S. was sent to live with his father.
At an April 14, 2014 interview with mother, DCFS was informed that another
incident of domestic violence occurred on April 10, 2014, when father came by to pick
up his mail.
Mother also said that she had a restraining order against father and that if he came
by the house she would protect the children by calling the police. The social worker
provided a list of available services. Mother stated that although she was receiving
mental health therapy she had not contacted any service providers since December 2013.
At the time of the May 12, 2014 jurisdiction/disposition report, DCFS was
concerned about S. Sr.’s ability to meet S.’s basic needs. On July 28, 2014, S. was
removed from his father’s home in Las Vegas by paternal grandmother, who then brought
S. to the DCFS office.
Jurisdiction/disposition
The adjudication hearing took place on October 15, 2014. Mother claimed she last
lived with father in March 2014 and she had moved in with her grandmother from
December 2013 to March 2014. Mother claims to have not been in a relationship with
father, having been completely separated since April 2014. She also claimed to have
been enrolled in a domestic violence program, one-on-one counseling and life planning,
and child health classes.
At the conclusion of testimony, counsel for Charles, S., and DCFS joined in
requesting the section 300 petition be sustained and the children be removed from
parental custody.
4
After hearing argument from counsel, the juvenile court found that under section
300, subdivision (b), mother failed to protect the children in that she allowed father, who
assaulted her, to reside in the children’s home and have unlimited access to the children;
that the conduct of father against mother, and mother’s failure to protect the children
endangers the children’s physical health and safety and places the children at risk of
harm.
The juvenile court also found, under section 300, subdivision (b) and (j) that
mother knew of father’s inappropriate striking of S. and failed to protect him in that
mother allowed father to reside in the child’s home and have unlimited access to S. Such
inappropriate striking of S. by father and mother’s failure to protect S. endangers his
health and safety and places him and Charles at risk of harm.
The juvenile court sustained the petition, declared jurisdiction over the children
and removed both of them from mother’s custody. The court placed S. with S. Sr., and
ordered that Charles be placed in foster care. It further ordered family reunification
services and parenting classes, domestic violence counseling, and mental health
counseling and granted mother monitored visits.
Mother filed an appeal on October 17, 2014.
DISCUSSION
I. Standard of review
We review the juvenile court’s findings of jurisdiction under the standard of
substantial evidence. (In re Heather A. (1996) 52 Cal. App. 4th 183, 193 (Heather A.) A
dispositional order for a minor is also reviewed according to the substantial evidence
standard. (In re J.C. (2014) 233 Cal. App. 4th 1, 6.) According to this standard, we look
at the record to determine whether reasonable evidence supports the juvenile court’s
conclusions. All reasonable inferences from the evidence are made in support of the
juvenile court’s orders. (In re Savannah M. (2005) 131 Cal. App. 4th 1387, 1393.) The
standard is applied to the facts as they were at the time of the jurisdictional hearing. (In
re Rocco M. (1991) 1 Cal. App. 4th 814, 824 (Rocco M.).)
5
We need not review each basis for jurisdiction: one statutory basis supported by
substantial evidence is enough to a affirm a juvenile court’s finding of jurisdiction.
“When a dependency petition alleges multiple grounds for its assertion that a minor
comes within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence.” (In
re Alexis E. (2009) 171 Cal. App. 4th 438, 451.)
II. Jurisdiction
A. Jurisdiction based on children’s exposure to violence
A jurisdictional finding under section 300, subdivision (b) requires “three
elements: (1) neglectful conduct by the parent in one of the specified forms [in
subdivision (b), such as a parent’s failure to adequately supervise or protect a minor]; (2)
causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of
such harm or illness.” (Rocco M., supra, 1 Cal.App.4th at p. 820.)
Subdivision (b) does not specify that the harm must be a product of direct physical
violence to the children. In Heather A., the court observed that the harm need not be
physical: “domestic violence in the same household where children are living is neglect;
it is a failure to protect [the minors] from the substantial risk of encountering the violence
and suffering serious physical harm or illness from it.” (Heather A., supra, 52
Cal.App.4th at p. 194.)
Furthermore, it is undisputed that the existence of ongoing, continuous domestic
violence that puts a child at risk of physical harm will support the exercise of jurisdiction
under section 300, subdivision (b). (See In re Daisy H. (2011) 192 Cal. App. 4th 713,
717.)
B. There is substantial evidence to support the juvenile court’s finding
Substantial evidence supports the finding that there was a substantial risk of
present harm to the children. The evidence shows an ongoing pattern of violent, physical
abuse between the parents, stretching back to at least June 2013, while mother was
6
pregnant with Charles. Father was the aggressor in most incidents of domestic violence
but it was not uncommon for mother to fight back.
Both S. and Charles were exposed to the violence reported in the July 2013
incident, S. directly so when he was socked in the chest by father. The incident also
created potential physical harm as well.
Though the children witnessed mother being violently assaulted by father, mother
refused to remove her children from the violence. She initially rejected the social
worker’s suggestion to obtain a restraining order, explaining that she did not want to be
away from father since they had a baby together. Even when she appeared to move
herself and the children away from father, there is doubt as to the effectiveness of those
efforts given S.’s later testimony that father remained in the home. Also, father was
observed by others in the home in November and December 2013. Given their historical
pattern of domestic violence and the fact that their physical altercations persisted despite
the existence of a restraining order preventing contact between them, it is most likely that
mother and father would continue to engage in domestic violence in the household.
III. Disposition
Mother also challenges the order removing her children from her custody, on the
ground that there was insufficient evidence that allowing them to remain in mother’s care
placed them at a substantial risk of serious harm without reasonable means of protection.
(§ 361, subd. (c)(1).)
“A removal order is proper if it is based on proof of (1) parental inability to
provide proper care for the minor and (2) potential detriment to the minor if he or she
remains with the parent.” (In re T.W. (2013) 214 Cal. App. 4th 1154, 1163.) Upon
satisfying these prongs, the removal is appropriate even if the parent is not dangerous and
the minor at issue has not yet been harmed. (Ibid.) “The focus of the statute is on
averting harm to the child.” (Ibid.)
Mother continually exposed her children to a violent relationship. So long as there
is evidence that mother had not or was not likely to cut ties with the source of violence
(father), there exists potential detriment to the children when they are in the care of
7
mother. Mother’s routine physical altercations with father coupled with mother’s lack of
insight into the risk domestic violence posed to the children provide more than adequate
bases for removal from mother’s custody. The only way to ensure the children’s safety
was to remove them from mother’s custody until such time as mother gains insight and
skill to safely parent the children.
Mother’s argument that less drastic measures than removal were available to the
court falls short when reviewing mother’s lack of success with such alternatives over the
many months leading up to the court’s dispositional order. Services were offered to
mother in July 2013, September 2013, and April 2014. It was not until the second half of
2014 that mother made any measurable progress.
Substantial evidence supports the juvenile court’s removal order.
DISPOSITION
The juvenile court orders establishing jurisdiction over Charles and S. and
removing them from mother’s custody are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
BOREN
__________________________, J.
HOFFSTADT
8