In re N.D. CA2/3 ( 2014 )

Filed 12/31/14 In re N.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 THREE
In re N.D., a Person Coming Under B254792
the Juvenile Court Law.
_____________________________________ (Los Angeles County
Super. Ct. No. CK66963)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.L.,
Defendant and Appellant.
APPEAL from judgment and orders of the Superior Court of Los Angeles County,
Valerie L. Skeba, Referee. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant
and Appellant.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and William D. Thetford, Principal Deputy County Counsel for Plaintiff and Respondent.
_________________________
M.L. (“mother”) appeals from the juvenile court’s judgment and orders of January
22, 2014, declaring N.D. (“N.”) a dependent of the court under Welfare and Institutions
Code section 3601 and removing N. from her custody. She contends substantial evidence
does not support the sustained allegations under section 300, subdivisions (a) and (b) that
mother’s domestic violence relationships created a substantial risk of serious harm to N.
She further contends substantial evidence does not support the order removing N. from
her custody. We affirm.
STATEMENT OF FACTS AND PROCEDURE
N. was born to mother and S.D. (father) in 2010. Mother and father separated a
month after N. was born.
Mother had an extensive history of being in relationships that involved domestic
violence. When she was growing up, her father hit her mother on a daily basis and
inflicted emotional abuse. Mother thought domestic violence in families was normal.
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All the men with whom she had children abused her. The father of her first two children
hit her in the eye, causing a significant injury. Mother’s parental rights to her third child
were terminated in 2008, as a result of domestic violence, mother’s failure to protect the
child, and mother’s failure to participate in court-ordered services.
In 2010, mother began a relationship with E.H. (E.) which involved weekly
domestic abuse and violence in N.’s presence. Frequently enraged, E. pushed, punched,
kicked, and choked mother, including when mother was holding N. in her arms, and he
pulled mother’s hair with both hands. He told mother he would kill her if she left him.
At times when E. choked her, mother lost her hearing and her vision was blurred. N.
would tell E. not to hit mother and would place herself between mother and E.
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All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
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Department of Children and Family Services (Department) records reflect mother
had three other children living in Mexico.
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E. often yelled at mother, called her degrading names, told her she was ugly,
controlled her paycheck, told her what to wear, and would not let her drive the car she
paid for. He did not allow her to have friends, talk to anyone, leave the apartment
without him, or have a key to the apartment. E. verbally abused N. as well, calling her
derogatory names and insulting her. He told N., “ ‘you look like a lizard, you look ugly,
you dress ugly.’ ” Mother never made a report to the police, because she was afraid N.
would be removed from her custody. She had no family, friends, or support system. She
needed E. because he provided care for N. when she worked. On occasion, mother left E.
and stayed with friends, but she always returned to him.
On December 27, 2012, mother left E. and took N. with her to the police station,
where she reported the ongoing domestic violence. N. was detained from mother’s
custody by the Department, placed in foster care, and a section 300 petition was filed.
On January 3, 2013, the juvenile court ordered the Department to provide mother with
referrals for domestic violence counseling, and parenting and individual counseling.
On January 3, 2013, N. was declared a dependent of the court, based on sustained
allegations under section 300, subdivisions (a) [the child has suffered or is at substantial
risk of suffering serious physical harm inflicted nonaccidentally by a parent] and (b) [the
child has suffered or is at substantial risk of suffering serious physical harm as a result of
the parent’s failure to protect] in that: mother and E. have a history of engaging in
violent altercations in the child’s presence; on December 27, 2012, and on prior
occasions, E. battered mother, causing injuries, in N.’s presence and while mother was
holding N.; mother failed to protect N. in that mother allowed E. to reside in the home
and have unlimited access to N.; and N.’s sibling received permanent placement services
due to the sibling’s father’s violent conduct toward mother.
Mother resided for three months in an emergency shelter run by a domestic
violence agency that helped homeless victims of domestic violence. There, she
participated in a parent education group and a domestic violence education group. The
Department and the shelter staff advised mother she would benefit from staying at the
shelter. However, mother declined the opportunity to move into the agency’s family
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transitional housing, where she would have been able to continue with groups and
individual therapy and live with N. Her case manager at the shelter stated, “[i]t would
greatly benefit her and her family to be in this kind of environment, where she can be
taught and shown how to apply the tools needed for her to thrive not only as an individual
but as a parent.”
Mother participated in individual counseling weekly from April 2, 2013, to June
4, 2013, and twice a month thereafter. In July 2013, mother’s therapist stated mother was
making good progress and should continue in therapy because “many items remain
unaddressed.”
The Department located N.’s father who reported he was willing and able to
provide a stable home for N. In April 2013, the juvenile court ordered unmonitored visits
for both parents for three hours per week and continued the jurisdictional hearing to
August 1, 2013. In a last minute information filed with the court on August 1, 2013, the
Department reported that mother regularly visited N. but the foster mother reported that,
shortly after beginning visits with mother, N. had outbursts of defiance toward her foster
mother, during which she used foul language, such as calling the foster mother a “
‘whore.’ ” In addition, the foster mother reported that when mother returned N. after
visits, the child was wearing a diaper even though she had been potty trained.
At the jurisdictional hearing on January 22, 2014, mother’s attorney asked the
court to dismiss the petition because there was no evidence of a current risk to the child.
N.’s attorney argued the petition should be sustained as pled and the child should be
placed with father following a team decision making meeting to work out visitation with
mother. The juvenile court found: “This is a long going pattern of domestic violence,
and . . . whatever changes [mother] made are primarily motivated by the court’s
intervention[,] not any realistic change of heart or change of her point of view that
domestic violence is not okay. [¶] I am concerned because children who are exposed to
domestic violence at young ages – and clearly this child was – have really significant
changes even seen on MRI that their brains are different than children who have not
grown up in households with domestic violence, and I think we see that with [N.’s]
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outbursts [using foul language]. . . . It’s very sad that mother was so dependent on those
individuals; that she maintained relationships with them rather than protect herself and
protect her children. [¶] . . . [M]other has made some efforts, but . . . I just don’t see the
type of change that I would want before I would either dismiss the petition or place the
child with mother. I think she has made somewhat minimal efforts. A lot of the [efforts
were] done back last year. [¶] The domestic violence [counseling] it’s an emergency
shelter. It’s not a full domestic program. It’s the first phase. People go to that and then
they go into the long-term transitional housing program which is six months, so to say
mother completed it, I think overstates the situation. I think she was in it for a short time.
She attended very basic stuff, domestic violence education. This is not domestic violence
counseling for victims, long-term victims of domestic violence. [¶] So she has made
some efforts, but I don’t . . . get the sense from her in the reports that she recognizes
when a situation is getting bad. She doesn’t recognize what the red flags are for domestic
violence. Somebody who is controlling, somebody who doesn’t let her have a job or
doesn’t let her make phone calls or constantly questions where she is, what she is doing,
who she is seeing. Those are the types of things I expect somebody to tell me, yes, I
realize a relationship is a bad one where I see those flags and that tells me I am in trouble.
[¶] I didn’t hear her say or I didn’t get from the reports that if there is a controlling[,]
dominating individual that she is in a relationship with, somebody who begins to be
verbally abusive and ultimately physically abusive, that she would walk out when the
first signs happen. I am not getting those changes from her and that is what I would need
to see.”
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N. was removed from mother’s custody and placed in the home of parent-father
under Department supervision. Mother was ordered to participate in domestic violence
counseling, parenting and individual counseling, and the order for unmonitored visitation
was continued.
DISCUSSION
1. Substantial evidence supports the jurisdictional findings.
Mother contends the evidence is not sufficient to support the finding under
section 300, subdivisions (a) and (b) that her history of being in relationships involving
domestic violence created a current risk of substantial harm. We disagree with the
contention.
In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, contradicted
or uncontradicted, supports them. “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.” (In re Heather
A. (1996) 52 Cal. App. 4th 183, 193.) “[W]e do not reweigh the evidence, but rather
determine whether, after resolving all conflicts favorably to the prevailing party, and
according the prevailing party the benefit of all reasonable inferences, there is substantial
evidence to support the judgment.” (Scott v. Pacific Gas & Electric Co. (1995)
11 Cal. 4th 454, 465.) (Accord, In re Matthew S. (1988) 201 Cal. App. 3d 315, 321 [we
“do not reweigh the evidence or exercise independent judgment, but merely determine if
there are sufficient facts to support the findings of the trial court”].) Thus, the pertinent
inquiry is whether substantial evidence supports the finding, not whether a contrary
finding might have been made. (In re Dakota H. (2005) 132 Cal. App. 4th 212, 228.)
“ ‘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
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such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’ [Citation.]” (In re I.J.
(2013) 56 Cal. 4th 766, 773.) We will focus on the statutory ground for jurisdiction in
subdivision (b) of section 300.
Section 300, subdivision (b) describes a child who “has suffered, or there is a
substantial risk that the child will suffer, serious physical harm or illness, as a result of
the failure or inability of his or her parent or guardian to adequately supervise or protect
the child, or the willful or negligent failure of the child’s parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with whom the child has
been left . . . .”
“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.” (In re Rocco M. (1991) 1 Cal. App. 4th 814, 824.)
“[S]ection 300 does not require that a child actually be abused or neglected before the
juvenile court can assume jurisdiction. [Section 300, subdivisions (a) and (b)] require
only a ‘substantial risk’ that the child will be abused or neglected. The legislatively
declared purpose of [section 300] ‘is to provide maximum safety and protection for
children who are currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’ (§ 300.2, italics added.)
‘The court need not wait until a child is seriously abused or injured to assume jurisdiction
and take the steps necessary to protect the child.’ [Citation.]” (In re I.J., supra,
56 Cal.4th at p. 773.)
“[T]he court may . . . consider past events when determining whether a child
presently needs the juvenile court’s protection. [Citations.] A parent’s past conduct is a
good predictor of future behavior. [Citation.] ‘Facts supporting allegations that a child is
one described by section 300 are cumulative.’ [Citation.] Thus, the court ‘must consider
all the circumstances affecting the child, wherever they occur.’ [Citation.]” (In re T.V.
(2013) 217 Cal. App. 4th 126, 133.)
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“Exposing children to recurring domestic violence may be sufficient to establish
jurisdiction under section 300, subdivision (b).” (In re T.V., supra, 217 Cal.App.4th at
p. 134.) “ ‘ “[D]omestic violence in the same household where children are living . . . is a
failure to protect [the children] from the substantial risk of encountering the violence and
suffering serious physical harm or illness from it.” [Citation.] Children can be “put in a
position of physical danger from [spousal] violence” because, “for example, they could
wander into the room where it was occurring and be accidentally hit by a thrown object,
by a fist, arm, foot or leg . . . .” [Citation.]’ [Citation.]” (In re R.C. (2012)
210 Cal. App. 4th 930, 941-942.) Even though the child was not physically harmed by the
domestic violence, “[a] cycle of violence [involving the parent] constitute[s] a failure to
protect [the child] ‘from the substantial risk of encountering the violence and suffering
serious physical harm or illness from it.’ [Citations.]” (In re T.V., supra,
217 Cal.App.4th at p. 135.)
Substantial evidence supports the juvenile court’s findings under section 300,
subdivision (b). The record contains evidence that domestic violence had deep roots in
mother’s life. She experienced a lifetime of domestic violence, beginning when, as a
child, she lived in a household where her father regularly hit and emotionally abused her
mother. The fathers of each of mother’s children abused her. Before this case began, she
never reported the abuse to the police. The domestic abuse in her three-year relationship
with E. permeated every aspect of her life, and the abuse was severe. Mother was not
rehabilitated: she did not complete the treatment she needed to insure she would avoid
relationships of domestic violence in the future and would know how to protect N. from
domestic violence. Mother had many issues that remained to be addressed. This is
evidence of a substantial risk mother will continue to enter into and remain in
relationships involving domestic violence. The physical violence exposed N. to a risk of
harm: she was often present when the violence occurred and it affected her both
physically and emotionally.
The foregoing is substantial evidence that there is a substantial risk, under section
300, subdivision (b), N. will encounter domestic violence and suffer serious physical
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harm as a result, by reason of mother’s failure and inability to protect her.
Mother reargues the evidence and asks us to reweigh it. This we will not do.
Our role is to determine whether substantial evidence supports the finding. In this case,
ample substantial evidence supports the finding.
2. Substantial evidence supports the removal order.
Mother contends substantial evidence does not support the dispositional order
removing N. from her custody. We disagree with the contention.
“ ‘The juvenile court has broad discretion to determine what would best serve and
protect the child’s interest and to fashion a dispositional order in accordance with this
discretion. [Citations.] The court’s determination in this regard will not be reversed
absent a clear abuse of discretion.’ [Citation.]” (In re Corrine W. (2009) 45 Cal. 4th 522,
532.) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.” ’ [Citations.]” (In re Stephanie M. (1994) 7 Cal. 4th 295, 318-319.) “[W]hen a
court has made a custody determination in a dependency proceeding, ‘ “a reviewing court
will not disturb that decision unless the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination
[citations].” ’ [Citations.]” (Id. at p. 318.) Where substantial evidence supports the
order, there is no abuse of discretion. (In re Daniel C. H. (1990) 220 Cal. App. 3d 814,
839.)
Section 361 provides in pertinent part: “(c) A dependent child may not be taken
from the physical custody of his or her parent[] . . . with whom the child resides at the
time the petition was initiated, unless the juvenile court finds clear and convincing
evidence[:] . . . [¶] (1) There is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor if the minor were
returned home, and there are no reasonable means by which the minor’s physical health
can be protected without removing the minor from the minor’s parent’s . . . physical
custody.”
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“ ‘A removal order is proper if it is based on proof of parental inability to provide
proper care for the minor and proof of a potential detriment to the minor if he or she
remains with the parent. [Citation.] The parent need not be dangerous and the minor
need not have been actually harmed before removal is appropriate. The focus of the
statute is on averting harm to the child. [Citation.]’ [Citation.]” (In re Miguel C. (2011)
198 Cal. App. 4th 965, 969.) “The jurisdictional findings are prima facie evidence the
minor cannot safely remain in the home.” (In re T.V., supra, 217 Cal.App.4th at p. 135.)
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Substantial evidence supports the order removing N. from mother’s custody. The
sustained jurisdictional findings are evidence N. cannot safely remain in mother’s
custody. Mother dropped out of her domestic violence program after completing only the
first phase. She failed to participate in the transitional living program, where she would
have been taught how to apply the tools she needed to protect N. from domestic violence.
This evidence indicates she was not rehabilitated and not committed to rehabilitating
herself. There was substantial evidence supporting the finding N. could not safely be
returned to her care and there were no reasonable means to protect N. without removal
from mother’s custody. (§ 361, subd. (c).) Accordingly, the juvenile court’s decision to
remove N. from mother’s custody was not an abuse of discretion.
DISPOSITION
The judgment and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
*
EDMON, J.
We concur:
KITCHING, Acting P. J.
ALDRICH, 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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