In re N v. CA2/8 ( 2013 )

Filed 3/14/13 In re N.V. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re N.V., a Person Coming Under the B243067
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK89260)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ANTONIO V.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert Stevenson, Judge. Dismissed.
Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
_______________________
Antonio V. (father) appeals from the judgment adjudicating his daughter, N.V., a
dependent child within the meaning of Welfare and Institutions Code section 300
subdivion (b) and placing her with mother.1 We dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father were not married when N.V. was born in September 2008.
After N.V. was born, mother continued to live in an apartment with her three brothers.
Father lived elsewhere but had keys to the apartment. On October 30, 2010, mother
called the police after she came home with N.V. at about 11:45 p.m. to find father in the
apartment. When she refused to have sex with him, father hit mother in the head with a
metal wastebasket, then threw the wastebasket at the television and knocked over a table
with glass bottles on it, causing the bottles to shatter on the floor. He then fled the
apartment. Mother did not follow up on the officers’ suggestion that she obtain a
restraining order against father.
On July 7, 2011, police investigated an anonymous report that N.V. had been
sexually abused by a maternal uncle. Two days later, mother was arrested for spousal
abuse after father accused her of stabbing him with a kitchen knife. On July 11, mother
entered a domestic violence shelter with N.V. The next day, police investigated mother’s
report that father had made criminal threats against her. That same day, July 12, the
Department of Children and Family Services (DCFS) received a referral alleging general
neglect as well as physical and sexual abuse of N.V. The social worker responded to
mother’s apartment and interviewed the apartment building’s resident manager, who
stated that mother had lived in the building with the maternal uncles since October 2007;
father visited occasionally but did not live there; N.V. seemed happy and well cared for.
The manager did not observe any evidence of domestic violence but mother had asked to
have the locks changed several times, including the day before, because of “problems”
with father.
1 All future undesignated statutory references are to the Welfare and Institutions
Code.
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The social worker returned to the apartment building the next day and interviewed
one of the maternal uncles. The uncle stated that father had taken N.V. out of school
without mother’s permission the previous Friday and then refused to return her. The
uncle also reported that there had been domestic violence in mother’s and father’s
relationship for a long time, but mother had been afraid to call the police. The social
worker interviewed the other uncles a few days later. They denied any sexual abuse and
generally corroborated mother’s version of events. They were afraid of father and did not
believe mother was able to protect herself from him.
The social worker interviewed mother at the domestic violence shelter a few days
later. N.V. was clean, well groomed and had no marks or bruises. During a tantrum,
N.V. hit her own head with her closed fists and pulled her own hair. Mother stated that
she and father frequently argued in the front seat of father’s car while N.V. was in the
back seat either awake or awakened by the arguing. On these occasions father would
intentionally drive erratically – at excessive speeds and with sudden stops – causing N.V.,
who father never strapped into her car seat, to flail around. Mother would ask father to
stop in order to strap in N.V. properly, but he always refused. Mother accused father of
fabricating the sexual abuse allegation against her brother because mother denied ever
physically abusing N.V. or father.
Mother accused father of physically and emotionally abusing her. She did not go
into a shelter after the October 2010 incident because she feared for the safety of her
brothers and mistakenly believed she could protect them from father. Mother denied
attacking father with a knife. She explained that father took N.V. from school that day
and refused to return her. Later that night, father told mother he would not return N.V.
unless mother agreed to reconcile with him. Mother refused and when a patrol car drove
by, father ran to it. The next thing mother knew, a second patrol car had arrived and she
was arrested. Mother speculated that father had sustained injuries at his job which he
falsely blamed on her.
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Father told the social worker that although he was the resident manager of an
apartment building, he lived with mother. He accused mother of being the aggressor in
the domestic violence that occurred in their relationship.
N.V. was detained from mother on August 4, 2011, and placed with foster parents.
That same day, mutual stay-away orders were issued against mother and father. Father
did not appear at the detention hearing on August 9, at which he was found to be an
alleged father. Finding that DCFS had made a prima facie case for detaining N.V., the
juvenile court ordered no contact with father, and monitored visits for mother, with
DCFS discretion to place N.V. with mother.
Adjudication was continued numerous times. Father appeared for the first time at
the continued hearing on October 6. He represented that a Temporary Restraining Order
had issued against mother on July 14 with a return date of August 3, and that father had
been given full custody of N.V. The juvenile court granted mother’s request for a
temporary restraining order against father (except for monitored visits).
On November 15, mother was in compliance with the reunification plan, and
DCFS was recommending that N.V. be declared a dependent child and placed with
mother. At father’s request, the hearing was continued, pending which N.V. was released
to mother. By March 15, both parents were participating in services. Over DCFS
objection, father was given unmonitored visits, with the exchange to occur at a local
police station. Adjudication was continued to May 10. On May 10, DCFS reported
problems with father’s unmonitored visits. In particular, the people who transported N.V.
to the visits claimed that father threatened and intimidated them. In addition, father
reported that N.V. said mother had hit her; mother reported that N.V. had begun wetting
the bed; father threatened the social worker that he was going to speak to the news media
about his case; and father continued to blame mother for everything. The social worker
believed father had not benefitted from his domestic violence programs.
In a Last Minute Information For Court Officer filed on July 20, DCFS recounted
what it characterized as “some bizarre behaviors” by father, including accusing maternal
grandfather of being a drug dealer in Mexico, mother of being a drug mule for maternal
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grandfather, alleging that two men “from immigration” came to his home looking for
mother, and these same two men have been following father. According to DCFS, father
said he had stopped answering his phone because of various calls he had received: a
woman called and told him the May 10 court date had been canceled; and someone called
father’s employer and accused father of being a child molester but father would not give
the social worker his employer’s name or number.
At the July 20, 2012, contested adjudication hearing, father testified that he was
enrolled in a domestic violence batterer’s program because of the court order, but denied
there was any domestic violence in his relationship with mother, including the incidents
described in the petition. He reiterated the claim that mother attacked him with a knife
on July 8, 2011, and that he called the police. Father denied ever driving erratically while
N.V. was a passenger in his car.
A., father’s daughter, recalled that on July 8, 2011, she went with father to drop
off N.V. A. saw mother poke at father with a knife and heard mother say she did not
want N.V. A. telephoned her brother to come pick her up so that father could call the
police. A. was not present when the police arrived and never spoke to them. A. never
saw father being aggressive toward mother, and he was never aggressive toward A. A.
testified that she had been a passenger in a car in which N.V. was seated in a car seat;
father drove well and A. was never afraid of his driving.
After finding that father and A. were not credible, the juvenile court sustained two
allegations in the petition, one based on a history of domestic violence and the other
based on father placing N.V. in a detrimental and endangering situation when he drove
erratically with an unrestrained N.V. N.V. was placed with mother under DCFS
supervision, and family maintenance services were ordered for them. Father was given
monitored visits and ordered to participate in a 52 week domestic violence program,
parenting program and individual counseling.
Father timely appealed and we appointed counsel to represent him. After
reviewing the record and juvenile court file and conferring with trial counsel, appellate
counsel filed a letter stating she could not find any arguable issues for appeal. (In re
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Sade C. (1996) 13 Cal.4th 952.) We sent a letter to father telling him he could file a letter
or brief raising any issues he wished us to consider in his appeal.
Father submitted a letter asserting that he did not do the things he was accused of
doing. We understand this as a challenge to the sufficiency of the evidence to support the
jurisdictional order but find no merit to the challenge. Credibility questions are
exclusively the domain of the juvenile court, not this court. (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393.) As the court explained in In re E.B. (2010)
184 Cal.App.4th 568, 576, evidence of domestic violence in the same household where
children are living constitutes a failure to protect the children from the substantial risk of
encountering the violence and suffering serious physical harm or illness from it under
section 300, subdivision (b). Here, there was ample evidence of domestic violence
between mother and father in N.V.’s presence, as well as dangerous driving while N.V.
was not restrained in a car seat. This evidence was sufficient to establish dependency
jurisdiction. We have reviewed the appellate record and find no arguable issues on
appeal. The matter is therefore dismissed.
DISPOSITION
The appeal is dismissed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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