In re R.C. CA4/1 ( 2021 )

Filed 10/22/21 In re R.C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re R.C., a Person Coming Under
the Juvenile Court Law.
D079110
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4611)
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Affirmed.
Johanna R. Shargel, under appointment by the Court of Appeal, for
Defendant and Appellant.
Lonnie J. Eldridge, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff
and Respondent.
A.C. (Mother) appeals dispositional orders entered in juvenile
dependency proceedings removing her son, R.C., from her custody pursuant
to Welfare and Institutions Code1 section 361, subdivision (c)(1). The San
Diego County Health and Human Services Agency (the Agency) initiated the
dependency proceedings after R.C. was exposed to a domestic violence
dispute between Mother and R.C.’s father, R.G. (Father).2 Mother contends
substantial evidence does not support the juvenile court’s dispositional
findings. She also claims the court erred by failing to consider less drastic
alternatives when it ordered to remove R.C. from her care. We reject these
challenges and affirm the orders.
BACKGROUND3
Mother began dating Father in 2018. Prior to their relationship,
Father was charged with domestic violence after an altercation with a former
girlfriend. Mother was aware of Father’s past domestic violence charge but
believed his former girlfriend was just anemic and bruised easily.
R.C. was born in April 2020. Mother and R.C. lived with the maternal
grandparents. Father lived separately with paternal family members.
On February 18, 2021, Mother and Father had a domestic violence
dispute. According to the police report from the incident, Mother drove to
Father’s house to confront him about infidelity. She took then 10-month-old
R.C. with her to the confrontation, leaving him downstairs while she and
Father argued upstairs.
1 Further statutory references are to the Welfare and Institutions Code.
2 Father is not a party to this appeal.
3 “In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
2
Mother reported that during the argument, Father held her face-down
on the bed, and she punched him twice in the face. Father’s brother, a minor,
was upstairs during the fight and heard glass breaking and Mother and
Father yelling. He also observed Mother punch Father in the face.
After the initial physical altercation, Mother was able to leave the
home with R.C. and placed him in the backseat of her car. On her way out,
she threw a rock at Father’s car. Father retaliated by throwing a softball-
sized rock at her car, shattering the rear passage window while R.C. was
inside. Mother then got out of her car and yelled at Father before driving off.
When she returned shortly after, Father walked up to her car and hit the
driver’s side window three times with R.C. inside. Mother eventually drove
away.
A neighbor called the police after witnessing the fight. The responding
officer observed broken glass on the floor in Father’s room, a dent on the hood
of his car, and a scratch to the trunk. Father also had a visible scratch on his
left wrist and scratches on both elbows. The officer observed that Mother’s
rear window was broken, and broken glass was scattered inside her car.
Following the police investigation, Father was placed under arrest for assault
with a deadly weapon.
The Agency received a referral about the parents’ February altercation.
During an interview with the investigating social worker, Mother denied any
prior domestic violence. She claimed that during the recent dispute, she
stopped the car after Father shattered the rear window because she realized
she had not buckled R.C.’s car seat. However, a security camera that
captured the events outside Father’s home and a neighbor who witnessed the
dispute indicated Mother had stopped the car to prolong the dispute and
yelled at Father. Mother also denied the need for a safety plan, custody
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orders, or a restraining order. She focused on the fact that “no one got hurt”
and claimed R.C. was “fine.” She was worried instead about whether Father
would be released from jail.
In Father’s interview with the social worker, he reported that Mother
had punched him in the face when she was upset four or five times prior to
the most recent dispute. He denied R.C. was present during any of these
incidents. He also did not believe any legal action was necessary to protect
R.C.
The Agency created a safety plan for R.C., in which Mother agreed to
stay with a friend, have no in-person contact with Father in R.C.’s presence
until a child and family team (CFT) meeting could be held, and be assessed
by a domestic violence clinician. A few days later the mother’s friend
reported Mother left the home with R.C. and was planning to stay with
Father. When confronted by the social worker, Mother denied this was her
plan. However, she asked how long she would have to stay away from Father
and asked if she could stay with him if she left R.C. with relatives. She
ultimately agreed to stay with a different friend.
At the CFT meeting, the maternal grandmother reported that the
parents had a “volatile relationship,” and she often heard them yell at each
other over the phone. A family friend at the meeting confirmed there were
problems in the relationship, stating, “ ‘Many people would agree that the
parent[s’] relationship is not healthy.’ ” Father also disclosed past arguments
where Mother pushed him in the car and forced him to get out of the car.
Mother admitted she had pushed him once or twice in the past. At the
meeting, the parents declined voluntary services, which they felt were
unnecessary. The Agency then created a new safety plan for the parents, in
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which they agreed to reside separately, not have in-person contact, and that
the paternal grandmother would help with visitation exchanges.
After completing the investigation, the Agency filed a petition under
section 300, subdivision (b)(1), alleging the parents failed or were unable to
adequately supervise or protect R.C. The Agency alleged the parents exposed
R.C. to a substantial risk of serious physical harm during the domestic
violence dispute on February 18.
At the detention hearing on March 1, the juvenile court found a prima
facie showing that R.C. was described by section 300, subdivision (b)(1). Both
parents were present at the hearing by telephone and represented by
counsel.4 The court detained R.C. with Mother and allowed Father
supervised visits on the condition that the parents were not allowed contact
with each other. The court stated, “Obviously the mom’s not to be the
supervisor of [the father’s] visits because he cannot–he should have no
contact with her. And that will be another condition, that the father have no
contact with the mother.” The court’s written minute order similarly
indicated that the conditions for detaining R.C. with Mother included “no
contact between the mother and the father.” The social worker provided
Mother with a copy of the minute order, and she agreed to follow the court’s
orders.
Following the detention hearing, maternal family members were
concerned Mother was violating the court’s no-contact order. The maternal
grandfather reported Father visited Mother at the maternal grandparents’
home, and the visit was captured by the front door security camera. Two of
Mother’s siblings also observed another visit between the parents that
4 All hearings in these proceedings were conducted remotely via video
conference or telephone due to COVID-19 emergency measures.
5
Mother posted on Snapchat. To explain the violation of the no-contact order,
Mother’s attorney claimed to have incorrectly advised Mother that she and
Father were allowed contact with each other so long as it was outside R.C.’s
presence. However, one of Mother’s siblings also reported viewing pictures
on social media of Mother, Father, and R.C. together at the zoo.
When the social worker confronted Mother about the visits, she denied
seeing Father in violation of the court orders. She also claimed she was not a
victim and that the incident involving domestic violence did not usually
happen. She indicated she would follow the no-contact order but indicated it
would be difficult.
Mother became eligible to begin domestic violence group therapy the
Agency had recommended on April 8, but she did not start attending
sessions. She complained the 26-week course was too long, telling the social
worker, “I’ve never been in a domestic violence relationship.” She reiterated
this to the domestic violence group counselor over the phone, stating, “I’ve not
been in an abusive relationship at all.”
At the April 21 pretrial status conference, the juvenile court ordered to
remove R.C. from Mother’s care and detained him in out-of-home care. The
court noted there had been “quite a bit” of what “appears to be mutual
combat” between the parents. The court also found Mother’s minimization of
the domestic violence, refusal to start domestic violence classes, and
reluctance to safety plan created a substantial danger to R.C.’s physical or
emotional health, particularly given his young age. R.C. was detained with
the maternal grandparents, and Mother moved out of the home.
On April 29, Mother began attending group domestic violence classes.
She minimized the February altercation during her first session.
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At the jurisdiction hearing on May 19, the juvenile court admitted the
Agency’s reports into evidence, and found the petition true by clear and
convincing evidence.
The juvenile court held the contested disposition hearing on June 2.
The court agreed to consider the Agency’s reports previously admitted at the
jurisdiction hearing. The court also admitted Mother’s parenting class
completion certificate and the curriculum vitae of the social worker assigned
to her case.
Mother testified at the hearing that she had attended five domestic
violence group sessions. She indicated she had learned how to control her
temper and understood the risks of exposing R.C. to domestic violence. She
admitted violating the court’s no-contact order with Father, but claimed she
was not “fully aware” of the conditions of the order and has had no contact
with Father since the initial misunderstanding. The maternal uncle,
maternal grandfather, and the social worker also testified at the hearing.
After indicating it had considered the evidence and arguments of
counsel, the juvenile court ordered to remove R.C. from Mother’s custody
under section 361, subdivision (c)(1). The court found the February
altercation was a “very serious situation where [R.C.] could have gotten
seriously hurt.” The court further found Mother appeared “manipulative at
times,” had minimized the domestic violence, and did not demonstrate an
interest in changing when the court initially allowed R.C. to remain in her
custody. The court expressed doubt Mother had made a “complete
characterological change” during the five weeks that had passed since R.C.
was removed from her care. The court found the option of placing R.C. with
Mother on the condition she live with the maternal grandparents inadequate
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because “she can put the child in the car and go and do whatever she
wants . . . .”
The juvenile court concluded there were no reasonable means to protect
R.C.’s physical health without removing him from Mother’s physical custody.
The court placed R.C. with the maternal grandparents. Mother was provided
overnight supervised visits at the home of the maternal grandparents, but
she was not permitted to visit every night.
DISCUSSION
Mother’s sole challenge in this appeal is to the juvenile court’s
dispositional order removing R.C. from her custody. She argues the evidence
does not support a finding of substantial danger to R.C. if he were returned to
her care. She further contends the juvenile court erred by failing to consider
less drastic alternatives to R.C.’s removal.
1. Statement of Law and Standard of Review
A dependent child may not be taken from the physical custody of the
parent under section 361 unless the court finds there is 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 if returned
home, and there are no reasonable means to protect the child’s physical
health without removing the child. (§ 361, subd. (c)(1).) At the dispositional
stage, the juvenile court may consider a parent’s past conduct, present
circumstances, and response to the conditions giving rise to the dependency
proceedings. (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).) “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.” (In re T.V. (2013) 217 Cal.App.4th 126, 135-136 (T.V.).)
The juvenile court also considers whether there are any reasonable protective
8
measures and services that can be implemented to prevent the child’s
removal from the parent’s physical custody. (§ 361, subd. (c)(1); see §§ 202,
subd. (a), 16500.5, 16501, 16501.1.)
The standard of review for a dispositional order is substantial evidence.
(Cole C., supra, 174 Cal.App.4th at p. 916.) “ ‘Evidence sufficient to support
the [juvenile] court’s finding must be reasonable in nature, credible, and of
solid value; it must actually be substantial proof of the essentials that the law
requires in a particular case. [Citation.]’ [Citation.] We consider ‘the
evidence in the light most favorable to respondent, giving respondent the
benefit of every reasonable inference and resolving all conflicts in support of
the [challenged order]. [Citation.]’ ” (In re V.L. (2020) 54 Cal.App.5th 147,
154 (V.L.).) “ ‘[W]hen reviewing a finding that a fact has been proved by clear
and convincing evidence, the question before the appellate court is 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.’ ” (Id.
at p. 155, quoting Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
2. Substantial Evidence Supports the Juvenile Court’s Dispositional Findings
Mother contends the record lacks evidence to support the juvenile
court’s finding of a substantial danger to R.C.’s physical health by remaining
in her custody. She claims there was no longer risk at the time of the
dispositional hearing because the parents were no longer having contact. She
further contends her compliance with the Agency and court’s mandates
throughout these proceedings demonstrates that R.C. could safely remain in
her care.
Substantial evidence supports the juvenile court’s finding of a
substantial danger to R.C.’s physical or emotional well-being by remaining in
Mother’s custody. The parents have a history of domestic violence, and the
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most recent dispute that precipitated these proceedings posed a significant
risk to R.C.’s safety. During this incident, R.C. was inside the home when
glass was broken, Mother hit Father in the face, and Father held Mother face
down on the bed. Then, when the confrontation spilled out into the street,
Father shattered the backseat window of Mother’s car while R.C. was seated
in the backseat. Given R.C.’s young age and proximity to the violence, he was
not in a position to protect himself from harm. Mother’s decision to bring
R.C. with her when she initiated this confrontation therefore created a
situation in which her child could have been severely injured.
Evidence in the record indicated the February dispute was not an
isolated event but part of a pattern of significant conflict between the
parents. Father claimed Mother hit him four or five times prior to the
February altercation, and Mother admitted to pushing him during
arguments. Family members confirmed the parents had a “volatile
relationship” that was not healthy. Additionally, Father had a domestic
violence dispute during a prior relationship, which Mother was aware of.
Even though R.C. had not yet suffered any physical harm due to domestic
violence, a “cycle of violence between the parents constitute[s] a failure to
protect [a child] ‘from the substantial risk of encountering the violence and
suffering serious physical harm or illness from it.’ [Citations.]” (T.V., supra,
217 Cal.App.4th at p. 135.)
Mother contends domestic violence was no longer a risk to R.C.’s safety
because the parents were not in contact at the time of the dispositional
hearing. However, evidence in the record indicated the parents’ abusive
relationship was likely to continue. The parents had been in an on-and-off
relationship for several years. In fact, the parents were living separately
when the February dispute took place, indicating that their separation would
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not necessarily prevent further incidents of violence. Mother’s conduct
during these proceedings also indicated she wanted to remain in contact with
Father. For instance, rather than showing concern for R.C.’s safety after the
February dispute, Mother was worried about when Father would be released
from jail. She also did not feel the need for a restraining order or custody
orders. Then after reluctantly agreeing to the Agency’s initial safety plan,
she wanted to know how long she needed to stay away from Father, and if
she could stay with Father without R.C. She also posted on social media
about having contact with Father after the detention hearing, which included
a visit in R.C.’s presence. “A parent’s past conduct is a good predictor of
future behavior.” (T.V., supra, 217 Cal.App.4th at p. 133.) In this case,
although the Agency had not received any reports of contact between the
parents during the five weeks between the time R.C. was detained and the
contested disposition hearing, the juvenile court could reasonably doubt that
the parents had permanently ended their abusive relationship. (Cf. In re I.R.
(2021) 61 Cal.App.5th 510, 521 [history of domestic violence between the
parents did not pose a substantial danger to the child, because the father did
not live in the family home and had not expressed a desire or willingness to
reconcile with the mother].)
Mother’s minimization of the harm she created by exposing R.C. to
domestic violence further supports the juvenile court’s finding of a
substantial risk to R.C.’s safety. After the February incident, Mother focused
on the fact that “no one got hurt” and claimed R.C. was “fine.” The Agency
then offered her voluntary services at the CFT meeting, which she declined
because she felt the services were unnecessary. She later delayed beginning
her domestic violence group therapy sessions, complaining the course was too
long and that she was not in an abusive relationship. When she did finally
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begin the group therapy, she minimized the February altercation during her
first session. Although Mother was still attending sessions at the time of the
disposition hearing, her domestic violence treatment provider was opposed to
returning R.C. to her care for fear that it could encourage her to stop
receiving treatment for domestic violence.
Mother contends the juvenile court improperly relied on her lack of
progress in these voluntary services to support its dispositional findings,
citing In re MaV. (2021) 64 Cal.App.5th 11 (MaV.) and In re Basilio T. (1992)
4 Cal.App.4th 155 (Basilio T.). However, R.C.’s case was not like the
situation in MaV., where the juvenile court improperly based the
dispositional findings on a lack of verification that the mother was
participating in voluntary services. (MaV., at p. 24.) Nor was it like the
situation in Basilio T., in which the court failed to state a factual basis for
removal. (Basilio T., at pp. 171-172.) Overall, the court in this case was
entitled to consider Mother’s initial reluctance and then delayed participation
in voluntary services in evaluating whether she had gained insight into the
danger she created by exposing her child to domestic violence. (See Cole C.,
supra, 174 Cal.App.4th at p. 918 [concluding the parent’s failure to accept the
Agency’s voluntary service referrals supported the juvenile court’s
dispositional findings]; see also In re Gabriel K. (2012) 203 Cal.App.4th 188,
197 [“One cannot correct a problem one fails to acknowledge.”]; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 601 [the parent’s denial of domestic
violence and refusal to comply with the Agency’s recommended safety plan
indicated a continuing risk of exposure to domestic violence].)
Lastly, Mother asserts she was “always forthright” with the Agency
throughout these proceedings, which she contends demonstrates that R.C.
would be safe in her custody. She blames her attorney for incorrectly
12
advising that she was allowed contact with Father outside R.C.’s presence
under the juvenile court’s no-contact order, maintaining that she never
“intentionally” violated mandates from the Agency or the court.
These contentions, however, are unsupported by the record. For
example, when initially questioned by the social worker about the February
altercation, Mother’s version of events was contradicted by an eyewitness and
security camera footage, which demonstrated she prolonged the dispute.
Mother also denied taking R.C. to the zoo with Father, even though a
maternal relative viewed her posts about it on social media. Further, this
trip to the zoo directly violated the court’s order that Mother and Father were
not to have contact in R.C.’s presence, an order Mother admits she
understood. These incidents show Mother was at times duplicitous during
these proceedings, and support the juvenile court’s finding that Mother
“appear[ed] to be manipulative” and that aspects of her testimony were not
credible.
For the foregoing reasons, we conclude substantial evidence supports
the juvenile court’s finding that R.C.’s removal from Mother’s custody was
necessary to protect R.C. from further incidents of violence.
3. Substantial Evidence Supports the Juvenile Court’s Finding of No
Reasonable Alternatives to R.C.’s Removal
Mother contends the juvenile court’s finding that there were no
reasonable means to protect R.C. without removal from her custody was
conclusory. She contends that her continued participation in the case plan,
unannounced visits by the Agency, and allowing R.C. to reside with Mother
in the maternal grandparents’ home were reasonable alternatives to removal.
Here, the juvenile court expressly found there were no reasonable
means to protect R.C.’s physical health without removing him from Mother’s
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custody. Contrary to Mother’s assertion, the court did consider options other
than removal. In particular, the court addressed the option of allowing
Mother to reside with R.C. in the maternal grandparents’ home, but found
this option insufficient because “[Mother] can put the child in the car and go
and do whatever she wants . . . .” Indeed, Mother was living with the
maternal grandparents when she decided to take R.C. with her to confront
Father over infidelity, a decision that gave rise to these proceedings.
Moreover, the alternatives Mother raises on appeal largely replicate
the conditions that were in place when the juvenile court allowed Mother to
retain custody after the dependency proceedings were initiated. As we have
discussed, Mother knowingly violated the court’s orders when she visited
Father in R.C.’s presence. She also delayed participating in domestic
violence classes, despite the social worker’s regular contact with her and
unannounced visits at the home. On this record, the court was entitled to
find that alternatives to removal dependent on Mother’s cooperation were not
an adequate means of protecting R.C.
Mother’s reliance on In re Ashly F. (2014) 225 Cal.App.4th 803(Ashly F.) is also unpersuasive. There, the mother physically abused her two
children, and the father was largely unaware of the abuse. (Id. at p. 806.)
The Court of Appeal reversed the dispositional order, concluding there was
ample evidence the children could be protected by remaining in the family
home with the father who was the nonoffending parent. (Id. at pp. 810-811.)
Unlike Ashly F., the court determined in this case that both parents had
engaged in “mutual combat,” and the record shows that Mother admitted to
punching Father during their most recent dispute, and she also admitted to
pushing him during prior arguments. Additionally, her decision to bring R.C.
with her to the confrontation with Father over infidelity created a situation
14
in which R.C. could have been seriously injured. Thus, in contrast to the
circumstances of the nonoffending parent in Ashly F., Mother in this case
bore significant responsibility for placing her child at substantial risk of
harm.
DISPOSITION
The juvenile court’s findings and orders are affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
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