In re Amir M. CA2/2 ( 2022 )

Filed 10/28/22 In re Amir M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re AMIR M., JR., et al., Persons B313867
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No. 21CCJP01220B-C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
AMIR M.,
Defendant and Appellant.
APPEAL from findings of the Superior Court of
Los Angeles County. Mary E. Kelly, Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Amir M. (father) appeals from the juvenile court’s
jurisdictional findings that he and S.E. (mother) engaged in
domestic violence and that his history of substance abuse put his
children, Amir M., Jr. (Amir, born June 2014) and Liam M.
(Liam, born Sept. 2015), at substantial risk of harm. Because the
juvenile court’s jurisdictional findings are supported by
substantial evidence, we affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
Welfare and Institutions Code Section 3002 Petition
Referral
On January 28, 2021, the Los Angeles County Department
of Children and Family Services (DCFS) received a referral
1 On August 11, 2022, the juvenile court terminated
jurisdiction in this matter. On August 22, 2022, father submitted
a letter brief asserting that the juvenile court’s order terminating
jurisdiction did not moot the instant appeal. We agree and thus
address the merits of father’s appeal. (In re Daisy H. (2011) 192
Cal.App.4th 713, 716.)
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
alleging that mother yelled at the children3 and that the parents
yelled at each other. The caller reported that mother yelled at
father in the backyard of their home to “‘stop using that shit’” and
father responded, “‘It is just meth.’” Mother reportedly cried “‘all
the time,’” and father easily became upset. The children were not
attending remote school, and their hygiene appeared “‘off’” in that
they did not look dressed up and their hair was not done,
although the caller acknowledged that that could have been due
to the COVID-19 pandemic.
DCFS visit to the home
On February 5, 2021, a DCFS children’s social worker
(CSW) interviewed the parents at their home. The family was
living with the children’s paternal grandmother. The parents
denied the allegations in the referral, specifically father’s use of
methamphetamine. Rather, they reported that mother and the
children’s paternal grandmother had yelled at father to stop
smoking cigarettes. The parents denied that their arguments
had ever become physical.
Interview with mother
Mother reported having recently stayed with the maternal
grandmother in Apple Valley for a week.
Interview with the children
The children denied any abuse or neglect. They also denied
being aware of the parents engaging in domestic violence or
substance abuse. However, Amir informed the CSW that father
3 The family includes three children: Amir and Liam, who
are the subjects of this appeal, and their older half-sister, Lily L.
(Lily), who is not a subject of this appeal.
3
was “spying” on mother. He said that father secretly watched
and listened to the CSW’s interview with her.
Interview with the paternal grandmother and
paternal aunt
The paternal grandmother reported that she yelled at
father when he smoked cigarettes. She and the paternal aunt
denied having any concerns that the children were abused or
neglected or that the parents engaged in domestic violence.
Father’s drug test
Father submitted to a drug test on February 8, 2021; the
results were negative for all substances.
Interview with Lily’s father
On February 12, 2021, the CSW interviewed Jaime L.
(Jaime), Lily’s father. He did not have any concerns about Lily.
He did not ask Lily many questions about mother’s home, but
said that she had mentioned that mother and father argued. He
denied any knowledge of mother or father using drugs or alcohol.
Father’s call to the CSW
On February 12, 2021, father reported that the children
and mother were staying in Apple Valley. He denied that he and
mother were experiencing relationship issues, but he was
concerned about the children because he did not know who was
staying in the maternal grandmother’s home. He asked the CSW
to make an unannounced visit to the home.
CSW visits the maternal grandmother’s home
The CSW visited the maternal grandmother’s home on
March 2, 2021. When she arrived, father called and asked her to
call him after she completed the visit. Father denied that there
was anything the CSW needed to know prior to entering the
home.
4
Interview with mother
When the CSW walked to the front of the home, mother
was pacing and on the telephone. She heard mother state, “‘I’m
not going to go through this blame anymore like it’s my fault.’”
Mother got off the telephone when the CSW greeted her. She
permitted the CSW to assess the maternal grandmother’s home.
The CSW then asked mother if there was something going
on that she should be aware of. Mother cried and said that she
had lied to the CSW during the initial interview because father
was listening to them. Mother disclosed that father had been
using methamphetamine on and off for approximately six years.
She reported that he used it outside of the home and never in her
or the children’s presence. She said that father acted agitated
and was easily triggered after he used the drug. Father admitted
to mother that he had relapsed at least five times. Mother
believed that he last used methamphetamine several months ago.
She disclosed that the maternal grandmother and father’s entire
family were aware of father’s methamphetamine use. Although
he had participated in a drug rehabilitation program several
years ago, he had relapsed. Mother reported that father blamed
her for his relapses.
Mother had moved to Apple Valley several weeks prior to
the CSW’s initial visit because she believed that she and father
needed a break. Mother was still trying to make her relationship
with father work, but she felt that she was doing all the work.
She had a hard time giving up the relationship because of the
children. She said that father was a good parent and that the
children were unaware of his substance abuse.
Mother further reported that she and father had engaged
in arguments that included them pushing each other, but not in
5
the children’s presence. They usually argued at night when the
children were asleep.
Mother said that she and the children resided with father
after Amir’s birth, but the parents fought a few months after they
had moved in together. She disclosed that father had grabbed
her by her arms and that the maternal grandmother moved
mother and the children back to Apple Valley when she became
aware of the incident. At the time, father’s drug use seemed to
worsen4 and he entered a rehabilitation program. Mother and
the children moved back in with father in August 2019 because
he appeared to be doing well. But, mother wanted to move back
to Apple Valley a few months ago and asked father to move to the
area with her so he could avoid the people who gave him access to
drugs. He refused.
Mother also told the CSW that approximately three to four
months ago, father had locked her in a room with him, pushed
her onto a bed, and covered her mouth with his hand. She said
that Amir and Liam were in the kitchen and no one else was
home. Mother told the CSW that when she pushed father off her,
he said he was sorry, claimed mother made him do things he did
not want to do, and stated that he wanted to hang himself.
Mother said father cut a cord from a steam mop and hung it from
a ceiling fan and around his neck. Mother was able to cut the
cord. She did not believe father was really trying to harm
himself; rather, she thought his behavior was ‘“more for show.’”
Mother was concerned about father’s mental health and
substance abuse. His mistreatment of her had taken a toll on her
4 According to mother, father began using methamphetamine
after Amir’s birth.
6
mental health. That said, she did not believe that father would
ever intentionally harm the children.
Mother did not want to directly communicate with father.
Prior to the CSW arriving at her home that day, she talked to the
children’s paternal aunt and arranged for her and father to
communicate through paternal relatives. Mother had told father
to not call her. Mother showed the CSW text messages in which
father initially led her to believe they were going to spend time
together as a family during the upcoming weekend but then
stated he did not want a relationship with her. Mother sent
father a video of her crying.
Mother was tired of the constant back and forth with
father. She said father did not allow her to have a social life,
friends, or social media. She reported that father searched for
her on social media to ensure that she did not have a secret
account. Mother said that if father wanted to pick up the
children for visits, she would communicate with him via the
maternal grandmother.
Interview with the maternal grandmother
The maternal grandmother described the parents’
relationship as “‘just crazy’” and reported that father did not
think clearly and would keep mother up all night questioning
her. She had been present in the paternal grandmother’s home
when mother and father physically fought. She moved mother
and the children to her home the next day.
She said that the parents went back and forth after that.
When mother moved back in with the maternal grandmother in
August 2019, father began sneaking around and peeking into the
maternal grandmother’s windows.
7
Father had also called the maternal grandmother and
described lewd dreams that he had involving mother and another
male. He also called and claimed that he was experiencing chest
pains but said that she did not care. Father also called mother
late at night when mother was at the maternal grandmother’s
home and make lewd and odd comments. The maternal
grandmother believed that father’s behavior was related to drug
use.
She reported that father’s behavior had been concerning for
seven years and that she had been trying to convince mother to
leave him. She said that father had called mother three days ago
and told her that he wanted to work out their problems and be a
family. He convinced mother to take that weekend off work and
go to Sequoia with him and the children, but then told mother not
to call him, talk to him, or tell him that she loved him. His back-
and-forth behavior caused mother to cry incessantly. The
maternal grandmother was sure that father was using
methamphetamine and said that mother was miserable when she
was around him.
The maternal grandmother had seen father physically
discipline Amir with a belt.
Other comments concerning father
Mother, the maternal grandmother, and Amir told the
CSW that father made inappropriate statements to mother and a
man selling ice cream. When the maternal grandmother asked
father why he made the comments, he claimed not to have slept
in four days because mother kept him up by whispering in his
ear. He denied that he had misheard mother due to his drug use.
8
Interview with Amir and Liam
They reported feeling safe and denied being afraid of
anyone. When asked if they wanted to see father, they answered
in the affirmative.
CSW’s call with father
The CSW spoke with father on March 2, 2021. He
acknowledged using methamphetamine to deal with financial
and work-related stress, but said that he had not used it since
December 24, 2019. He denied ever using it in the children’s
presence or having been under the influence while caring for
them. Father said he did not use the drug consistently, but that
when he did, he used it every couple of months. There was a
period of time several years ago during which he used it more
often. Father reported the children and mother were living in
Apple Valley at the time; since then, he completed a
rehabilitation program and had been clean for a long time before
relapsing. Father admitted that he had relapsed five times
during the last five years.
Father denied physically or emotionally abusing mother.
He also denied ever acting erratically or showing anger in front of
the children. He and mother had verbally argued and yelled in
front of the children, but they had never hit each other or been
aggressive. Father reported that mother had put her hands on
him, but denied ever putting his hands on her. Father said that
on one or two occasions, mother told him, ‘“I’m going to kick your
ass.’” He said that mother had also slapped his chest.
Father initially denied having questioned Amir’s paternity,
but then said that mother once told him the child was not his.
Father reported that he and mother had not lived together for
more than a year and a half at a time. When asked about the
9
incident involving the cord and the ceiling lamp, father said that
he was not using methamphetamine. He reported that he
covered mother’s mouth because she was yelling and told him
that she hated him and wished he were dead. Father denied
pushing mother onto a bed or holding her down. He said that he
had asked mother during the incident if she wanted him to cut
the cord and hang himself. He denied wrapping the cord around
his neck or on a ceiling fan.
The CSW asked father about the incident involving the ice
cream man. He said that he made a comment as a joke because
he was upset that mother had accused him of cheating on her and
being interested in another woman.
Father’s visit with the children
At a visit in March 2021, the children reportedly had a
“‘great’” visit with father.
Father fails to drug test; order removing Amir and Liam
from father
Following father’s visit with the children, the CSW asked
father to drug test the next day. Father said that he was willing
to drug test, but that he had a busy work day. He said he would
do his best to confirm a day and time for testing. The CSW
informed father that DCFS would be seeking an order from the
juvenile court authorizing it to remove his children from him.
On March 12, 2021, the juvenile court signed an order
authorizing DCFS to remove Amir and Liam from father. When
the CSW informed father of the removal order, he told the CSW
that mother was abusive towards the children and said he had a
video recording of mother yelling at them. Father would not
share the recording with the CSW because he said that mother
would respond by trying to “play the victim.” Father felt the CSW
10
was biased and unprofessional. He planned to share the
recording with his attorney.
Mother denied that father had video of her yelling or
speaking badly to father in front of the children. She cried and
said she had feared father would say something bad about her.
CSW’s call with the paternal grandmother
The CSW spoke with the paternal grandmother on
March 15, 2021. She was concerned about mother’s mental
health and referenced a video recording of mother yelling and
throwing a tantrum. She said that she would speak with father
about the CSW’s request to view the video.
The paternal grandmother did not have any concerns about
the children’s safety with father. Although father had a history
of substance use, she was not aware of any recent use. She
believed that mother might have mental health issues and denied
ever witnessing father put his hands on her. The paternal
grandmother was previously scared to talk to the CSW in front of
the parents, especially mother.
Filing of the section 300 petition
On March 16, 2021, DCFS filed a section 300 petition
alleging that the children were at risk due to the parents
engaging in domestic violence and father having a history of
substance abuse and being a current abuser of
methamphetamine.5
5 The petition further alleged that father had mental and
emotional problems, including suicidal ideation. Because the
juvenile court dismissed that count at the jurisdiction hearing,
we do not address it.
11
Detention Hearing
On March 19, 2021, the juvenile court detained Amir and
Liam from father’s custody and ordered that his visits with them
be monitored. The children were to remain in mother’s custody.
Jurisdiction/Disposition Report
Interview with Lily
Lily informed the dependency investigator (DI) that father,
father’s sister, and father’s nephew were nice to her and her
brothers. She had heard mother and father argue and yell in
their room, but she could not understand what they were saying
because the door was closed. While the yelling made her feel a
little uncomfortable, she was not scared. In fact, Lily was not
scared of father and described him as “nice.”
Lily had never seen drugs and did not know what they
were. Her parents told her drugs were bad and that was all she
knew about them. She had never seen anyone use drugs or
alcohol. She had never seen anyone stumble or act different or
strange. Lily told the DI, ‘“I don’t know if [father] uses drugs. He
is really nice. Drugs are for bad people and [father] is not a bad
person.’”
Attempted interview with Amir and Liam
The DI was unable to interview Amir and Liam because
they were unable to focus on the DI’s questions.
Interview with mother
Mother reported she and father had argued and that things
got somewhat physical three to four times. Mother and father
began experiencing problems after Amir’s birth. She told the
CSW, ‘“I think I had post-partum so we really didn’t live together
much.’” She denied any ongoing violence. In fact, mother said
that father was not a violent person and did not actually ever hit
12
her. Mother reported, “‘It was more like him holding me.’”
Mother said that they mainly had verbal arguments.
But, mother also reported: ‘“About [seven] years ago,
[father] . . . hit me on my leg but it was more like he pushed my
leg. I don’t remember what we argued about. I didn’t have any
marks or bruises.’” Also, in August or September 2020, she and
father argued and father pushed her onto their bed and covered
her mouth with his hand so that she would be quiet. She said
that father did not hold her mouth for too long and that he was
not trying to hurt her. Rather, she was very upset and father
just wanted her to be quiet.
Mother said that father was also very upset and told her
that he was going to hurt himself because he did not want to
harm her. Father reportedly wrapped a cord around his neck,
but mother cut it so he did not use it again. Mother said that
father did not tie the cord tight, he just held it around his neck.
Mother added, ‘“I know that I can start arguments but he [tries]
to keep arguing and sometimes, I’m just done.’”
Regarding the children, mother told the DI, ‘“The kids love
their dad. They always ask about him and they ask if he can
come see them so that they can hug and kiss him.’”
Mother told the DI that she and father moved to the
paternal grandmother’s home so father could be closer to his
work. She was “‘stressed out’” at the paternal grandmother’s
home because they had different customs. The pandemic
worsened the situation and took a toll on everyone. Mother gave
up on having the children attend school because the boys could
not sit in front of a computer for long periods of time. Father did
not come home a few times, and mother went to the maternal
grandmother’s home the last time this occurred. Mother said
13
that the maternal grandmother had a bigger home and that she
and the maternal grandmother were able to assist each other.
Mother wanted her and father to be better parents and said
that she was slowly coming to terms with them no longer being a
couple. Mother believed that she and the children were better off
and happier at the maternal grandmother’s home.
Father was more authoritative than she was, and the
children had always been well-behaved with him. Father was
also loving towards the children.
Mother and father initially did not talk because he was told
to not talk to her. They were now talking about the children and
trying to fix their relationship. Father spoke with the children
daily and mother wanted to work with him so he could be around
the children. Mother believed that she and father worked better
separated. She was still trying to accept that their relationship
was over.
Mother did not know much about father’s drug use because
she had not been around it. However, she knew that he
participated in a rehabilitation program and had relapsed a few
times. Mother said that father reported last using
methamphetamine in 2019 when she and the children were not
living with him. She could not say that she had ever seen father
on drugs, but stated that she knew something was different.
Father seemed irritable and distant and she believed this caused
them to argue. Mother did not trust father at the time. Mother
was sure that father’s family knew that he was abusing drugs
before she knew. But, she did not believe that father was using
drugs anymore. She believed that this case was a wake-up call
for father. She did not believe he would use drugs again. Mother
14
said father only smoked cigarettes and that she told him to stop
smoking them because she could not stand the smell.
Interview with Jaime
Jaime told the DI that Lily had informed him that mother
and father argued, but she was happy when she was with
mother. Lily had never mentioned anything negative about
father. Jamie had spoken to father a few times and said he
seemed like a great guy. He did not have much to say about him.
Jamie was surprised to hear that father used drugs. He said that
father did not look like he used drugs and that he had never
suspected it. Lily never mentioned anything to him.
Interview with father
Father told the DI that he and mother argued but that he
did not put his hands on her. Father put his finger on mother’s
lips and told her, ‘“Please stop fucking yelling. The kids [will]
hear[.]’” Father denied that they ever pushed each other.
Father wished mother the best and said that he understood
that she was out of her element at the paternal grandmother’s
home. He wanted to be as transparent as possible, but said they
were not bad parents and that he never touched mother.
Mother’s actions and the case confirmed for father that they were
better off separated. He said that he would love and appreciate
mother as the mother of his children and that he would continue
to support her and the children.
Father acknowledged drug use, but said that he had
“‘cleaned up [his] act a long time ago.’” He told the DI that he
wanted to be transparent but did not want to incriminate
himself. He reported that he had not used drugs recently and
was not a current user or an addict. He said that he would drug
15
test for the courts forever if that was what it took for him to have
his boys.
Father was very hurt that he could not see his children like
he had before and believed it was due to mother being upset that
he had left her. Father reported that mother was a great mother
and recently realized that her anger took over. Father said that
they had to prove that they were great parents and they believed
they were because they had great children.
Father’s drug tests
Father tested negative for drugs nine times between
February 28, 2021, and May 11, 2021. He missed tests
on March 31, 2021, April 15, 2021, May 4, 2021, and May 7, 2021.
DCFS reported, “The father’s no shows have been excused and
have been made up.”
Father’s visits with Amir and Liam
Father was visiting the boys on Sundays. The visits were
nine hours in duration and the paternal grandmother monitored
them. The family did not have any concerns regarding the visits.
Mother reported the boys were happy and appeared well-cared
for when they returned from the visits. The boys were exhausted
from having so much fun. Father called the boys daily before
bedtime.
Amir’s and Liam’s health assessments
The boys had mental health assessments on May 11, 2021.
Amir was diagnosed with a speech disorder and oppositional
defiance disorder. Mother reported the child was extremely
active and required a lot of redirection. Liam was diagnosed with
‘“unspecified Defiant Disorder, Disruption of family and child
affected by parental relationship.’” Mother reported that he
16
required redirection and had expressed sadness due to not seeing
his father as often as he previously did.
DCFS recommendation
DCFS was concerned about the parents’ transparency and
believed that the parents were in denial and minimizing the
domestic violence. DCFS also did not believe that father had
been fully forthcoming with respect to his methamphetamine
abuse. It believed that mother’s description of father’s recent
behavior was consistent with substance abuse and that his
substance abuse was therefore more recent than reported. DCFS
reported the boys had behavioral problems, were at an
impressionable age, and had been affected by father’s behavioral
changes due to his substance abuse.
Thus, DCFS recommended that the juvenile court sustain
the section 300 petition, declare the children dependents of the
court, maintain the boys in mother’s custody, and order that
father’s visits with the boys be monitored. DCFS further
recommended that the court order it to provide mother with
family maintenance services and father with enhancement
services.
Last Minute Information for the Court
On June 29, 2021, DCFS reported that father was
participating in a 10-week parenting program. He had attended
eight sessions and missed two. Make-up sessions were available.
Father drug tested four additional times, and his tests were
negative.
Mother and the children continued to reside with the
maternal grandmother, and the children’s needs were being met.
Mother was participating in individual counseling and a
17
parenting program and was in agreement with continued DCFS
and court supervision.
Jurisdiction/Disposition Hearing
The juvenile court conducted the combined
jurisdiction/disposition hearing on June 29, 2021, and July 2,
2021.
After receiving the DCFS reports into evidence, the juvenile
court accepted stipulated testimony offered by father’s counsel.
The stipulated testimony was as follows: “[Father] went to [sic]
testing site on May 5th, 2021, and was told his letter was not
called. [Father] went to the testing site on Friday, May 7, 2021,
at 5:46 p.m., but the site had already closed. At that time father
had not been aware or informed that the facility closed an hour
and a half early on Fridays.”
Then the juvenile court entertained argument. The
children’s counsel “submit[ted] on the court’s tentative” to sustain
the domestic violence count pled pursuant to subdivision (b)(1).6
Counsel thereafter asked the juvenile court to sustain the count
alleging father’s substance abuse, but to amend it by removing
the language alleging that father was a current abuser of
methamphetamine and that mother failed to protect the children.
With respect to disposition, the children’s attorney asked the
juvenile court to make a home-of-parents order on the condition
that father continue to live with the paternal grandmother, the
parents not visit together, and father participate in individual
counseling to address domestic violence and healthy coparenting.
6 It appears that the juvenile court first informed counsel of
its tentative ruling off the record.
18
Mother’s counsel joined with the children’s counsel’s
arguments. She additionally asked the juvenile court to amend
the domestic violence counts pled pursuant to section 300,
subdivision (b)(1), by removing the language alleging that mother
struck father’s face with her fist. Mother’s counsel told the
juvenile court that mother was “submitting as to disposition” and
was in agreement with a home-of-parents order if the juvenile
court was inclined to grant it.
The juvenile court held a discussion off-the-record. When
the matter went back on the record, the juvenile court told
father’s counsel that its tentative from the very beginning was to
sustain the domestic violence count pled pursuant to subdivision
(b)(1). It was also inclined to make mother nonoffending in the
counts alleging father’s substance abuse and concerning his
mental health and did not have a problem modifying the count
alleging domestic violence by removing the language alleging
that mother punched father’s face. The juvenile court was
inclined to sustain the count concerning father’s substance abuse,
but was not opposed to striking the language alleging that father
was a current abuser of methamphetamine.
In response, father’s counsel asked the juvenile court to
dismiss the section 300 petition in its entirety. If the juvenile
court sustained any of the counts in the petition, father’s counsel
asked that the juvenile court make a home-of-parent order on the
condition that father reside with the paternal grandmother.
Counsel for DCFS asked the juvenile court to sustain the
section 300 petition as pled. During argument, counsel for DCFS
said that there was a strong, underlying dynamic of power and
control in the case.
19
The juvenile court agreed that the case involved a serious
dynamic of power and control. It commented that although
mother had punched father, it saw mother as a victim. It
believed that father was an aggressor and said that it was
striking the language alleging mother stuck father’s face with her
fist. Regarding father’s substance abuse, the juvenile court
struck the language alleging that father was a current user of
methamphetamine because he had been testing negative for
drugs. It amended the language to document that father had a
history of substance abuse.
The juvenile court dismissed the count concerning father’s
mental health. It believed that father’s paranoid behavior
(including spying) was fueled by his methamphetamine use.
Ultimately, the juvenile court sustained counts b-1 and b-2
as modified, declared the children dependents of the court,
maintained Lily in her parents’ custody and Amir and Liam in
mother’s custody, removed Amir and Liam from father’s custody,
and ordered that father’s visits with Amir and Liam be
monitored.
Notice of Appeal
Father’s timely appeal from the juvenile court’s
jurisdictional findings ensued.
DISCUSSION
I. Standard of review
As the parties agree, we review the juvenile court’s
jurisdictional findings for substantial evidence. (In re E.B. (2010)
184 Cal.App.4th 568, 574, overruled in part by Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7; In re A.S. (2011) 202
Cal.App.4th 237, 244, overruled in part by Conservatorship of
O.B., supra, at p. 1010, fn. 7.) Substantial evidence is evidence
20
that is reasonable in nature, credible, and of solid value. (In re
Alexzander C. (2017) 18 Cal.App.5th 438, 446, overruled in part
by Conservatorship of O.B., supra, at p. 1010, fn. 7; In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) “[W]e view the
record in the light most favorable to the juvenile court’s
determinations, drawing all reasonable inferences from the
evidence to support the juvenile court’s findings and orders.”
(In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) “We do not
reweigh the evidence, evaluate the credibility of witnesses, or
resolve evidentiary conflicts. [Citation.]” (In re Dakota H. (2005)
132 Cal.App.4th 212, 228.)
II. Relevant law
Section 300, subdivision (b)(1), authorizes dependency
jurisdiction over a child where “[t]he child 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 . . . to adequately supervise or protect the child.”
(§ 300, subd. (b)(1).) Three elements are often cited as necessary
for a jurisdictional finding under section 300, subdivision (b)(1):
“(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) ‘serious physical harm or illness’ to the
minor, or a ‘substantial risk’ of such harm or illness.” (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820; see also In re L.W. (2019)
32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; In re Ma.V. (2021) 64 Cal.App.5th 11, 21–22.)
Although section 300 requires proof that the child is subject
to the defined risk of harm at the time of the jurisdiction hearing
(In re J.N. (2021) 62 Cal.App.5th 767, 775), the juvenile court
need not wait until a child is seriously abused or injured to
assume jurisdiction and take steps necessary to protect the child.
21
(In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383.) “[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.)
III. Analysis
A. Domestic violence (count b-1)
1. Relevant law
“[D]omestic violence in the same household where children
are living is neglect; it is a failure to protect [the children] from
the substantial risk of encountering the violence and suffering
serious physical harm or illness from it. Such neglect causes the
risk.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194; see also
In re Basilio T. (1992) 4 Cal.App.4th 155, 169.) “‘Both common
sense and expert opinion indicate [that] spousal abuse is
detrimental to children.’ [Citations.]” (In re E.B., supra,
184 Cal.App.4th at p. 576.) It is a form of secondary abuse;
children are affected by what happens around them as well as by
direct harm. (In re Heather A., supra, at p. 195, fn. 11; see also
In re Sylvia R. (1997) 55 Cal.App.4th 559, 562; In re E.B., supra,
at p. 576.)
2. Analysis
In challenging the juvenile court’s findings with respect to
count b-1, father argues that “the children were not directly
harmed, they were not at risk of physical harm, the alleged
domestic violence was not ongoing, and the allegations of past
22
domestic violence did not rise to the level contemplated by the
law to support juvenile court jurisdiction.” We are not convinced.
The evidence demonstrates that the parents’ disputes had
become physical several times throughout their relationship.
Although the parents initially denied any violence in their
relationship, mother later cried and told the CSW that she had
not been honest during the first interview. Mother disclosed that
their disputes had become physical. Mother explained she
initially lied because father was listening in on the conversation.
Her statement was consistent with Amir’s report that father was
“spying” on the CSW.
There was also evidence to support the juvenile court’s
belief that the violence seemed to be escalating. Mother reported
that during the most recent incident, which occurred
approximately three to four months before DCFS became
involved, father locked her in a room with him, pushed her onto a
bed, and covered her mouth with his hand. Mother disclosed that
she punched father and that he tied a cord around his neck and a
ceiling lamp.7 Although mother later minimized her report, the
juvenile court certainly could have found mother’s earlier
disclosure more credible, and it is well-settled that we defer to
the juvenile court on questions of credibility. (In re Giovanni F.
(2010) 184 Cal.App.4th 594, 600, fn. 5.)
Because the most recent incident, which was also the most
serious, occurred three to four months before DCFS became
involved, father is mistaken when he asserts that none of the
violence “was anywhere near recent.”
7 Notably, father did not entirely deny that this incident
occurred.
23
Although it is true the parents reported being separated at
the time of the hearing, the evidence was that they had a history
of having a tumultuous on-again-off-again relationship. Based on
the parents’ history, the juvenile court could have reasonably
concluded that it was likely that the dynamics of their on-again-
off-again relationship would continue, and that therefore, the risk
remained.
The fact the children had not yet been physically harmed is
not determinative. Amir and Liam were present in the home
when the most recent altercation occurred. As set forth above,
“[j]uvenile dependency law in general does not require a child to
be actually harmed before [DCFS] and the courts may intervene.”
(In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 3.)
Finally, the fact that there is case law that involved more
serious and extensive violence does not undermine the juvenile
court’s findings in this matter.
B. Substance abuse (count b-2)
1. Relevant law
Under section 300, subdivision (b)(1), a juvenile court may
exert dependency jurisdiction if, as pertinent here, a “child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness” due to (1) “the failure or
inability of [his] parent . . . to adequately supervise or protect”
him, or (2) “the inability of the parent . . . to provide regular care
for the child due to the parent’s . . . substance abuse.” (§ 300,
subd. (b)(1).)
Section 300 does not define the term “substance abuse,”
and courts have applied various standards in an effort to
formulate a workable definition. The court in In re Drake M.
(2012) 211 Cal.App.4th 754, 765–766 held that a finding of
24
substance abuse must be based on a medical diagnosis or a
determination that a person comes within one of the specific
DSM-IV-TR8 categories. Other courts have been unwilling to
accept the premise that a medical diagnosis or a determination
that a person comes within one of the specific DSM-IV-TR
categories is necessary to establish that the person is a current
substance abuser. (See In re Christopher R. (2014) 225
Cal.App.4th 1210, 1218; In re Rebecca C. (2014) 228 Cal.App.4th
720, 725.)
When the failure to supervise is based on drug abuse,
courts employ a “tender years” presumption; under that
presumption, a “finding of substance abuse is prima facie
evidence of the inability of a parent . . . to provide regular care
resulting in a substantial risk of physical harm.” (In re Drake M.,
supra, 211 Cal.App.4th at pp. 766–777; accord, In re Kadence P.,
supra, 241 Cal.App.4th at p. 1385; In re Christopher R., supra,
225 Cal.App.4th at p. 1220.) In such cases, jurisdiction is
appropriate even without proof of “an identified, specific hazard
in the child’s environment.” (In re Drake M., supra, at pp. 766–
767, italics omitted.) What is more, risk of harm means just that:
The juvenile court “need not wait until a child is seriously abused
or injured to assume jurisdiction.” (In re Kadence P., supra, at
p. 1383; In re N.M. (2011) 197 Cal.App.4th 159, 165.)
8 American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th ed. rev. 2000).
25
2. Analysis
Substantial evidence supports the juvenile court’s
determination that Amir and Liam face “substantial risk [of]
serious physical harm” as a result of father’s substance abuse.
(§ 300, subd. (b)(1).) It is undisputed that father has a history of
substance abuse. And his drug abuse has caused him to engage
in disturbing behavior, such as peeking into the windows of the
maternal grandmother’s home, making lewd calls to the maternal
grandmother, and threatening self-harm during a dispute with
mother. Significantly, mother reported that father seemed
irritable and distant when he used methamphetamine, and she
believed that his drug use caused them to argue. The fact that
mother tied father’s methamphetamine use to the couple’s
disputes is significant because, as set forth above, those disputes
had become physical.
While father may have tested negative during these
proceedings,9 there is also evidence that father has relapsed
multiple times. In fact, mother told DCFS that father had most
recently used methamphetamine “several months ago.” His
recent use and repeated relapses gave the juvenile court “‘reason
beyond mere speculation to believe’” that his drug abuse would
recur. (In re D.L. (2018) 22 Cal.App.5th 1142, 1146.) Given Liam
9 We reject father’s contention that a medical diagnosis is a
required element of proof to find substance abuse under section
300, subdivision (b). (In re Rebecca C., supra, 228 Cal.App.4th at
p. 725.)
26
and Amir’s young ages,10 the juvenile court justifiably found that
they were at substantial risk of harm.11
DISPOSITION
The juvenile court’s jurisdictional findings are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
10 In In re Christopher R., supra, 225 Cal.App.4th at page
1219, the Court of Appeal found that children six years old and
younger were children of “‘tender years’” to which the
presumption applies. But this is not a hard and fast rule. Here,
Amir was seven years old at the time of the
jurisdiction/disposition hearing. In light of the evidence that
Amir was not mature enough for the DI to interview and
mother’s report that he was extremely active and required a lot of
redirection, coupled with his diagnosis of oppositional defiance
disorder, the trial court justifiably determined that he required
close supervision and was at an increased risk of harm in the
event his care was inadequate.
11 The fact that father “had no recurrent substance-related
legal problems” is irrelevant.
27