In re R.M. CA2/8 ( 2020 )

Filed 9/16/20 In re R.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
In re R.M. et al., Persons Coming B303436
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19LJJP00645A-B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
U.M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Stephanie M. Davis, Judge Pro Tempore.
Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Father U.M. (Father) appeals the jurisdictional findings
and dispositional orders of the juvenile court concerning his
dependent children, R.M. and Ryder M. He contends 1) the
evidence was insufficient to support the court’s findings on the
jurisdictional allegations of the dependency petition; 2) the court
erred when it removed the children from his custody; and 3) the
court should have granted him unmonitored, rather than
monitored, visitation. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Initial Investigation and Commencement of
Proceedings
The family, consisting of Father, R.A. (Mother), R.M. (born
2016), and Ryder M. (born 2018), came to the attention of the
Department of Children and Family Services (DCFS) after a
bystander called 911 in July 2019 to report witnessing domestic
violence by Father against Mother at a park. The 911 caller
reported Father had shouted at Mother so loudly that it was
audible inside the caller’s home across the street from the park.
Father yelled, “Don’t disrespect me in front of my kids!” The
caller looked out his window and saw Father holding Mother by
the hair, yelling at her, and pushing her into the backseat of a
car. The children were standing next to Mother when this
occurred. The 911 caller identified Father when the police
arrived.
Mother and Father gave the police similar accounts of what
had happened. Father said he and Mother had been “play
fighting.” He had picked Mother up over his shoulder, spun her
around, and placed her back on the ground, and he also threw
water from a water bottle on her. Mother told the police she and
2
Father had been “play fighting,” “just wrestling,” in the car and
on the sidewalk. She described Father placing her over his
shoulder and spinning her around in the air before setting her
down. Mother said he threw water on her because she
complained it was hot.
The police noticed Mother’s hair was “disheveled”; it
“appeared as though someone grabbed the victim’s hair and
attempted to violent[ly] pull her hair out.” The police concluded
domestic violence had occurred and arrested Father. Mother
declined an emergency protective order.
A DCFS social worker interviewed Mother on August 9,
2019. Initially, Mother denied domestic violence and said she
and Father were merely “horse playing” at the park. Mother
changed her account once she learned two-and-one-half-year-old
R.M. had told the social worker that Father went to jail because
he slapped Mother’s face. She told DCFS Father slapped her face
and threw water on her during an argument. She cried, not
because of the slap, but from embarrassment. Mother denied
Father had said anything about disrespecting him in front of the
children, and she explained her hair was messy because she had
not styled it that day. She told the social worker this was the
first time Father had hit her. Although she felt a restraining
order was unnecessary, Mother was willing to seek one if she
needed to do so.
Mother and the children lived in the home of the maternal
great-grandmother. The maternal great-grandmother told DCFS
Father used to live in the home as well, but she had asked him to
leave because he and Mother argued too much. She had never
seen any violence between Mother and Father. They were good
parents despite their frequent arguments. The maternal great-
3
grandmother said she had heard “different stories” about what
had happened in the park, and she did not know who was telling
the truth.
Five-year-old C.J.,1 Mother’s child from a prior
relationship, told DCFS he had never witnessed fighting or
violence between Mother and Father. C.J. liked Father, who took
him on outings.
The social worker interviewed Father on August 13, 2019.
Father claimed not to know why he was arrested. He said he and
Mother had been together for five years, and he would never do
anything to hurt her in front of the children. He denied slapping
Mother, pushing her, or pulling her hair. He admitted he had
picked Mother up by the waist “in a sexual way” and put water
on her, and she had playfully screamed; Father believed the 911
caller had misinterpreted the incident.
DCFS spoke with Mother again at the end of August. She
said Father visited the children every few days. Mother was
unwilling to obtain a restraining order against Father, but she
would protect the children from him, and she would comply with
court orders if a dependency case were filed.
On September 4, 2019, DCFS advised the parents it had
obtained a court order removing the children from Father. The
children were released to Mother. Mother agreed to DCFS’s
recommendation that she attend a domestic violence class for
victims and a parenting education course. Father, who reported
he was now homeless and living out of town, told DCFS he loved
1 C.J. was not present for the incident in the park, and he
was not a subject of the dependency proceedings.
4
his children, they were the only family he had, and he would
never harm them. Father said he would do anything for his
children, and he agreed to take domestic violence and parenting
education classes as recommended by DCFS. That day, Father
took a four-hour domestic violence course and enrolled in an
eight-hour domestic violence class. He enrolled the next day in a
four-hour parent education and family stabilization course.
On September 6, 2019, DCFS filed a dependency petition
alleging R.M. and Ryder M. came within the jurisdiction of the
juvenile court under Welfare and Institutions Code2 section 300,
subdivisions (a) (physical abuse) and (b)(1) (general neglect).
Under both subdivisions, DCFS alleged Mother and Father “have
a history of engaging in violent physical and verbal altercations
in the presence of the children. On 07/31/2019 [Father] slapped
the mother’s face[,] grabbed and held the mother by the mother’s
hair, spun the mother around in the air, pushed the mother into
a vehicle[,] and threw water on the mother, in the children’s
presence. On 07/31/2019 the father was arrested for [b]attery on
a[n intimate partner]. Such violent conduct of the father against
the mother in the presence of the children endangers the
children’s physical health and safety, placing the children at risk
of suffering serious physical harm, damage and danger.”
The children were detained from Father and remained with
Mother. Father was granted monitored visitation three times a
week for three hours per visit.
2 All further undesignated statutory references are to the
Welfare and Institutions Code.
5
II. Report for the Jurisdictional/Dispositional
Hearing
In October 2019, DCFS re-interviewed Mother, Father, and
the maternal great-grandmother in advance of the jurisdictional
hearing. Father now denied the incident ever occurred: All he
had done was pick Mother up and give her a kiss. Father told
DCFS, “I never put my hands on my baby momma. I never threw
water on the mother. My son was right next to her in the car. If
I did that I would have thrown water on my son. I don’t know
how you take custody of my kids when I’m a better parent than
the mother. How can you take my custody of my kids when my
step-son says I’m a good father?” He said he and Mother had not
been play fighting at the park. He denied pulling Mother’s hair
or spinning her around; in fact, he claimed, it was impossible for
him to have done so because Mother was in the car the entire
time. Father said what the police thought was disheveled hair
was actually Mother’s natural hairstyle as a Black woman.
Father claimed Mother had said he had been violent
because she thought DCFS was going to take the children away
from her. He maintained he was a better parent than Mother,
and DCFS erred in removing the children from him because he
did more for them than she did. Father told DCFS he provided
money for the children but he did not know what happened to it,
and it did not appear Mother spent it on the children. Father
said, “She don’t [sic] do the things she is supposed to. She will
leave the kids with people. All I’m saying is that I’m a better
parent. I just want to make sure the money she gets goes to the
kids. You should make sure she brings receipts.”
Father also told DCFS he had moved to Nevada to make a
better life for himself and his family. He declined to provide
6
DCFS with any information regarding his family history because
he felt DCFS was only trying to “build a case” against him.
In her interview, Mother told DCFS she and Father had a
disagreement at the park, but it had never escalated into yelling
or a physical altercation. He did not hit her; he simply grabbed
her face with his hand during their argument and turned her face
to make her look at him. She was not injured. Mother said
Father poured water on her because she was upset and crying,
and he was trying to cheer her up. She acknowledged her
previous report that Father had slapped her, but explained she
made up what she thought the social worker wanted to hear
because the social worker said she would take the children away
if Mother did not tell the truth.
The maternal great-grandmother confirmed she had never
seen a physical altercation between Mother and Father, nor had
she ever observed any sign of injuries to Mother. She had,
however, witnessed many arguments between the parents: these
arguments usually involved Father trying to “control” Mother
when she wanted to go out socially and Father preferred she stay
home. Father was ready to settle down, the maternal great-
grandmother reported, but Mother was not. The maternal great-
grandmother had found it necessary to tell the parents to “knock
off the fighting,” and they always complied.
The maternal great-grandmother believed the dependency
case was unnecessary and DCFS had inflated a minor incident
into a larger issue. Father was an excellent, active, and involved
parent: He watched the children, cooked for them, bathed them,
did their hair, and cleaned up after them. Father’s strong drive
to be a good father and his preference that Mother stay home
arose from his desire to give his children a better childhood than
7
his own. The maternal great-grandmother felt the dependency
proceedings had driven Father out of the children’s lives.
DCFS also spoke with the maternal aunt, who agreed with
the maternal great-grandmother’s assessment: Father was a
great father who cared deeply for his children. She would trust
her own children with him and believed he would never harm a
child.
DCFS recommended the juvenile court exercise dependency
jurisdiction over the children. The available information
confirmed the allegations of the dependency petition, and
although she had subsequently recanted, Mother had confirmed
to DCFS that Father slapped her and threw water on her in front
of the children. Both parents had changed their stories over
time, leading DCFS to believe they had “demonstrated a lack of
honesty.” DCFS stated that Mother and Father “have yet to
provide a full and accurate account of what happened on
07/31/2019 and continue to deny and minimize in an effort to
avoid any consequences for their actions.” DCFS found it
“uncertain” whether the incident was truly the first incident of
domestic violence; while Mother and Father denied prior violence
and there were no earlier police reports, Father was reported to
be controlling and had been extremely violent during the park
incident, “which is uncommon for a first[-]time incident” of
domestic violence. Mother had not demonstrated she would
protect the children absent juvenile court involvement, as she
allowed ongoing unmonitored contact with the children and “only
began acting protective when DCFS became involved with the
family.” DCFS believed both parents would benefit from
domestic violence classes and parenting education.
8
III. Jurisdictional and Dispositional Hearing
The jurisdictional and dispositional hearing took place on
October 21, 2019. The juvenile court admitted into evidence
DCFS’s reports, Father’s certificate of enrollment and a course
description for an upcoming parenting course in Nevada, and a
pay stub from Father’s job. No other evidence was presented.
Father’s counsel asked the court to dismiss the petition in its
entirety, arguing DCFS had not met its burden to prove a current
substantial risk of harm to the children. DCFS, Father’s counsel
argued, was asking the court to “fill in the holes and craft a nexus
of current risk of harm to these children” from a mere argument
in a park. She noted Father now lived and worked in another
state; and he had, on his own initiative, located and enrolled in a
parenting course in his new city to address the issues raised in
the petition.
Mother’s counsel also asked the court to dismiss the
petition because both parents denied domestic violence and there
was no prior history of violence. “Not every case has to come to
court,” she argued, and here there was nothing “substantial
that’s current to justify [DCFS] even asking for supervision in
this case.”
Counsel for the children asked the court to sustain the
failure to protect allegation under section 300, subdivision (b)
because the evidence established Father had committed domestic
violence. When assessing the risk to the children posed by the
incident, she argued, it was significant that the children were not
only in the parents’ immediate presence during the altercation,
but also they were “integral to the argument that led to” the
violence, as evidenced by Father’s statement to Mother about
disrespecting him in front of the children. Counsel argued the
9
altercation appeared to be an escalation of ongoing conflict
between the parents, who previously had to be told to “knock off”
their fighting.
Counsel for DCFS argued the petition’s allegations should
be sustained: A neutral bystander saw the physical altercation,
and Mother’s hair was disheveled, consistent with the report that
Father had pulled her hair. The parents’ accounts of the events
were inconsistent, especially as to the water throwing. Counsel
argued, “Finally, the father says, well, we were in the car the
whole time so none of that ever happened. The only thing he ever
did was pick her up and give her a kiss. [¶] Now, if the father is
at one point saying he stayed in the car and never did anything,
then I don’t see how he’s able to also say he picked Mother up
while he was in the car and gave her a kiss.” Father may have
enrolled in some short courses, counsel for DCFS noted, but when
interviewed he was not forthcoming with information and focused
on Mother’s parenting to shift the blame away from himself. In
light of the evidence from the 911 caller and the police, and
because “there’s been no showing o[f] either parent taking full
responsibility for this and the risk” to which the children had
been subjected, DCFS advocated that the petition be sustained.
The juvenile court commented, “The parents’ accounts of
what happened changed with each interview, and the
explanations provided by the Father do not appear to be logical or
consistent and are not consistent in any way with the
observations of the observer who called 911 based on what that
person had observed, and that person was consistent in
explaining what was observed.” After amending the petition to
remove language concerning Father’s arrest, the court found the
10
allegations under section 300, subdivisions (a) and (b)(1) to be
true.
With respect to disposition, Father opposed the children’s
removal of the children from his custody because one domestic
violence incident between parents who had no prior DCFS
involvement did not constitute clear and convincing evidence that
the children needed to be removed from his custody to be
protected; and, moreover, Father’s move out of state made
removal unnecessary. No other party expressed a position on
removal.
The court declared R.M. and Ryder M. dependents of the
juvenile court, removed them from Father’s custody, and placed
them in Mother’s home. The court ordered Father to attend a
domestic violence program for perpetrators and Mother to attend
a domestic violence victims’ support group. The court also
ordered the parents, who were no longer a couple, to undergo
conjoint counseling if they reconciled. The court granted Father
monitored visitation three times per week for three hours and
gave DCFS discretion to liberalize visits. Father appeals.
DISCUSSION
I. Jurisdiction
We review the juvenile court’s jurisdictional and
dispositional findings for substantial evidence. (In re Joaquin C.
(2017) 15 Cal.App.5th 537, 560.) Substantial evidence is evidence
that is “ ‘reasonable, credible, and of solid value.’ ” (In re I.C.
(2018) 4 Cal.5th 869, 892.) Under this standard of review, we
examine the full record in the light most favorable to the findings
and conclusions of the juvenile court and defer to the juvenile
court on issues of credibility of the evidence and witnesses. (In re
11
R.T. (2017) 3 Cal.5th 622, 633.) We neither reweigh the evidence
nor exercise our independent judgment. (In re I.J. (2013)
56 Cal.4th 766, 773.) We determine only whether there is any
substantial evidence, contradicted or uncontradicted, that
supports the juvenile court’s order (In re D.L. (2018)
22 Cal.App.5th 1142, 1146); if so, we must uphold the order even
if other evidence supports a contrary conclusion. (In re T.V.
(2013) 217 Cal.App.4th 126, 133.)
The court took jurisdiction over the children under section
300, subdivisions (a) and (b). When a dependency petition alleges
jurisdiction under multiple subdivisions, “ ‘a reviewing court can
affirm the juvenile court’s finding of jurisdiction over the minor if
any one of the statutory bases for jurisdiction that are
enumerated in the petition is supported by substantial
evidence.’ ” (In re I.J., supra, 56 Cal.4th at p. 773.) We proceed
with our analysis under section 300, subdivision (b)(1), which
authorizes jurisdiction when a 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 . . . .”
A jurisdictional finding under section 300, subdivision (b)(1),
requires DCFS to demonstrate three elements by a
preponderance of the evidence: “(1) neglectful conduct by the
parent; (2) causation; and (3) ‘serious physical harm or illness’ or
a ‘substantial risk’ of serious physical harm or illness.” (In re
Yolanda L. (2017) 7 Cal.App.5th 987, 993.)
Children’s exposure to domestic violence may support
jurisdiction under section 300, subdivision (b)(1). (In re Jesus M.
(2015) 235 Cal.App.4th 104, 112–113; In re T.V., supra,
217 Cal.App.4th at p. 134; In re E.B. (2010) 184 Cal.App.4th 568,
12
575–576, disapproved on another ground in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Domestic violence “ ‘is a
failure to protect [the children] from the substantial risk of
encountering the violence and suffering serious physical harm or
illness from it.’ ” (In re E.B., at p. 576.) Jurisdiction is therefore
appropriate under section 300, subdivision (b)(1), since
“[c]hildren can be ‘put in a position of physical danger’ ” from
domestic violence because, “ ‘for example, they could wander into
the [area] where it was occurring and be accidentally hit by a
thrown object, by a fist, arm, foot or leg . . . .’ ” (In re E.B., at
p. 576.)
To support the exercise of dependency jurisdiction under
section 300, subdivision (b)(1), DCFS must provide evidence the
domestic violence is “ongoing or likely to continue” and that it
“directly harmed the child physically or placed the child at risk of
physical harm.” (In re Daisy H. (2011) 192 Cal.App.4th 713, 717;
accord, In re M.W. (2015) 238 Cal.App.4th 1444, 1453.) “[T]here
‘must be some reason beyond mere speculation to believe the
alleged conduct will recur. [Citation.]’ [Citation.]” (See In re
D.L., supra, 22 Cal.App.5th at p. 1146.) “Although ‘the question
under section 300 is whether circumstances at the time of the
[jurisdictional] hearing subject the minor to the defined risk of
harm’ [citation], the court may nevertheless consider past events
when determining whether a child presently needs the juvenile
court’s protection.” (In re T.V., supra, 217 Cal.App.4th at p. 133,
italics omitted.) Moreover, “ ‘[t]he court need not wait until a
child is seriously abused or injured to assume jurisdiction and
take the steps necessary to protect the child.’ [Citations.] The
focus of section 300 is on averting harm to the child.” (Ibid.)
13
The evidence was sufficient to support the exercise of
jurisdiction under section 300, subdivision (b)(1). Father argues
“there was no evidence that the children were physically harmed
by the parents or ever at risk of enduring physical harm,” but the
violence by Father against Mother did place the children at risk
of physical harm. The incident took place in front of the very
young children and pertained directly to them: Father was angry
about Mother’s attitude toward him in front of the children.
Father shouted at Mother, lifted her off the ground and spun her
around, seized her by the hair, slapped her, doused her with
water, and shoved her into a vehicle. This violent behavior could
easily have resulted in physical injury to the small children
nearby. (In re E.B., supra, 184 Cal.App.4th at p. 576 [children
may accidentally be harmed during violence between adults].)
Moreover, “[d]omestic violence impacts children even if they are
not the ones being physically abused, ‘because they see and hear
the violence and the screaming.’ ” (In re T.V., supra,
217 Cal.App.4th at p. 134.)
Father contends there was no evidence “that the violence
was ongoing or likely to continue as it never happened before
July 2019 or afterwards.” While this incident may have been a
first-time escalation from verbal conflict to physical violence, the
evidence justified the inference that it was not an isolated event
but part of a pattern of significant conflict between the parents.
Father had a history of trying to control Mother, and their
conflict and arguments had been so frequent and vocal that the
maternal great-grandmother had directed Father to move out of
the home. “A parent’s past conduct is a good predictor of future
behavior.” (In re T.V., supra, 217 Cal.App.4th at p. 133.)
14
Father’s “lack of honesty,” denial of violence, and refusal to
take responsibility for his actions also indicated an ongoing risk
of harm. In assessing risk, the juvenile court should consider
“ ‘present circumstances [including] evidence of the parent’s
current understanding of and attitude toward the past conduct
that endangered a child, or participation in educational
programs, or other steps taken, by the parent to address the
problematic conduct in the interim . . . that would help a parent
avoid a recurrence of such an incident.’ ” (In re John M. (2013)
217 Cal.App.4th 410, 418–419, abrogated on another ground by
In re R.T. (2017) 3 Cal.5th 622, 627–630.) To be sure, Father
voluntarily attended a domestic violence class and enrolled in
other courses, but he failed to demonstrate any understanding of
his past conduct or acquisition of skills in those programs that
would help him refrain from violence in the future. Instead,
Father continued to deny his violence, disparaged Mother, and
pushed DCFS to investigate Mother’s parenting. “ ‘[D]enial is a
factor often relevant to determining whether persons are likely to
modify their behavior in the future without court supervision.’ ”
(In re A.F. (2016) 3 Cal.App.5th 283, 293.) “One cannot correct a
problem one fails to acknowledge.” (In re Gabriel K. (2012) 203
Cal.App.4th 188, 197.)
Father, finally, states he had moved to Nevada, apparently
to suggest there was no ongoing risk of physical harm to the
children. Because Father intended to visit the children in
California despite his move, his change of residence does not
undermine the juvenile court’s findings or suggest there was no
longer a risk of harm to the children.
15
Examining the whole record in a light most favorable to the
findings and conclusions of the juvenile court, and deferring to
the juvenile court on issues of credibility of the evidence and
witnesses, we conclude the record contains sufficient evidence
supporting the court’s jurisdictional findings under section 300,
subdivision (b)(1).
II. Removal
Section 361, subdivision (c)(1) authorizes the juvenile court
to remove a child from the physical custody of a parent if the
court finds, by clear and convincing evidence, 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 child is
returned home, and there are no reasonable means of protecting
the minor’s physical health without removal from the parent’s
physical custody. Father argues there was no substantial
evidence to support either of these findings. “When 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 factfinder could have found it highly probable that the
fact was true. In conducting its review, the court must view the
record in the light most favorable to the prevailing party below
and give appropriate deference to how the trier of fact may have
evaluated the credibility of witnesses, resolved conflicts in the
evidence, and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011–1012.)
Applying this standard, we conclude the evidence was sufficient
to support the court’s findings concerning removal.
16
A. Substantial Danger to the Children
Substantial evidence supports the juvenile court’s finding
there would be a substantial danger to the children’s physical
health, safety, protection, or physical or emotional well-being if
they remained in Father’s custody. As discussed above, the
violence, while inflicted upon Mother, happened in the presence
of and directly concerned the children. Domestic violence in the
presence of the children constitutes “substantial evidence of a
substantial danger to the children’s emotional well-being, if not
their physical well-being.” (In re J.S. (2014) 228 Cal.App.4th
1483, 1494, disapproved on another ground in Conservatorship of
O.B., supra, 9 Cal.5th at p. 1010, fn. 7.) It was unclear whether
this actually was the first incident of domestic violence given its
severity, but at a minimum the incident was part of a larger issue
of conflict between the parents.
Additionally, Father denied his conduct and attempted to
deflect the blame: First, he said the witness misunderstood what
he saw. Later, he claimed it was DCFS’s fault that Mother said
Father slapped her—according to Father, DCFS “scared her” into
changing her story. He urged DCFS to investigate Mother’s
parenting rather than his own. Even at the jurisdictional and
dispositional hearing, Father argued it was “unfair” to accept the
eyewitness’s identification of him. In light of the violence and
conflict between the parents and Father’s persistent denial and
refusal of responsibility, substantial evidence supported the
juvenile court’s conclusion there would be a substantial danger to
the physical health, safety, protection, or physical or emotional
well-being of the children if they were not removed from Father’s
custody.
17
Father argues the facts here are similar to those in In re
Basilio T. (1992) 4 Cal.App.4th 155, 171, in which the Court of
Appeal ruled the evidence was insufficient to warrant removal of
the minors where there had been two incidents of domestic
violence that did not “directly affect[] either minor physically.”
The court stated, “In fact, no evidence whatsoever was presented
that the minors were harmed physically during the incidents that
led to this proceeding. In sum, we find there was not substantial
evidence to uphold a finding under section 361, subdivision (b)(1),
under the requisite clear and convincing standard.” (In re Basilio
T., at p. 171.) Father argues the facts in this case are similar to
those in In re Basilio T., and that here, too, his conduct did not
rise to the level of an “extreme case of parental abuse or neglect.”
But the law has changed since In re Basilio T. was decided. At
the time of In re Basilio T., the removal statute provided that a
child could only be removed from parental custody when there
was a risk of physical harm to the child. (Id. at p. 170.) The
types of risk that warranted removal were subsequently
expanded by the Legislature. (§ 361, as amended by Stats. 1996,
ch. 1084, § 4.) Now a child may be removed from parental
custody not only when there is a substantial danger to the
physical health of the minor, but also when there there is a
substantial danger to the child’s safety, protection, or physical or
emotional well-being. (§ 361, subd. (c)(1); see In re J.S., supra,
228 Cal.App.4th at pp. 1493–1494.) Because of this statutory
change, In re Basilio T. is no longer helpful in assessing the full
range of risks to a child that merit removal.
B. Reasonable Means Short of Removal
The juvenile court considered less drastic measures than
removal and expressly found there were no reasonable means to
18
protect the minors without removal from Father’s custody.
Father argues the evidence was insufficient to support this
finding. He contends the court could have ordered the release of
the children to both parents with “an appropriate manner of
exchanging the children from one parent to the other,” such as
prohibiting parental contact in the presence of the children,
ordering a relative to exchange the children between the parents,
or requiring a relative to be present whenever the children were
with both parents. Father suggests that if the court had ordered
the parents to undergo domestic violence classes and report to
the social worker on their progress, ways that further incidents
could be avoided, and safety plans, “there was every reason to
believe” the parents would have complied based on their
“cooperation” throughout the dependency proceedings.
The evidence supported the juvenile court’s determination
that dispositions dependent on Father’s cooperation were
inadequate to protect the children. Father had not been
cooperative or forthright with DCFS during the investigation: He
gave conflicting descriptions of what had happened, refused to
provide information about his family history, and tried to divert
DCFS’s scrutiny to Mother’s parenting and use of funds. There is
no basis in the record to conclude Father would have been any
more accommodating with dispositional plans requiring
supervision by DCFS than he had been with its investigation.
Moreover, Father’s proposed alternatives to removal are
premised on the idea that the children would be in no danger
from his violence as long as they did not witness contact between
Mother and Father. But given that Father perceived no
incongruity in committing a violent attack in front of the children
to retaliate for disrespectful conduct in front of them; he was
19
dishonest about his conduct; and he denied all wrongdoing, the
evidence supported the juvenile court’s conclusion that leaving
these very young children in Father’s custody, even if Mother was
absent, would not have adequately protected them from the
threat his violence posed.
A child need not actually be physically harmed before
removal is appropriate. (In re Alexzander C. (2017)
18 Cal.App.5th 438, 451, disapproved on another ground in
Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.) The
goal is to avert any harm befalling the minor child. (In re
Alexzander C., at p. 451.) On the record before it, the juvenile
court could reasonably have found by clear and convincing
evidence that Father posed a substantial danger to the children’s
physical and emotional well-being and that their physical health
could not be protected without their removal from his custody.
III. Monitored Visitation
Father contends the juvenile court abused its discretion
when it ordered monitored visitation. A juvenile court “may
make any and all reasonable orders for the care, supervision,
custody, conduct, maintenance, and support of the child” (§ 362,
subd. (a)), and it 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.’ ” (In re
Corrine W. (2009) 45 Cal.4th 522, 532.) “We review an order
setting visitation terms for abuse of discretion. [Citations.] We
will not disturb the order unless the trial court made an
arbitrary, capricious, or patently absurd determination.” (In re
Brittany C. (2011) 191 Cal.App.4th 1343, 1356.)
20
Father contends there was no evidence the children’s
physical or emotional well-being would be jeopardized by
unmonitored visitation because he posed no risk to them.
According to Father, “there was no history of domestic violence,
and Father immediately sought to address the issue through
services.” However, as we have discussed at length above, the
domestic violence here was part of a history of significant conflict
between the parents. As commendable as it is that Father sought
some services on his own initiative, he did not demonstrate any
insight into his conduct, instead continuing to deny he had
engaged in violence against Mother and seeking to avoid blame
for his conduct. Similarly, Father notes his parenting skills were
well-regarded and the court specifically declined to require
parenting education for him. But the fact that his parenting
skills may otherwise have been excellent does not change
Father’s history of altercations with Mother or his refusal to
accept responsibility for his actions. Finally, Father contends it
was “especially clear” that unmonitored visitation posed no risk
to the children because he had moved to Nevada, but he does not
explain what bearing his state of residence could have on
whether visits should be monitored or unmonitored, nor are we
aware of any authority suggesting monitors are unnecessary
during visits if the parent lives at a distance.
The substantial evidence supporting the court’s
jurisdictional findings also supports the court’s visitation order.
The juvenile court did not abuse its discretion in ordering
monitored visits for Father.
21
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
22