In re Wynston P. CA2/8 ( 2021 )

Filed 1/15/21 In re Wynston P. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re WYNSTON P., a Person Coming B305492
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP00382A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
WILLIS P.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Jean M. Nelson, Judge. Affirmed.
Lori E. Kantor, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, and Melania Vartanian,
Deputy County Counsel, for Plaintiff and Respondent.
__________________________
Willis P. (Father) appeals a juvenile court order removing
his child, Wynston P., from his custody following an incident in
which he punched the child’s mother, Felicia S. (Mother), in the
face because she refused to give him her phone. Out of fear for
her safety and to escape Father, Mother then jumped off the
second floor balcony of their apartment. As of the disposition
hearing, Father denied using violence against Mother, and he
claimed not to have anger management issues. On appeal, he
contends there is insufficient evidence supporting the juvenile
court’s removal order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2019, Mother called the police following a
domestic violence incident with Father. According to the police
report, Mother said she and Father had an argument while
Father was holding their one-year-old child, Wynston. Mother
opened the front door to leave, but Father shut it. Mother
demanded Father get out of her way, and he punched her in the
face. Mother ran onto the balcony of the second story apartment,
which was about 10 to 15 feet above the ground. Father followed
after Mother while still holding Wynston, and Mother jumped to
the ground to escape him. Mother suffered redness and swelling
near her eye, and she had an abrasion on her left knee from
jumping off the balcony.
During the ensuing investigation by the Los Angeles
County Department of Children and Family Services (DCFS),
Mother denied that Father had struck her or that she tried to
escape from him. She claimed she threw her phone off the
balcony after Father demanded to see it, and she went to retrieve
it before Father could. Mother nonetheless agreed to follow a
DCFS safety plan whereby she would live apart from Father.
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Mother also said she was open to participating in domestic
violence classes and counseling.
DCFS contacted Father by telephone about a week after
the incident. Father indicated he was willing to meet with a
social worker in person, but he did not answer or return DCFS’s
follow-up phone calls. Father eventually agreed to meet with a
DCFS social worker in mid-February 2020, more than two
months after the incident. At the meeting, Father denied any
violent, verbal, or physical altercations between him and Mother.
He provided DCFS a record showing he had enrolled in a
domestic violence class.
Based on the domestic violence incident, DCFS filed a
petition asserting Wynston is a person described by Welfare and
Institutions Code section 300, subdivisions (a) and (b).1 The
juvenile court subsequently ordered Wynston detained from
Father and placed with Mother under the supervision of DCFS.
The court held a combined jurisdiction and disposition
hearing on March 9, 2020. Father testified that he did not punch
Mother or prevent her from leaving the home. According to
Father, he asked Mother to show him her phone after he heard
her whispering into it. Mother refused and threw the phone off
the balcony. As Father started to open the front door to leave, he
saw Mother hanging off the balcony. Father left the home before
he knew the police had been called.
Father testified that he had been participating in
counseling and a parenting class for three weeks. He had also
completed an anger management class in connection with his
parole for a robbery conviction. Father denied having anger
1 All further undesignated statutory references are to the
Welfare and Institutions Code.
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management issues, and he could not identify any triggers for his
anger. Father also claimed he and Mother never argue.
The court sustained the petition and then turned to
disposition. Wynston’s counsel and DCFS asked the court to
remove the child from Father and keep him placed with Mother.
Father’s counsel suggested removal was not necessary because
the parents could reside in separate homes and exchange
Wynston at a neutral location.
The court removed Wynston from Father’s custody after
finding clear and convincing evidence of a substantial danger to
his physical health, safety, protection, or well-being if returned to
Father’s home. The court also found there were no reasonable
means by which Wynston’s physical health could be protected
without removing him from Father’s custody, and DCFS had
made reasonable efforts to prevent or eliminate the need for
removal and no services were available to prevent removal.
The court declined to remove Wynston from Mother’s custody.
Father timely appealed.
DISCUSSION
Father contends there is insufficient evidence to support
the juvenile court’s removal order. We disagree.
Under section 361, subdivision (c)(1), “[a] dependent child
may not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition
was initiated, unless the juvenile court finds clear and convincing
evidence . . . [t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-
being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health
can be protected without removing the minor from the minor’s
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parent’s . . . physical custody.” Before removing a child from a
parent, the juvenile court must also determine “whether
reasonable efforts were made to prevent or to eliminate the need
for removal of the minor from his or her home . . . .” (§ 361, subd.
(e).)
“ ‘A removal order is proper if based on proof of a parental
inability to provide proper care for the child and proof of a
potential detriment to the child if he or she remains with the
parent. [Citation.] “The parent need not be dangerous and the
minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.” [Citation.] The court may consider a parent’s past
conduct as well as present circumstances.’ [Citation.]” (In re A.S.
(2011) 202 Cal.App.4th 237, 247, disapproved of on other grounds
by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4.)
“On appeal from a dispositional order removing a child
from a parent we apply the substantial evidence standard of
review, keeping in mind that the trial court was required to make
its order based on the higher standard of clear and convincing
evidence. [Citation.]” (In re Ashly F. (2014) 225 Cal.App.4th 803,
809 (Ashly F.).)
Here, there is substantial evidence supporting the juvenile
court’s removal order. The record shows that, while holding
Wynston, Father punched Mother in the face because she refused
to give him her phone. Mother was apparently so frightened by
Father that she jumped from a second-story balcony to escape
him. As Father readily admits, the incident clearly endangered
Wynston’s physical health, safety, and well-being.
The evidence further indicates Father’s issues that led to
the domestic violence incident remained unresolved as of the
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disposition hearing. Father, for example, continued to deny ever
using violence against Mother, and he claimed not to have anger
issues or triggers for his anger. Father even made the
preposterous assertion that he and Mother never argue.
Although Father was attending counseling and parenting classes,
and had completed an anger management course in connection
with his parole, his participation in services clearly had not yet
led to meaningful insights. The juvenile court could have
reasonably concluded Father’s unresolved issues with anger and
violence would pose a risk to Wynston’s physical safety and well-
being absent removal, especially considering the child’s tender
age and the severity of the prior domestic violence incident.
(See In re T.V. (2013) 217 Cal.App.4th 126, 133 [“A parent’s past
conduct is a good predictor of future behavior.”]; In re Gabriel K.
(2012) 203 Cal.App.4th 188, 197 [“One cannot correct a problem
one fails to acknowledge.”].)
Father insists the removal order must be reversed because
DCFS failed to properly document in the disposition report the
reasonable efforts it undertook to prevent removal, as required by
rule 5.690(a)(1)(B)(i) of the California Rules of Court.2 We agree
with Father that DCFS did a poor job of documenting its
reasonable efforts. Although it included a section in the
disposition report purporting to identify the steps it took to
prevent removal, the listed efforts are either irrelevant or so
vague as to be essentially meaningless. Among other things, for
example, DCFS identified that it had “interviewed all family
members,” completed an investigation, referred Mother to
2 California Rules of Court, rule 5.690(a)(1)(B)(i) requires
DCFS to include in its social study a “discussion of the reasonable
efforts made to prevent or eliminate removal . . . .”
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services, and completed a “staffing.” It is not clear, and DCFS
did not explain, how any of those efforts might have prevented or
eliminated removal from Father.
Nonetheless, reversal is not required because, despite
DCFS’s failings, there is substantial evidence in the record from
which the juvenile court could conclude DCFS made reasonable
efforts to prevent removal. The detention report, for example,
indicates that DCFS proposed and implemented a safety plan
whereby Mother and Father would live in separate homes, which
is essentially what Father’s counsel suggested at the disposition
hearing as an alternative to removal. DCFS also ensured that
Father had enrolled in classes that would address the issues
raised in the petition. In addition, the disposition report
indicates that DCFS considered, but ultimately rejected, a
voluntary program of supervision pursuant to section 301.
This provided a sufficient factual basis for the juvenile court to
conclude that DCFS made reasonable efforts to prevent removal.
We disagree with Father’s passing suggestion that DCFS’s
efforts were insufficient because it failed to offer him referrals for
services. The record indicates that Father refused to
meaningfully cooperate with DCFS until mid-February 2020,
which was only a few weeks before the disposition hearing. By
then, Father had already enrolled in a domestic violence class,
and he fails to identify any additional referrals that were
required.
Father next contends there is insufficient evidence
supporting the juvenile court’s finding that no reasonable means
existed to prevent removal. He insists the court could have
avoided removal by ordering the parents to live apart, not share
custodial time, and cooperate with DCFS until their domestic
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violence issues were resolved. In advancing this argument,
Father simply ignores evidence showing he previously refused to
cooperate with DCFS. He also overlooks that, in light of his
refusal to acknowledge his serious issues with anger and
violence—even after participating in services—the juvenile court
could have reasonably found the same issues are likely to
manifest while he is living apart from Mother. Under these
circumstances, the juvenile court could have reasonably
concluded Father’s proposal would not sufficiently protect
Wynston’s safety.
In a related argument, Father suggests it was
unreasonable for the court to remove Wynston from him, but not
from Mother, since she too was in denial about the domestic
violence. Once again, we disagree. As noted above, the juvenile
court could have reasonably found Father’s unresolved issues
with anger and violence are likely to manifest even outside
Mother’s presence. There is no evidence that Mother has similar
unresolved issues that would manifest outside Father’s presence.
On this record, the court could have reasonably concluded it was
necessary to remove Wynston from Father, but not from Mother.
Father further suggests the court should have considered
other means to prevent removal, such as implementing
unannounced visits, public health nursing services, and in-home
counseling services. He fails, however, to explain how such
means would have ameliorated the risks posed by his unresolved
anger and violence issues, which were the basis for the court’s
decision to remove Wynston from his custody.
Father next claims the juvenile court failed to comply with
section 361, subdivision (e), which requires it “state the facts on
which the decision to remove the minor is based.” His claim is
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not supported by the record. At the disposition hearing, the court
explained its removal order was based on the facts found true in
the petition as well as the “domestic violence that needs to be
addressed, and until it is, [Father] remains a risk to the child.
He was the perpetrator here, and until he addresses the domestic
violence in a relationship, that risk continues. [¶] So I find that
continuance in the home of [Father] is contrary to the child’s
welfare.” To the extent the court erred in failing to specify the
facts on which it relied in making its reasonable efforts and
reasonable means findings, any error was harmless given the
substantial evidence supporting those findings, as discussed
above. (See In re Jason L. (1990) 222 Cal.App.3d 1206, 1218–
1219.)
Ashly F., supra, 225 Cal.App.4th 803, does not suggest a
different result. In that case, the appellate court reversed an
order removing children from their parents’ custody where DCFS
failed to document its reasonable efforts to prevent or eliminate
removal, or any alternatives to removal that it had considered
but rejected. The juvenile court, moreover, did not state facts on
which the decision to remove the children was based or consider
reasonable means to protect the children absent removal, despite
“ample evidence” in the record showing the existence of such
reasonable means. (Id. at p. 810.)
Here, in contrast, DCFS documented that it had
considered, but rejected, a voluntary program of supervision, and
the record shows it made reasonable efforts to prevent removal,
including by implementing a safety plan and ensuring Father
had enrolled in services. Moreover, unlike in Ashly F., the
juvenile court stated the facts on which its removal decision was
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based, and there is not “ample evidence” of reasonable means to
protect Wynston without removing him from Father’s custody.
Father’s reliance on Justice Menetrez’s dissenting opinion
in In re G.C. (2020) 48 Cal.App.5th 257, is also misplaced.
In concluding there was insufficient evidence to support removal
in that case, Justice Menetrez noted the record showed all the
immediate risks to the children had been addressed as of the
disposition hearing. (Id. at p. 273.) Here, in contrast, Father did
not even acknowledge the violent incident that endangered
Wynston’s safety, let alone address the underlying issues that led
to it. The risk to Wynston, therefore, had not been resolved as of
the disposition hearing.
DISPOSITION
The removal order is affirmed.
BIGELOW, P. J.
We Concur:
GRIMES, J.
WILEY, J.
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