In re Elijah L. CA2/1 ( 2021 )

Filed 9/29/21 In re Elijah L. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re ELIJAH L., a Person B313061
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
20CCJP05289)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
TIMOTHY L.,
Defendant and
Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Craig S. Barnes, Judge. Affirmed.
Joseph D. Mackenzie, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
____________________________
The juvenile court found jurisdiction over Elijah L., the
only child of Timothy L. (father) and Leslie M. (mother), under
Welfare and Institutions Code section 300, subdivisions (a) and
(b), and ordered him removed from father’s custody.1 Mother has
not appealed from the juvenile court’s orders. Father contends
that the juvenile court erred in two ways when it removed Elijah
from his custody, but does not dispute the bases of the
jurisdictional allegations or the juvenile court’s jurisdictional
findings. We disagree with father’s contentions of error and will
affirm the juvenile court’s orders.
BACKGROUND
Mother, father, and Elijah came to the attention of the Los
Angeles Department of Children and Family Services (DCFS)
after the Los Angeles County Sheriff’s Department (LASD)
responded to a domestic violence report at the motel room where
the family was living on August 22, 2020. As of August 2020,
mother and father had been together for about three years.
Elijah was born in April 2019.
1 Further statutory references are to the Welfare and
Institutions Code.
2
On the evening of August 22, 2020, father arrived at the
motel room where the couple was living and the couple began
arguing. Mother told police that father had returned to the room
“late after drinking.” According to the LASD incident report,
father “became angry and pulled [mother] by the hair from the
bed where she was sitting, and onto the floor. When she fell onto
the floor, [father] then placed his right knee onto her neck area,
which caused difficulty in [mother’s] breathing. [Father] removed
his knee from [mother’s] neck and began strangling her with both
of his hands while she was still laying on the floor. [Mother] told
[the officer] she felt like[ ] she ‘was about to pass out[.]’ ” After
father stopped strangling mother, “she ran outside of the room,
carrying [Elijah] . . . who was in his crib asleep at the time of the
incident, and waited for law enforcement to show up.” The report
stated that when LASD asked mother if there had been other
domestic violence incidents, mother responded that “there were
prior incidents, but no law enforcement was requested.” During
follow-up interviews with DCFS, mother reported that Elijah was
sleeping on a second bed in the motel room during the attack, and
father reported that Elijah was awake and playing on the bed.
LASD arrested father and obtained an emergency
protective order for mother. Father violated the protective order
while he was still incarcerated after the incident by calling
mother.
By September 3, 2020, father had been released from jail,
and had moved out of the motel room, where mother, Elijah, and
mother’s sister continued to live. Father moved in with his aunt,
where the record indicates he continued to live through at least
the jurisdiction and disposition hearing. During her first
interview with DCFS, mother told DCFS that she did not intend
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to pursue charges against father for the attack, but that she did
intend to have the emergency protective order extended and to
seek a restraining order against father. Father cited mother’s
protective order as the reason he no longer lived with mother
after he was released from custody following the August 2020
incident.
During interviews with DCFS, father explained that he
“sometimes goes out with his friends to hang out and have a few
beers,” and told DCFS that he did that “once a week or once every
other week.” He also reported that he smokes marijuana daily,
but that he “does not care for [Elijah] while he is under the
influence.” DCFS also discovered that father had been arrested
in a domestic violence incident as a minor in 2007 or 2008, was
convicted of driving under the influence in 2012, and was again
arrested for driving under the influence in 2017.
DCFS filed a petition under section 300, subdivisions (a)
and (b) on October 6, 2020 based on domestic violence allegations
and based on information it learned about father’s drug and
alcohol use in interviews following the August 2020 incident. The
petition’s count a-1 and b-2 each alleged that “[t]he child[’s]
mother . . . and father . . . have a history of engaging in violent
altercations. On or about 08/21/20, the father pulled the mother’s
hair and threw the mother to the floor. The father pinned the
mother down by placing the father’s knee on the mother’s neck
and choking the mother with the father’s hands, making it
difficult for the mother to breathe, in the presence of the child.
The father was under the influence of alcohol. On prior occasions
the mother and the father pushed each other. Such violent
conduct on the part of the mother and the father endangers the
child’s physical health and safety and places the child at risk of
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serious physical harm, damage, and danger.” Count b-1 alleged
that “[t]he child[’s] father . . . has a history of substance abuse
including marijuana and is a current abuser of marijuana, which
renders the father incapable of providing the child with regular
care and supervision. On 09/04/20, the father had a positive
toxicology screen for marijuana. The child’s mother . . . knew of
the father’s substance abuse and failed to protect the child in that
the mother allowed the father to reside in the child’s home and
have unlimited access to the child. The child is of such a young
age that the child requires constant care and supervision and the
father’s substance abuse inhibits the father’s ability to provide
constant care and supervision of the child. The father has a
history of criminal convictions of Driving Under the Influence of
0.08 percent. Such substance abuse by the father and the
mother’s failure to protect the child endangers the child’s
physical health and safety and places the child at risk of serious
physical harm, damage[,] and failure to protect.”
At a detention hearing on October 9, 2020, the juvenile
court found a prima facie case that Elijah was a person described
by section 300, detained Elijah from father, and released Elijah to
mother’s home. The juvenile court granted father monitored
visitation of at least six hours per week, to be monitored by a
DCFS-approved monitor in a DCFS-approved setting, and gave
DCFS the discretion to liberalize visits. On DCFS’s request,
however, the juvenile court expressly ordered that mother was
not permitted to monitor father’s visits.
DCFS’s jurisdiction and disposition report indicates that
mother and father continued to live in different homes. Father
continued to live with his aunt. In December 2020, mother
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moved into a different home with father’s parents and brother—
Elijah’s paternal grandparents and uncle.
DCFS reported to the juvenile court that despite the court’s
visitation order and order that mother not monitor visitation,
father “had [at least] two unauthorized visits with the child
Elijah, one of which involved a direct lie to the [DCFS] social
worker.” On November 6, 2020, a new social worker assigned to
the case met mother at the motel room where she was still living
at the time. Mother introduced the social worker to her “ ‘friend,
Tim[.]’ ” The social worker later “realized ‘Tim’ was the father”
and contacted mother to notify her that father “is to have
monitored visits, [and] she is not to be the monitor.” Mother
“stated she understands and apologized.” In January 2021,
father told the social worker that “he did not have time to visit
with Elijah because he was busy with his friends,” but also
learned of “a holiday visit with Elijah that was not arranged or
approved by [DCFS] but was reportedly monitored by the
[paternal uncle] at a location away from the family home.” The
social worker again informed mother “of the proper visitation
protocol.”
The juvenile court held jurisdiction and disposition
hearings on January 27, 2021. At the jurisdiction hearing, the
juvenile court sustained the petition as pled on all three counts
as to both mother and father. On disposition, the juvenile court
considered DCFS’s recommendation to remove Elijah from
father’s custody and continue his release to mother. The juvenile
court found by clear and convincing evidence that it was
necessary to remove Elijah from father. The juvenile court stated
on the record supporting his decision to remove Elijah from
father: “I’ll tell you where there’s clear and convincing evidence.
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The event that transpired—father says the child is awake, on the
bed. This is a year-old child, and this event occurs, and this is
not—this has an antecedent as well, so I’m concerned that that
has not been resolved. And if father has the temerity to do that
in the presence of a very young child, there are those risks that
have not been properly resolved.” After further discussion, the
juvenile court specifically found that “continuance in the home of
father is contrary to the child’s welfare” and found “by clear and
convincing evidence there would be substantial danger to the
physical health of the child if returned [to father’s] home, and no
reasonable means by which the child’s physical health can be
protected without removing the child from the father’s physical
custody.” The juvenile court ordered a 52-week domestic violence
program for father, a “full drug and alcohol program,” “weekly on-
demand testing,” anger management counseling, and various
other reunification services, as well as continued monitored
visitation specifically excluding mother as the monitor.
Father filed a timely notice of appeal; mother did not
appeal.
DISCUSSION
Father contends on appeal that the juvenile court erred
when it entered its disposition order—specifically the order
removing Elijah from father’s custody. First, father contends
that the juvenile court erred because it failed to consider
removing father from the family home as an alternative to
removing Elijah from father’s custody. Second, father contends
that the juvenile court erred because it did not state the facts on
the record on which it based its decision to remove Elijah from
father’s custody.
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We disagree with the way father has characterized the
record here, and on that basis disagree with his contentions on
appeal.
Section 361, subdivision (c) requires that for a juvenile
court to remove a child from a parent’s physical custody that it
“shall consider, as a reasonable means to protect the minor . . .
[t]he option of removing an offending parent . . . from the home.”
(§ 361, subd. (c)(1)(A).)
Father was incarcerated after the August 2020 incident
and the record demonstrates that he never moved back into a
home with mother. Mother initially had an emergency protective
order that presumably prohibited any contact between mother
and father, and the record indicates that except for a phone call
while he was still in custody, father complied with the terms of
the emergency protective order. While the record indicates that
father visited Elijah in mother’s home—in violation of the
juvenile court’s detention order—there is no indication anywhere
in the record, and no assertion at argument in the matter that
Elijah was living in father’s home or that father and mother had
again begun living together.
The juvenile court is not required to engage in exercises
that the facts do not suggest or invoke. Here, the juvenile court
had no reason to consider removing father from the home because
nothing in the record suggests that father lived in the home with
Elijah. Removing father from that home would have been both a
legal and factual impossibility.
Father’s second contention is equally unavailing. Father
contends that the trial court failed to state the facts on which it
based its decision to remove Elijah from father’s custody.
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Contrary to father’s assertion, the juvenile court stated
that it found clear and convincing evidence of domestic violence
and unresolved anger issues. “I’ll tell you where there’s clear and
convincing evidence,” the juvenile court said. “The event that
transpired—father says the child is awake, on the bed. This is a
year-old child, and this event occurs, and this is not—this has an
antecedent as well, so I’m concerned that that has not been
resolved. And if father has the temerity to do that in the
presence of a very young child, there are those risks that have not
been properly resolved.”
Father does not challenge the nature of the allegations, the
strength of any particular evidence or the weight the court gave
it, or the sufficiency of these particular findings to support the
juvenile court’s ruling, but rather argues that the juvenile court
did not state the facts on which it based its decision. We disagree.
The reporter’s transcript contains the juvenile court’s very clear
statement regarding what it viewed as father’s unresolved
domestic violence and anger issues that it believed required
removal of Elijah from father’s custody.
We will affirm the juvenile court’s orders.
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DISPOSITION
The juvenile court’s jurisdiction and disposition orders are
affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
CRANDALL, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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