In re D.R. CA2/3 ( 2023 )

Filed 4/27/23 In re D.R. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re D.R, a Person Coming B319546
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No.
CHILDREN AND FAMILY 22CCJP00394A
SERVICES,
Plaintiff and Respondent,
v.
C.R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Charles Q. Clay III, Judge. Affirmed.
Janelle B. Price, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________________________
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INTRODUCTION
C.R. (father) appeals from jurisdictional findings and a
removal order imposed by the juvenile dependency court with
respect to his seven-year-old daughter (the minor.) The court
found, under Welfare and Institutions Code1 section 300,
subdivision (b), that the minor was at risk of serious physical
harm due to domestic violence between father and his girlfriend
in which father was the aggressor. Because substantial evidence
supports the court’s conclusion that father has committed
aggressive acts against his current girlfriend on multiple
occasions and had repeatedly committed similar acts against the
minor’s mother during the course of their relationship, we see no
error in the court’s adjudication or disposition orders.
Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Mother and father have one child together, the minor. At
the time of the proceedings below, the parents no longer lived
together and did not have a family law custody order. The minor
lived with mother and visited with father regularly.
The Department of Children and Family Services
(Department) received a referral regarding the minor on
December 20, 2021, the same date a confrontation between father
and mother occurred. The parents provided dramatically
different accounts of the event. Mother said that father asked her
to meet him at a local park. When she arrived, father approached
her car and began knocking on her window. As mother exited her
1 Allundesignated statutory references are to the Welfare and
Institutions Code.
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car, father punched her in the face and then told his girlfriend
Marisol to “get her.” The women then engaged in a fistfight, with
father cheering Marisol on, urging her to kick mother and hit her
harder. According to father, however, he and Marisol were
hanging out at the park when mother arrived “ready to fight.”
Father recalled that mother and Marisol fought each other and
that mother was the aggressor but he denied all physical
involvement in the fight. He stated that “mother was getting in
his face and trying to fight him too, but he put his hand in the air
and stated he was not going to hit her.” Marisol also described
mother as the aggressor and denied that father was involved in
the fight. Mother requested and obtained a temporary protective
order against father.
The Department filed a petition under section 300,
subdivisions (a) and (b), alleging dependency jurisdiction on the
basis of past domestic violence between father and mother, recent
domestic violence between father and Marisol, marijuana abuse
by father, and an endangering home environment due to
unsecured firearms possessed by father.
On February 3, 2022, the court found father to be the
presumed father of the minor, detained the minor from father,
and released the minor to mother’s custody under the
Department’s supervision. The court ordered monitored visitation
for father twice weekly for two hours with discretion to liberalize.
The Department conducted an investigation. Mother
reported that her relationship with father had ended in 2018
after a domestic violence incident. Their relationship had become
“on and off, as time went on, due to verbal and physical
altercations, primarily due to jealously by [father.]” She described
her current relationship with father as “complicated.” After the
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break-up, father continually harassed mother about her work and
personal life. She described “countless arguments” and aggressive
behavior on father’s part. For example, father would often speak
ill of mother to the minor which caused the minor to “hate her at
times” and “blame[ ] her for not allowing [the minor] to visit
father.” On one occasion, father did not like the shirt the minor
was wearing. He called mother to complain and then ripped up
the shirt. Father repeatedly refused to cooperate with mother
regarding parenting decisions and would not keep to a regular
custody schedule. Mother also recalled an occasion on which she
was speaking with father over Facebook. He was harassing her
and ultimately threatened her with guns, which he pointed at her
through the camera.2 Due to father’s aggressive behavior and
argumentative demeanor, mother often asked the paternal
grandmother to monitor father’s visits with the minor and assist
with custody exchanges.
The Department also interviewed the minor, who was then
six years old. She told the social worker that she often heard
mother and father “fighting with words.” She said that she felt
safe in father’s care and that he never punished her or hit her.
But during two separate interviews, the minor reported hearing3
father choke Marisol and the minor used a hand gesture to
indicate hands around her neck. The minor said she heard father
and Marisol fighting with words, then could not hear Marisol
speak or breathe but heard her coughing. According to mother,
2Mother attached a screen shot of this event to her application for a
restraining order.
3The minor initially said she saw father choking Marisol but later said
she only heard it, as she was in the bathroom.
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Marisol had previously disclosed that father had been physically
abusive toward her. The paternal grandmother had also
expressed concern over father’s abusive treatment of Marisol.
Both the maternal grandmother and an adult maternal
cousin told the Department social worker that father had a
history of domestic violence in his relationship with mother and
that the minor had said to them that father had hit Marisol. They
also reported that father had gone to mother’s house on multiple
occasions and arrived “verbally aggressive and yelling.” For his
part, father denied all domestic violence with both mother and
Marisol. He characterized mother as the aggressor in their
relationship and also said he was “shocked” by the minor’s report
of domestic violence with Marisol. Marisol denied any domestic
violence by father.
On March 15, 2022, the court held an adjudication and
disposition hearing. After admitting the Department’s reports
and hearing arguments of counsel, the court sustained two
jurisdictional allegations under section 300, subdivision (b).
Count b-2 alleged: “[Father and Marisol] engaged in a violent
physical altercation in the presence of the child. On a prior
occasion, the father choked [Marisol] in the presence of the child.
Such violent conduct on the part of the father towards [Marisol]
endangers the child’s physical health and safety and places the
child at risk of serious physical harm, damage, and danger.”
Count b-4 alleged: “[Father] created a detrimental and
endangering home environment for the child in that an
unsecured firearm is kept in the child’s home, within access of
the child. Such a detrimental and endangering home
environment established for the child by the father, endangers
the child’s physical health and safety, creates a detrimental home
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environment, and places the child at risk of serious physical
harm, damage, and danger.” With respect to count b-2, the court
noted the conflicting evidence and specifically found the minor’s
account of the choking incident between father and Marisol to be
credible and persuasive.
As to disposition, the court removed the minor from father,
placed her with mother, and ordered monitored visitation for
father for a minimum of two hours twice a week with discretion
to liberalize. In addition, the court ordered father to participate
in a domestic violence course, random on-demand drug testing, a
parenting course, and individual counseling. The court further
ordered no contact between the minor and Marisol.
Father appeals.
DISCUSSION
Father contends the court’s jurisdictional findings and
disposition orders are unsupported by substantial evidence. We
disagree.
1. Standard of Review
“ ‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. … “[W]e draw all reasonable inferences from the
evidence to support the findings and orders of the dependency
court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” [Citation.] “We do
not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the
findings of the trial court. [Citations.] ‘ “[T]he [appellate] court
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must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence … such that a reasonable trier of fact could find [that
the order is appropriate].” ’ ” ’ ” (In re I.J. (2013) 56 Cal.4th 766,
773.) Substantial evidence is “ ‘evidence which is reasonable,
credible, and of solid value[.]’ ” (In re I.C. (2018) 4 Cal.5th 869,
892.)
Finally, and with respect to the court’s removal order,
which requires proof of substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the
minor by clear and convincing evidence (§ 361, subd. (c)), we
“must determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
1005.)
2. Substantial evidence supports the court’s
jurisdictional finding under section 300,
subdivision (b), based on domestic violence.
Father contends that neither of the jurisdictional findings
under section 300 is supported by substantial evidence. We
conclude the court’s finding of dependency jurisdiction under
section 300, subdivision (b), based on domestic violence is
supported by substantial evidence.4
4Because we affirm the jurisdiction finding and removal order on the
basis of domestic violence, we do not address father’s challenge to the
alternative basis for jurisdiction. (See, e.g., In re I.A. (2011) 201
Cal.App.4th 1484, 1492, overruled in part in In re D.P. (2023) 14
Cal.5th 266 [noting that “an appellate court may decline to address the
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2.1. Legal Principles
Under section 300, subdivision (b), a juvenile court may
exercise dependency jurisdiction if the “ ‘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 … .’ ” (See In re E.E. (2020) 49 Cal.App.5th 195, 205.)
“Although section 300 generally requires proof the child is subject
to the defined risk of harm at the time of the jurisdiction hearing
[citations], the court need not wait until a child is seriously
abused or injured to assume jurisdiction and take steps necessary
to protect the child [citation]. The court may consider past events
in deciding whether a child presently needs the court’s protection.
[Citation.] A parent’s ‘ “[p]ast conduct may be probative of
current conditions” if there is reason to believe that the conduct
will continue.’ [Citation.]” (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1215–1216.)
Domestic violence is a valid basis for the assertion of
dependency jurisdiction over a child. “Domestic violence is always
a serious concern, and any propensity to it is certainly highly
relevant as regards children’s welfare.” (Guardianship of
Simpson (1998) 67 Cal.App.4th 914, 938.) Where, as here, a child
has not suffered serious physical harm or illness as a result of
domestic violence, the jurisdictional allegation must be supported
by evidence that the violence is ongoing, and the child is at
substantial risk of such harm at the time of the jurisdiction
finding. (See In re Daisy H. (2011) 192 Cal.App.4th 713, 717,
evidentiary support for any remaining jurisdictional findings once a
single finding has been found to be supported by the evidence”].)
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disapproved on an unrelated point in In re D.P., supra, 14 Cal.5th
at p. 278; In re Heather A. (1996) 52 Cal.App.4th 183, 194–195.)
Our courts have all too frequently explained the
relationship between section 300, subdivision (b), and domestic
violence: “ ‘[D]omestic violence in the same household where
children are living … is a failure to protect [the children] from the
substantial risk of encountering the violence and suffering
serious physical harm or illness from it.’ [Citation.] Children can
be ‘put in a position of physical danger from [spousal] violence’
because, ‘for example, they could wander into the room where it
was occurring and be accidentally hit by a thrown object, by a
fist, arm, foot or leg … .’ [Citation.] [¶] ‘Both common sense and
expert opinion indicate spousal abuse is detrimental to children.’
(In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5; see
In re Sylvia R. (1997) 55 Cal.App.4th 559, 562; Fields, The Impact
of Spouse Abuse on Children and Its Relevance in Custody and
Visitation Decisions in New York State (1994) 3 Cornell J.L. &
Pub. Pol’y 221, 228 [‘Studies show that violence by one parent
against another harms children even if they do not witness it.’];
Cahn, Civil Images of Battered Women: The Impact of Domestic
Violence on Child Custody Decisions (1991) 44 Vand. L.Rev. 1041,
1055–1056 [‘First, children of these relationships appear more
likely to experience physical harm from both parents than
children of relationships without woman abuse. Second, even if
they are not physically harmed, children suffer enormously from
simply witnessing the violence between their parents. … [¶]
Third, children of abusive fathers are likely to be physically
abused themselves.’ (Fns. omitted.)].)” (In re E.B. (2010) 184
Cal.App.4th 568, 576, disapproved on an unrelated point in
Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.)
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Finally, our courts have frequently observed that “ ‘[p]ast
violent behavior in a relationship is “the best predictor of future
violence.” Studies demonstrate that once violence occurs in a
relationship, the use of force will reoccur in 63% of those
relationships. … Even if a batterer moves on to another
relationship, he will continue to use physical force as a means of
controlling his new partner.’ (Comment, Beating Again and
Again and Again: Why Washington Needs a New Rule of Evidence
Admitting Prior Acts of Domestic Violence (2000) 75 Wash. L.Rev.
973, 977–978, fns. omitted.)” (In re E.B., supra, 184 Cal.App.4th
at p. 576; In re R.C. (2012) 210 Cal.App.4th 930, 941–942.)
2.2. Analysis
Father contends no substantial evidence supports the
court’s jurisdictional finding based on domestic violence. We
disagree.
As noted, the minor was not injured during the incident
between father and Marisol described by the minor. Accordingly,
to support jurisdiction under section 300, subdivision (b), the
court had to find that the minor was at substantial risk of serious
physical harm. Substantial evidence supports that finding. First,
the minor heard father choking Marisol. Although she was not in
the immediate area at that time, she was nearby and could be in
harm’s way in the future. Father responds that the minor’s
account was internally inconsistent and lacking in sufficient
detail to establish that the choking incident she described had
actually occurred. But the court explicitly found the minor’s
account to be credible. In keeping with the substantial evidence
standard of review, we consider whether there is any substantial
evidence, contradicted or uncontradicted, to support the court’s
decision. (See, e.g., In re R.T. (2017) 3 Cal.5th 622, 633.) Standing
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alone, the minor’s credible statements to social workers on two
different occasions constitutes substantial evidence. We note that
the minor also contemporaneously reported the incident to two
other adults, the paternal grandmother and a paternal adult
cousin.
Second, the choking incident was not, as father insists, a
“singular incident of bad judgment.” Instead, it was part of a
long-standing pattern of domestic violence in father’s
relationships which, as we have said, may be a harbinger of
future violence in the home. Marisol disclosed to mother early in
her relationship with father that father was physically abusive,
and father’s family members expressed concern over his
treatment of her. Further, mother reported that father was
physically abusive during their relationship and their
relationship ended due to ongoing instances of domestic violence.
Father’s ongoing emotional volatility, while falling short of
physical abuse, is also well documented. Father’s use of firearms
to threaten mother during a Facebook call and the incident at the
park that gave rise to the present proceeding are but two of the
numerous examples contained in the record before us.
Third, father has repeatedly denied that he has physically
abused either mother or Marisol, despite substantial evidence to
the contrary. And to the extent he appears to concede that some
evidence might exist concerning the choking incident described
by the minor, he minimizes the seriousness of that incident by
suggesting it was the product of “bad judgment.” This is cause for
concern because “[o]ne cannot correct a problem one fails to
acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.)
In sum, substantial evidence supports the court’s
conclusion that the minor is at a substantial risk of harm in
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father’s custody due to the existence of domestic violence in the
home.
3. Substantial evidence supports the removal order.
Father also argues the court’s disposition order suffers from
several errors.
As an initial matter, father asserts that the court did not
issue a removal order because, at the conclusion of the hearing,
the court announced its ruling and stated, “The parents and
guardians shall retain physical custody of the child who is placed
under the supervision of the Department of Children and Family
Services.” He suggests that the court’s use of the plural
(“parents”) rather than the singular (“parent”) at the hearing
indicates that the court did not intend to remove the minor from
his custody, notwithstanding the written minute order to the
contrary.
Father correctly notes that in most cases a conflict between
a written order and a reporter’s transcript should be resolved in
favor of the transcript. (See People v. Smith (1983) 33 Cal.3d 596,
599; In re Merrick V. (2004) 122 Cal.App.4th 235, 249 [citing
cases].) The rule is not absolute, however. (See People v. Smith,
at p. 599 [rejecting rigid approach and noting that “ ‘whether the
recitals in the clerk’s minutes should prevail as against contrary
statements in the reporter’s transcript, must depend upon the
circumstances of each particular case’ ”].) We have reviewed the
reporter’s transcript, father’s case plan, and the clerk’s minute
order, and conclude the court intended to remove the minor from
father’s custody. This result is consistent with the court’s order,
made at the same hearing, that father should receive monitored
visitation with the minor twice a week—an order that would be
unnecessary if not for the removal of the minor from his custody.
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As to father’s contention that the removal order is not
supported by substantial evidence, we disagree. Removing a child
from a parent’s custody is a matter of last resort. Accordingly,
section 361, subdivision (c), limits “ ‘the court’s authority to
restrict a parent’s rights following the exercise of dependency
jurisdiction.’ ” (In re S.R. (2020) 48 Cal.App.5th 204, 218–219.)
The provision states in pertinent part: “A dependent child shall
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 of any of the following circumstances[:] … [¶] (1) 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
minor [was] 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 parent’s … physical
custody. …” (§ 361, subd. (c)(1).) As noted, we “must determine
whether the record, viewed as a whole, contains substantial
evidence from which a reasonable trier of fact could have made
the finding of high probability demanded by this standard of
proof.” (Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.)
“A removal order is proper if it is based on proof of
(1) parental inability to provide proper care for the minor[s] and
(2) potential detriment to the minor[s] if [they] remain[ ] with the
parent. [Citation.] The parent need not be dangerous and the
minor need not have been harmed before removal is appropriate.
The focus of the statute is on averting harm to the child.” (In re
T.W. (2013) 214 Cal.App.4th 1154, 1163.) The juvenile court may
consider the parent’s past conduct as well as the present
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circumstances. (See, e.g., In re John M. (2012) 212 Cal.App.4th
1117, 1126.)
As discussed ante, domestic violence in the home places a
child in danger of serious physical harm. Here, as discussed at
length in the prior sections, father was the aggressor in a choking
incident with Marisol when the minor was within earshot. He
was also the aggressor in the altercation with mother that led the
Department to become involved with this family. These recent
incidents are part of a larger pattern of father’s physical violence
against his domestic partners and have been accompanied by
other forms of aggressive and volatile behavior. On this point,
father simply reasserts the arguments made as to the
jurisdictional findings. They fare no better with respect to the
removal order, taking into account the increased burden of proof
on the Department. (Conservatorship of O.B., supra, 9 Cal.5th
p. 1005.)
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DISPOSITION
The adjudication and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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