In re Alonso M. CA2/8 ( 2023 )

Filed 7/18/23 In re Alonso M. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ALONSO M., a Person B319985
Coming Under the Juvenile Court
Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 22CCJP00607A)
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Hernan D. Vera, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
——————————
We affirm the trial court’s orders finding jurisdiction and
removing Alonso M. from A.M.’s (Father) custody. Because
Father engaged in multiple acts of domestic violence while taking
no steps to address the risk of recurrence, the trial court’s orders
regarding jurisdiction and removal had support in the record.
We affirm.
BACKGROUND
I. Initial investigation, removal and detention
Alonso M. is nine years old, and his parents are mother
S.O. (Mother) and Father.
On January 11, 2022, the Los Angeles County Department
of Children and Family Services (DCFS) received an anonymous
referral to the child protective hotline. According to the caller on
the evening of December 28, 2021, Mother and Father physically
fought. Alonso M. saw Father choking Mother, and she was
losing consciousness. Alonso M. saw Mother with a bite mark on
her chin and Father with a bite mark on his chest, both parents
were bleeding, and the injuries were not present before the
domestic altercation. Alonso M. reported that Father threatened
Mother with a gun, and there were four or five guns in the home.
Alonso M. said that he had seen his parents physically fight on
multiple occasions.
On January 11, 2022, DCFS spoke with Alonso M.’s school
psychologist. The psychologist reported having the “same
concerns” as DCFS, but the report does not specify the nature of
those concerns. The psychologist reported that Alonso M. said
that his parents broke up on December 28, 2021, and that Father
moved out that day. The December 28, 2021 date was the same
date that the anonymous caller indicated that a physical fight
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took place in the home, but the school psychologist did not
discuss any potential domestic violence in the home.
On January 13, 2022, DCFS spoke to Alonso M. As
reported by Alonso M., his parents do not physically abuse or
physically discipline him. He feels safe in his home with his
parents. He also said, “ ‘I’m afraid my dad will hurt my mom
again.’ ” His parents yell at each other when they get mad, and
Father punches things when he gets upset. He further said,
“ ‘One time, my dad got mad and choked my mom. He bit her,
and she bit him back.’ ” In addition, Alonso M. stated, “ ‘I saw my
mom on her bed. . . . She looked like she couldn’t see. I kept
telling my dad to call the ambulance for both of them. My dad
didn’t call the ambulance. I saw my dad punched the TV. I was
asleep, and I woke up, and my dad was screaming.’ ” He had
seen his parents fight many times without specifying if the fights
were physical, and this was the first domestic violence incident
he saw between his parents. He summarized the incidents as
follows: “ ‘I only saw him choke her one time, push her two times,
and I never seen him punch her.’ ” In addition, Father got a gun
because Mother was talking to another man, and there were five
guns in the home with three in Mother’s bedroom and two in the
kitchen. Father told him that Father had killed a friend with a
gun.
DCFS spoke to Mother on January 14, 2022. According to
Mother, this was the first domestic violence incident between
Father and her. She stated, “ ‘He just grabbed me, and then he
left.’ ” Father never hit her or bit her, and she did not bite him.
In addition, the mark on her neck was a scratch, and there were
no weapons in the home. Mother, Father, and Alonso M. had
resided together. However, Mother agreed to a voluntary safety
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plan where the child was to live with the maternal grandmother
for seven days. Mother elected not to seek a restraining order
when DCFS asked. DCFS also offered to provide Mother with
information regarding restraining orders when Mother was
interested.
On January 25, 2022, DCFS spoke to Father. Father
stated, “ ‘Nothing happened. There was no domestic violence
incident, never.’ ” He said he and Mother had verbal arguments.
He elaborated, “ ‘Maybe I’ve punched a wall or two.’ ” He said
there were no firearms in the home except for a gun registered to
Mother, which was locked in a safe. He declined anger
management courses. Father said he sleeps in his shop. He
explained that he only stopped by the home at night and in the
morning to greet Alonso M. and to sometimes take Alonso M. to
school.
On January 31, 2022, DCFS spoke to Mother and Alonso
M. in the family home. The social worker saw a hole in the door
to Alonso M.’s bedroom. Mother said that Father also broke the
bathroom door. Mother stated that she sleeps in the living room
and that Alonso M. sleeps in the bedroom. In addition, Mother
said that Father retuned to the home two days before the
interview and took a shower. Mother also stated that there were
no guns in the home.
On February 11, 2022, DCFS reviewed Los Angeles Police
Department call logs for the family home. A call log dated
May 22, 2021 provided, “ ‘PR heard male and female arguing,
then heard sounds of poss struggle and female crying. PR does
not know who lives in [the] apartment.’ ”
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II. Removal, detention, and DCFS’s petition
On February 15, 2022, DCFS sought and received removal
of Alonso M. from the custody of both Mother and Father. DCFS
placed him with the maternal grandmother.
On February 22, 2022, the trial court heard DCFS’s request
for detention. Both Alonso M. and Mother were represented by
counsel. Father did not appear at the detention hearing. Both
DCFS and Alonso M.’s counsel requested detention from the
parents. Mother submitted on detention. In response to the trial
court’s inquiry, Mother indicated through counsel that she did
not seek a restraining order. Father did not appear at the initial
detention hearing and was arraigned at a later hearing the same
day. The trial court ordered Alonso M. detained from both
parents.
In its petition, DCFS alleged that domestic violence from
both parents in the child’s presence violated Welfare and
Institutions Code section 300, subdivisions (a) and (b).1 DCFS
also alleged that Mother failed to protect the child from domestic
violence, creating another basis for jurisdiction.
III. Jurisdictional and dispositional report
DCFS completed a report for the jurisdictional hearing, and
interviewed Alonso M. again. According to him, he woke up to
his parents yelling on the day of the incident. He saw Mother
crying and said, “ ‘My mom was crying because she didn’t want to
fight anymore.’ ” Alonso M. saw a bite mark on Mother’s neck
and on Father’s chin. Mother asked him to call 911, but he did
not because he did not want Father going to jail again.
Regarding the choking, he said, “ ‘I thought that he did but
1 All further statutory citations are to the Welfare and
Institutions Code.
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I don’t think he did. . . . I was asleep and I woke up to them
yelling. He wasn’t choking her. I told him to stop because he had
her phone.’ ” Father punched and broke the television, but
Alonso M. denied seeing Father do it. Father had broken
televisions previously. There was no prior domestic violence, and
he said he had not seen Father hit or push Mother. By speaking
to the social worker, he was worried that his parents would get in
trouble and Father would get arrested again.
With regard to guns, Alonso M. stated that Father grabbed
a gun, put it in his pocket and left the house. Alonso M. said the
gun had no bullets because he hid the clip as he knew Father
would hurt someone. He also said that he did not know how
many guns were in the house and he just said a “random
number.”
DCFS also interviewed Mother for the jurisdictional report.
As Mother reported, she has been in a relationship with Father
for 10 years. They had disagreements but there had been no
physical altercations. Regarding the incident, she and one of
Father’s friends bailed Father out of jail prior to Christmas in
2021. Father was uncomfortable with how friendly his friend
was with Mother, and the parents argued. Mother said that
Father is “ ‘very protective of who I speak with.’ ” In addition, the
argument was in the early morning, and Alonso M. came out of
his room. She was “spacing out” which made her son worried,
and Alonso M. asked Father to call an ambulance when she was
spacing out. Father said that he would call 911 to show Alonso
M. that Mother was doing fine. Father did not strangle her, did
not push her, did not shove her, and did not bite her. She did not
bite Father. She had a scratch on her neck because her dog got
its paw stuck on her necklace and pulled it. She also said that
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Father releases his anger by hitting things. He punched the
television on the day of their argument, and he punched the
closet door the previous year. She and Father argue about
Father talking to other women or getting arrested. There were
no guns in the home during the incident. She was still in a
relationship with Father, and they planned to get their family
back together. She said that she did not live with Father as she
was informed they could not live together.
DCFS also spoke to Father for the jurisdictional report.
Father said he had a verbal disagreement with Mother and
denied that any physical conflicts took place. Father said he had
been in a relationship with Mother for 10 years and there had
been no domestic violence. Regarding the incident, Father said
he and Mother had a verbal disagreement where he raised his
voice, but both of them calmed down. He denied any biting or
bite marks. He said that Alonso M. was tricked by the school
therapist to disclose information. He further indicated that
Alonso M. has a creative imagination, which explains why his son
was worried about the incident. He also denied having any guns
and said that Mother had a gun that she keeps locked in a safe in
her bedroom.
DCFS interviewed the maternal grandmother, and she did
not suspect any domestic violence between Mother and Father.
The maternal grandmother said the parents have not argued in
her presence, and she had seen no suspicious marks or bruises on
Mother.
DCFS also spoke to a maternal uncle. He said he had
contact with Mother and Alonso M. almost daily. He did not
suspect any domestic violence. He also said that he had not seen
any suspicious marks or bruises on Mother.
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DCFS interviewed Mother’s friend of four years. She had
no knowledge of any domestic violence.
The jurisdictional report quoted from a police report. In
the police report, which was generated in response to the incident
where Mother and Father had a conflict, Father denied any
domestic violence. Alonso M. said that he woke up to his parents
arguing and went to his parents’ bedroom. He saw Father
standing and Mother laying on the bed. He said Father left the
home, returned home, and his parents reconciled. Mother denied
any domestic violence. She said she had an argument with
Father and that Alonso M. only saw the aftermath of the
argument, which included a broken door.
DCFS offered both parents community referrals regarding
potential services.
IV. Jurisdictional and dispositional hearing
On April 13, 2022, the trial court presided over the
jurisdictional hearing. The trial court provided the parties with a
tentative ruling to begin the hearing, explaining that the court
was inclined to sustain the allegation under section 300,
subdivision (b), regarding domestic violence while dismissing the
domestic violence allegation under subdivision (a). DCFS asked
the court to sustain the petition in its entirety as did Alonso M.’s
counsel. Counsel for Father and Mother both asked the trial
court to dismiss the petition in its entirety. No party raised any
objection under section 355. Consistent with its tentative, the
trial court dismissed the domestic violence count under section
300, subdivision (a), as it found that no firearm was involved.
The court sustained the domestic violence count under section
300, subdivision (b), with regard to Father, explaining, “I think it
is crystal clear, based upon Alonso’s statements, that father did
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cause violence on mother, [] both on that occasion and on
previous occasions as well.” The trial court amended the
sustained allegation and removed any reference to Father
choking Mother, finding that the record was unclear on that
point. The trial court also removed any references to guns in the
sustained allegation. For Mother, the court amended the charge
to find that Mother failed to protect Alonso M. from Father’s
domestic violence, and removed any finding that Mother engaged
in domestic violence. In summary, the trial court found that
Father engaged in domestic violence and that Mother failed to
protect Alonso M. from that domestic violence.
For the dispositional hearing held on the same day, DCFS
and Alonso M.’s counsel asked the court to remove Alonso M.
from the parents’ custody. Both Mother and Father requested
that the trial court place Alonso M. in their custody. The court
removed Alonso M. from his parents explaining, “The court finds
removal is necessary because of the incident on December 28 of
2021, as well as the other multiple incidents of violence that were
reported by Alonso that could have resulted in Mother’s serious
injury or even death.”
DISCUSSION
I. The trial court properly asserted jurisdiction over
Alonso M.
The juvenile court’s jurisdictional findings under
section 300 must be made by a preponderance of the evidence.
(§ 355, subd. (a).) On appeal, we review jurisdictional orders for
substantial evidence. (In re D.C. (2015) 243 Cal.App.4th 41, 55.)
We view the record in the light most favorable to the juvenile
court’s determinations, drawing all reasonable inferences from
the evidence to support the court’s findings and orders. (In re I.J.
9
(2013) 56 Cal.4th 766, 773 (I.J.).) The pertinent question is
whether substantial evidence supports the finding, not whether a
contrary finding might have been made. (See In re T.W. (2013)
214 Cal.App.4th 1154, 1162.) Issues of fact and credibility are
the province of the juvenile court, and we neither reweigh the
evidence nor exercise our independent judgment. (I.J., at p. 773.)
It is well-settled that exposing a child to domestic violence
is a basis for dependency jurisdiction. (In re E.B. (2010) 184
Cal.App.4th 568, 576.) This is true because children face physical
danger and can be injured accidentally when one parent engages
in domestic violence against another. (Ibid.)
Here, there is substantial evidence to support the trial
court’s finding that Father engaged in domestic violence that
provided a basis for jurisdiction. During the primary domestic
violence incident at issue, Alonso M. stated that Father bit
Mother, and that she bit him back. Alonso M. stated that he saw
bite marks on Mother’s neck and Father’s chin. Mother also
stated she had a scratch on her neck, but said it was caused by
her dog. In addition, Mother corroborated that this was a
domestic violence incident where Father grabbed her before
letting her go when DCFS initially interviewed her. More
generally, Alonso M. also stated that he saw Father push Mother
two times, which supports the trial court’s determination that the
domestic violence was not an isolated event. Similarly, he also
stated that Father punched things when he gets upset, including
breaking a television. Mother and Father also said that Father
punches household items.
In addition, a police department log from May 22, 2021,
notes that the person calling police heard a male and a female
arguing and heard sounds of a possible struggle in the family
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home. Mother also described Father’s controlling behavior by
indicating that Father is “ ‘very protective of who I speak with.’ ”
Even discounting the evidence in the record regarding Father
choking Mother and Father using a gun to threaten Mother
because the trial court discounted that evidence, the record
contains evidence of multiple incidents of physical abuse and at
least one time that Mother had visible physical injuries. Because
Alonso M. saw the domestic violence, he was in harm’s way. This
record is an appropriate basis for jurisdiction. (In re E.B., supra,
184 Cal.App.4th at p. 576.)
Father urges us to consider evidence contradicting Alonso
M.’s summary of the domestic violence. While it is true that
Father denied domestic violence and that Mother mostly denied
domestic violence, the trial court determined that Alonso M.’s
statements regarding Father’s spousal abuse were credible.
Similarly, while Alonso M.’s statements were not entirely
consistent, the trial court determined that his statements
regarding the domestic violence were entitled to weight. We do
not disturb the trial court’s credibility determinations on appeal.
(I.J., supra, 56 Cal.4th at p. 773.)
In addition, Father argues that Alonso M.’s statements are
hearsay and cannot be a basis for jurisdiction under section 355,
subdivisions (c)(1) and (d). Under section 355, subdivision (c)(1),
“If a party to the jurisdictional hearing raises a timely objection
to the admission of specific hearsay evidence contained in a social
study, the specific hearsay evidence shall not be sufficient by
itself to support a jurisdictional finding or any ultimate fact.”
As the code provides, a trial court need only apply section 355,
subdivision (c)(1), when a party raises a timely objection at the
hearing. Here, no party raised a timely objection during the
jurisdictional hearing, therefore, section 355, subdivision (c)(1),
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was inapplicable in the trial and is equally inapplicable in this
appeal. Father also cites to section 355, subdivision (d), but that
subdivision relates to any party’s right to challenge the veracity
of hearsay evidence and does not establish any legal error either.
By failing to raise it in the trial court, Father waived the only
potentially viable argument under section 355, subdivision (c)(1).
Finally, DCFS requests judicial notice of a subsequent
minute order from the trial court, where Alonso M. was returned
to Mother’s custody. While this request is unopposed, this ruling
does not relate to mootness, an exception to the general rule that
appellate courts should not consider facts developed after the
trial court’s ruling on appeal. (In re M.F. (2022) 74 Cal.App.5th
86, 110, review den. Apr. 27, 2022.) Here, because DCFS does
not point to an exception which would allow us to consider this
order, we apply the general rule that postappeal facts are not
germane to our consideration and deny the request. (In re Zeth
S. (2003) 31 Cal.4th 396, 405.)
II. Substantial evidence supports the removal order
Before the juvenile court may order children physically
removed from their parents’ custody, it must find by clear and
convincing evidence that the children would be at substantial
risk of harm if returned home and there are no reasonable means
by which they can be protected without removal. (§ 361,
subd. (c)(1).) “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 fact finder could
have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012.) We
must view the record in the light most favorable to the prevailing
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party, and defer to the trial court’s credibility determinations and
factual findings. (Ibid.)
“In determining whether a child may be safely maintained
in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B.(2018) 26 Cal.App.5th 320, 332.)
“A removal order is proper if it is based on proof of (1) parental
inability to provide proper care for the minor and (2) potential
detriment to the minor if he or she remains 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.,
supra, 214 Cal.App.4th at p. 1163; accord, In re D.B., at p. 328.)
Here, the same evidence that supported the juvenile court’s
jurisdictional finding under section 300, subdivision (b), also
supported its removal order. (§ 361, subd. (c)(1); see In re D.B.,
supra, 26 Cal.App.5th at p. 332 [“ ‘jurisdictional findings are
prima facie evidence the minor cannot safely remain in the
home’ ”].) The record supports the trial court’s determination
that Father attacked Mother more than once, and that Alonso M.
witnessed the violence. Even under the more rigorous standard
for removal, there was sufficient evidence for the trial court to
conclude that Alonso M. could not be safely placed in Father’s
care because of the potential that Alonso M. would suffer physical
injury. (In re T.W., supra, 214 Cal.App.4th at p. 1163.) In
addition, Father continues to deny that he physically abused
Mother which increases the possibility of the violence recurring.
(In re V.L. (2020) 54 Cal.App.5th 147, 156.) Father also took no
13
remedial measures, such as participating in programs, to
ameliorate the risk of potential harm to Alonso M. (Ibid.)
III. The trial court properly determined that reasonable
efforts were made to prevent removal
The court must determine “whether reasonable efforts were
made to prevent or to eliminate the need for removal of the minor
from his or her home” and “shall state the facts on which the
decision to remove the minor is based.” (§ 361, subd. (e).)
Father asserts that DCFS made no reasonable efforts to
prevent removal, but the record provides otherwise. DCFS asked
Mother about whether she would apply for a restraining order
against Father, and offered Mother information regarding
restraining orders. The trial court also inquired about this
possibility at the detention hearing. Mother did not pursue a
restraining order against Father. One of the reasons for a
restraining order in the dependency context is that domestic
violence is less likely to reoccur if the parents are separated by an
enforceable legal order. The parents seemed to make some
progress towards this intermediate goal as Mother claimed that
Father moved out. Even on this front, however, there was
evidence in the record that Father continued to visit the family
home. With regard to potential programs, DCFS offered both
parents community referrals. At the dispositional hearing,
however, Father had not enrolled in anger management classes
or any other services. In addition, Father continued to deny the
domestic violence. Here, DCFS offered the parents services and
encouraged them to live separately while they engaged in
programs to ameliorate potential risks to Alonso M. This
establishes substantial evidence of reasonable efforts to prevent
removal.
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Father’s reliance on In re Ashly F. (2014) 225 Cal.App.4th
803 and In re Henry V. (2004) 119 Cal.App.4th. 522 is misplaced.
Regarding In re Ashley F., the mother there completed a
parenting program and had exhibited progress in ameliorating
the risk of future abuse at the dispositional hearing. (Id. at
p. 810.) Similarly, in In re Henry V., the social worker conceded
that the mother was taking advantage of program services by the
time of the hearing. (Id. at p. 529.) Moreover, the physical
abuse of the child took place a single time in In re Henry V.
(Ibid.) Here, in contrast, Father has engaged in no services and
committed multiple acts of domestic violence. As a result, the
court committed no error here.
DISPOSITION
The orders are affirmed.
VIRAMONTES, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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