In re I.R.

Filed 2/24/21; certified for publication 3/2/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re I.R., a Person Coming Under B307093
the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP03478)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.R.,
Defendant and Appellant;
I.R.,
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed in part and reversed in part.
Johanna R. Shargel, under appointment by the Court
of Appeal, for Defendant and Appellant E.R.
Karen B. Stalter, under appointment by the Court of
Appeal, for Appellant I.R., a Minor.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, Jane Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
Following an incident of domestic violence between R.R.
(Mother) and E.R. (Father) witnessed by their infant daughter,
I.R., and Mother’s son, D.R., the Los Angeles County Department
of Children and Family Services (DCFS) instigated dependency
proceedings on behalf of both children. After a combined
jurisdictional and dispositional hearing, the juvenile court found
jurisdiction over the children under Welfare and Institutions
Code1 section 300, subdivision (b)(1), and ordered I.R. removed
from Father and released to Mother. On appeal, both Father
and I.R. challenge the removal of I.R. from Father. We conclude
the evidence does not support either of the findings necessary to
justify removal under section 361, subdivision (c)(1). Specifically,
the record does not contain substantial evidence that I.R. would
be in “substantial danger” in Father’s care, nor does it contain
substantial evidence that there were no “reasonable means”
to protect I.R. other than removing her from Father. (§ 361,
subd. (c)(1).)
I.R. further challenges the dispositional order to the extent
it requires Mother, who is not a party to this appeal, to submit to
drug testing only upon reasonable suspicion of drug use. Given
the lack of any connection between drug use and the domestic
1All subsequent unspecified statutory references are to the
Welfare and Institutions Code.
2
violence underlying the petition, we conclude the court was acting
within its discretion in denying I.R.’s request that Mother submit
to more extensive drug testing.
Accordingly, we reverse the dispositional order to the
extent it removes I.R. from Father.
FACTS AND PROCEEDINGS BELOW
A. Family Circumstances and Incident Leading to
Juvenile Court Jurisdiction
I.R., born in September 2018, is the daughter of Father and
Mother. Mother is not a party to this appeal. I.R. has a maternal
half sibling, D.R., born in November 2008, Mother’s son from a
previous relationship.2 Prior to the instant dependency
proceedings, Father either lived in the family home with Mother,
D.R., I.R., and the maternal grandmother, or was a frequent
overnight guest there.3
On May 9, 2020, Mother called law enforcement and
reported a domestic violence incident with Father. I.R. and
D.R.—then 20 months old and 11 years old, respectively—were
in the home when Mother and Father got into a loud argument.
Hearing the yelling, D.R. left his room and saw Father throw a
baby shoe at Mother’s chest and slap one side of her face. Father
hit Mother with enough force to knock her earring off her ear,
causing redness and swelling on the side of her face. Father fled
the home before law enforcement arrived.
2 The whereabouts of D.R.’s father are unknown, and he
did not participate in the dependency proceedings below.
3The record contains inconsistent statements by Mother
and Father as to whether Father ever lived in the family home.
3
Law enforcement instigated a referral with DCFS based
on the incident and on Mother’s statement the night of the
incident that Father had physically assaulted her approximately
eight months earlier as well. The children remained in the
family home in Mother and the maternal grandmother’s care.
B. Pre-Petition Investigation and Efforts to
Locate Father
Approximately two weeks later, social workers visited the
children’s home and interviewed Mother. At that time, Mother
told DCFS that “more [was] being made out of this than needs
to be.” Mother stated that she had anger management issues,
and that Father had slapped her only after she “said ‘something
terrible’ ” to him. Mother said the previously unreported
domestic violence incident eight months prior had not been
physical, and that the more recent incident was the first time
Father had hit her. Social workers interviewed D.R. as well.
D.R. said that Father is “not nice” to Mother, that Mother
and Father yell a lot, and that another time in the past Father
told him to go into his room with I.R. and shut the door, after
which D.R. heard a loud slap. D.R. stated he was scared by both
incidents, but that he felt safe around Father and in his home.
D.R. also stated that Father was nice to him and his sister, and
that Father had never mistreated either of them.
Neither child showed any signs of abuse or neglect, and I.R.
appeared healthy and developmentally on target. D.R. reported
that he is receiving individual therapy for anger management
issues because “sometimes he gets so angry that he just wants
to yell or hit something.” D.R.’s mental health issues were
the subject of a previous DCFS referral. The social worker who
handled that referral indicated D.R.’s aggressive behavior was in
4
response to being bullied at school, and that Mother had
addressed these issues appropriately and enrolled him in
counseling.
Both Mother and D.R. reported to social workers that
Father had come to visit I.R. almost every day since leaving the
home the night of the May 9 incident, and that he played with
D.R. during these visits as well. D.R. stated that Father spoke
with Mother during these visits, and that the two did not fight.
Mother denied being home when Father came for visits.
DCFS learned that neither Mother nor Father had any
criminal history. Mother had a number inconclusive prior
child welfare referrals with regard to physical abuse and neglect,
primarily involving D.R. For example, a referral from December
2015 alleged that Mother hit D.R. with the metal portion of a
belt; another referral from February 27, 2019 (by the maternal
grandmother) alleged that Mother had been using drugs. Father
had no history of child welfare referrals.
DCFS was unable to make contact with Father during its
pre-petition investigation despite numerous attempts. The social
worker called Father several times and left detailed messages
with call-back requests, mailed an “[a]ttempt to [c]ontact” letter
to Father at the paternal grandmother’s address, visited the
paternal grandfather’s home where the paternal grandfather
indicated Father was living, and asked the paternal grandfather
to instruct Father to contact DCFS. At DCFS’s request, Mother
also gave Father the social worker’s card and asked he contact
DCFS. Father did not contact DCFS in response to any of these
efforts.
On June 25, 2020, DCFS obtained a removal warrant,
which effectively prohibited Father from having contact with
5
I.R. before further proceedings. DCFS informed Father of
the removal warrant via a detailed phone message (which
also requested a call back) and by mailing him a copy of the
removal order and notice of hearing. According to the maternal
grandmother, Father stopped visiting I.R. after the removal
warrant issued.
C. Section 300 Petition and Detention Hearing
On June 29, 2020, DCFS filed a petition pursuant to
section 300, subdivisions (a) and (b)(1), alleging that Mother and
Father have a history of engaging in violent verbal and physical
altercations, including specifically the May 9, 2020 incident, and
that Mother failed to protect the children by allowing Father
unlimited access to the children and their home.
The detention hearing took place on July 2, 2020. Father
personally participated in the hearing, which participation
constituted his first interaction with DCFS. In the detention
report provided to the juvenile court that day, DCFS
recommended I.R. continue to be detained from Father
and remain in the Mother’s care during a period of family
reunification efforts. The report identified risk factors requiring
detention that implicated both Mother and Father, but also
described Mother as having a “history of protective capacity
for her children and [as] ha[ving] addressed DCFS concerns in
a positive way during past referral investigations.” It further
noted that Mother took responsibility for her role in the domestic
violence. The report viewed Father’s avoidance of DCFS and
law enforcement as demonstrating an unwillingness to take
responsibility for his role in the domestic violence. DCFS was
also concerned about the effects of the domestic violence on
D.R., who struggled with his own anger management issues.
6
The juvenile court found Father to be I.R.’s presumed
father, found prima facie evidence that I.R. was a child described
by section 300, and denied Father’s request for I.R.’s release
to his custody. I.R. was detained from Father and released
to Mother’s custody, with Father to receive six hours per week
of monitored visitation. No visits were to occur in the Mother’s
home, Mother was prohibited from monitoring the visits, and
DCFS had discretion to liberalize.
D. Jurisdiction and Disposition Hearing
At the July 29, 2020 combined jurisdiction and disposition
hearing, the juvenile court received into evidence DCFS’s
detention and jurisdiction/disposition reports, as well as a letter
verifying Father had enrolled in a 36-week domestic violence
education course on July 13, 2020, 11 days after the detention
hearing.
1. The jurisdiction/disposition report
The jurisdiction/disposition report described interviews
with Father and the maternal grandmother, as well as additional
interviews with D.R. and Mother.
a. Father’s statements
The report contained Father’s description of the May 9
incident. He recalled Mother “got loud,” and that he ignored
her and tried to grab I.R. and walk away, but Mother already
had the child. Father then started to walk outside, when
Mother pushed him, and “it just happened. I just flipped.”
Father acknowledged slapping Mother but denied throwing a
shoe at her. Father stated Mother is easily triggered and starts
screaming, but that he is a very calm person and that “walking
7
away” had “always worked” in the past. He denied any prior
domestic violence incidents with Mother and stated he felt
“really bad” about the situation. He said, “[i]t was only a one-
time thing. I don’t get aggravated. I’m not a bad parent to
my daughter. I have never been a threat.” Father stated he
no longer has a relationship with Mother, because he does
not “want that to happen again,” and wants to “focus on [I.R.]”
Father provides financially for I.R., and buys her food and
clothes whenever needed.
The report reflected Father had been visiting I.R.
consistently, five days per week, for two and one-half hours per
visit, without incident. It further acknowledged that, although
Father had avoided contact with DCFS during the detention
investigation, he had since been cooperative with the DCFS
dependency investigator and was open to receiving services.
b. Mother’s statements
Mother stated that she and Father fought “a lot,” and
that during the May 9 incident she had “us[ed] ugly cuss words
towards [Father]” and pushed him. Consistent with Father’s
statements, she described him as a person who avoided conflict
and did not often yell.
Mother stated Father was a great father and confirmed
he provided financially for I.R. Mother stated she knew what
Father did was wrong, but she did not consider their relationship
to be one involving domestic violence. Mother said she had
exaggerated the May 9 incident to the police because she was
upset, and that “[i]t was fine the way it was before.” Mother
said she was not currently in a relationship with Father. She
acknowledged her prior DCFS referrals, but said they were
all false allegations.
8
Regarding her substance use, Mother said she had started
using methamphetamine at age 17 and used it “all day, every
day” until she became pregnant with D.R. at 22 years old, at
which time she quit “cold turkey.” She said she now smoked
marijuana after the children were asleep at night. Mother had
not enrolled in any programs, but stated she was open to doing
so.
Mother reported that, during the period in her life when
she was heavily using methamphetamine, she had been a
victim of domestic violence at the hands of D.R.’s father. On
one occasion (in approximately 2008), D.R.’s father physically
assaulted her while she was pregnant with D.R., beating her so
severely that it resulted in a cracked skull and black eyes.
c. The maternal grandmother’s statements
The maternal grandmother said she never witnessed the
domestic violence between Mother and Father, but that D.R. had
told her “a while back” that “he saw [F]ather hit [M]other before
and push her, and that this happened a few times.” She was
scared of Father because he was always terse, rude to her, and
she believed his family members were gang affiliated.
d. D.R.’s statements
D.R. told DCFS he felt safe with Mother, but that she was
easily triggered and yelled a lot. D.R. described Father as “the
best,” because Father never hit, yelled, or argued with him.
D.R. began crying when he told the social worker that he never
had contact with his biological father, that this “really hurts his
feelings,” and that he was worried about losing Father as well.
D.R. reported that he continued to have difficulty managing his
anger and controlling his violent reactions to severe bullying at
9
school. He remained in individual therapy to address these
issues.
2. Parties’ arguments and the juvenile
court’s ruling
At the jurisdictional portion of the hearing, the juvenile
court sustained the section 300, subdivision (b)(1) failure to
protect count in the petition as to both parents,4 based on their
failure to make progress in addressing the domestic violence
leading to dependency jurisdiction.
At the disposition portion of the hearing, I.R.’s counsel
argued that clear and convincing evidence did not support
removal from Father. I.R.’s counsel specifically argued that “the
safety plan to allow [I.R.] to remain in Father’s custody is that
the father and the mother are not to be together,” something they
had been doing since the removal warrant issued. Counsel noted
that two paternal relatives had been approved as monitors, and
they could facilitate Mother and Father avoiding contact with one
another while transferring I.R. I.R.’s counsel further argued that
the evidence did not suggest Father was violent by nature, and
that, despite his initial evasion of DCFS, he was now cooperating
with DCFS and had enrolled in a domestic violence course. I.R.’s
counsel also asked that, because of Mother’s substance use and
I.R.’s young age, Mother be ordered to present three consecutive
clean drug tests to assure I.R. was safe in her care. Counsel
noted that even without a sustained drug count in the petition,
Mother had a history of drug use that could contribute to
domestic violence issues.
4 The court dismissed the section 300, subdivision (a) count
alleging risk of nonaccidental physical harm.
10
Father’s counsel reiterated the arguments made by I.R.’s
counsel in requesting I.R. be placed with him. Counsel further
argued that Father had “acknowledged the situation” and
“moved out of the house,” that Mother and Father now had a good
coparenting relationship and did not argue, and that it would be
in I.R.’s best interests to be placed with Father.
Mother joined Father and I.R.’s requests that I.R. not
be removed from Father, noting Father “is a good father to not
only [I.R.] but also to [D.R.]” Mother objected to any drug testing,
given the lack of any nexus between drug use and the allegations
in the petition, and that “there’s no indication [Mother] currently
uses.”
DCFS’s counsel argued that I.R. should remain removed
from Father, noting the multiple prior referrals “on this family”
(although none of these involved Father and most predated his
involvement with the family by several years), that “Mother
and Father really can’t stay away from each other,” and that
neither had addressed the underlying domestic violence issues,
something Father’s recent enrollment in a program could not
alone achieve. Counsel explained DCFS was only comfortable
permitting I.R. to remain with Mother “because of the safeguards
that were put in place.” Counsel suggested unmonitored visits
for Father in a neutral setting as a compromise.
The juvenile court agreed with DCFS counsel that Father
enrolling “very late” in domestic violence training and the
“numerous referrals” indicated Father had not addressed the
underlying domestic violence issues to the extent that the court
would feel comfortable releasing the child to him. The court
found by clear and convincing evidence that it was reasonable
and necessary to remove I.R. from Father, because there existed
11
a substantial danger to I.R. if it did not do so, and there was
“no reasonable means by which the child’s physical health can
be protected without removing the child from . . . Father.”
The court ordered I.R. be removed from Father and
released to Mother under a home-of-parent-mother order,
explaining that “the reason why the child is being placed with . . .
Mother is because she is demonstrating that she is cooperating
with [DCFS] and availing herself of the services and showing
that she is developing that protective capacity.” The juvenile
court ordered services for both parents. The court noted that
it “appreciate[d] that [Father’s] a very devoted father, and that
he has been staying away from . . . Mother,” and for that reason
ordered unmonitored visits over DCFS objection. The court
ordered the visits not occur in the family home and that Mother
not be present. The court declined to order the drug testing I.R.’s
counsel had requested, instead ordering “testing upon reasonable
suspicion . . . only because the child is young. I don’t think
there’s any evidence of any kind of present use that’s concrete.”
Both I.R. and Father timely appealed.
DISCUSSION
Father and I.R. challenge the court’s removal of I.R. from
Father. They argue that the record supports neither the court’s
finding that I.R. would be in substantial danger in Father’s
custody, nor the finding that removing I.R. from Father’s custody
was the only reasonable means of protecting her. For the reasons
set forth below, we agree.
We disagree, however, with I.R.’s additional argument that
the trial court abused its discretion by refusing her request that
Mother be ordered to submit to three consecutive drug tests.
12
A. Substantial Evidence Does Not Support
the Court’s Removal Order
“Maintenance of the familial bond between children and
parents—even imperfect or separated parents—comports with
our highest values and usually best serves the interests of
parents, children, family, and community. Because we so abhor
the involuntary separation of parent and child, the state may
disturb an existing parent-child relationship only for strong
reasons and subject to careful procedures.” (In re Henry V. (2004)
119 Cal.App.4th 522, 530–531 (Henry V.).)
Accordingly, “ ‘[i]n dependency proceedings[,] the burden of
proof is substantially greater at the dispositional phase than it is
at the jurisdictional phase if the minor is to be removed from his
or her home’ ” or the physical custody of a parent. (Henry V.,
supra, 119 Cal.App.4th at pp. 528–529.) The applicable statute,
section 361, subdivision (c), “ ‘is clear and specific: Even though
children may be dependents of the juvenile court, they shall not
be removed . . . unless there is clear and convincing evidence
of a substantial danger to the child’s physical health, safety,
protection, or physical or emotional well-being and there are no
“reasonable means” by which the child can be protected without
removal.’ ” (In re Ashly F. (2014) 225 Cal.App.4th 803, 809
(Ashly F.); § 361, subd. (c)(1) [requiring “a substantial danger to
the physical health, safety, protection, or physical or emotional
well-being of the minor” and “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”].)
A finding of parental abuse cannot alone provide the clear
and convincing evidence necessary to justify removing a child.
(See In re Kieshia E. (1993) 6 Cal.4th 68, 77 [“Juvenile Court
13
Law restricts judicial power to remove a child from the care
and society of even an abusive or abuse-tolerant parent”];
Henry V., supra, 119 Cal.App.4th at p. 531.) Rather, the juvenile
court must determine whether a child will be in substantial
danger if permitted to remain in the parent’s physical custody,
considering not only the parent’s past conduct, but also current
circumstances, and the parent’s response to the conditions that
gave rise to juvenile court intervention. (See In re Alexzander C.
(2017) 18 Cal.App.5th 438, 451–452; In re N.M. (2011) 197
Cal.App.4th 159, 170.)
“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.” (Ashly F., supra, 225 Cal.App.4th at
p. 809; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005
[“when presented with a challenge to the sufficiency of the
evidence associated with a finding requiring clear and convincing
evidence, the court 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”].) “ ‘ “The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in
question in light of the whole record.” [Citation.]’ [Citation.]”
(In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.)
The sole source of potential danger to I.R. while in Father’s
care that is supported in the record derives from his history of
domestic violence with Mother, at least one instance of which
was in I.R.’s presence. We recognize the serious threat domestic
violence poses to a child’s physical and emotional well-being.
14
Nevertheless, nothing in the record suggests Father has ever
been violent or aggressive outside the context of his relationship
with Mother, nor that he is a generally violent, aggressive,
or abusive person. The nature and frequency of the domestic
violence incidents—two instances in which Father slapped
Mother, the second of which also involved him throwing a baby
shoe at her—do not support a reasonable inference that he is
a generally violent or abusive person.5 The “numerous [DCFS]
referrals in the past” that the court erroneously attributed to
Father were against Mother only and had nothing to do with
him; he has no DCFS history, no prior referrals, and no criminal
record. The record thus contains only evidence suggesting danger
to I.R. if the domestic violence between Mother and Father
continues—not danger resulting from I.R. being in Father’s care.
Whether substantial evidence supports the juvenile court’s
removal order thus depends on whether the record contains
substantial evidence that the domestic violence between Mother
and Father is likely to continue if I.R. is placed in Father’s care.
We conclude it does not. Father does not live in the family home.
The juvenile court recognized that Father has “stay[ed] away
from . . . Mother,” and the record does not reflect any contact
between Father and Mother since the court’s orders at detention
that Father not visit I.R. in the family home or in Mother’s
presence. Father has not even expressed a desire or willingness
to reconcile with Mother. Mother has neither expressed nor
demonstrated an unwillingness to keep her distance from Father.
Nor does the record suggest that the logistics of sharing custody
would require Father to have contact with Mother, given that
5 By so concluding, we do not mean to condone slapping
one’s partner.
15
both parents live with relatives who have been approved as
monitors and could assist with handing off the child. There is
thus no basis on which the court could reasonably accept DCFS’s
argument that “Mother and Father really can’t stay away from
each other,” meaning there is no basis for concluding there will
be occasion for the domestic violence between them to continue.
Given the lack of any other basis on which the court could
conclude Father poses a danger to I.R., substantial evidence
does not support a finding of such danger.6 In so concluding,
our substantial evidence review is informed by the heightened
clear and convincing evidence standard below (see Ashly F.,
supra, 225 Cal.App.4th at p. 809), and the general premise of
our dependency system that “keeping children with their parents
while proceedings are pending, whenever safely possible, serves
not only to protect parents’ rights but also children’s and society’s
best interests.” (Henry V., supra, 119 Cal.App.4th at p. 530.)
B. The Court Did Not Abuse Its Discretion in
Denying I.R.’s Request for More Extensive Drug
Testing of Mother
Section 362, subdivision (d) authorizes the juvenile court to
“direct any reasonable orders to the parents” of a dependent child
as the court deems necessary and proper to ensure appropriate
care, supervision, custody, conduct, maintenance, and support
6 In reaching this conclusion, we do not rely on I.R.’s
and Father’s arguments that the risk of danger to I.R. is
comparatively higher when in Mother’s care, as opposed to
Father’s. The propriety of the juvenile court’s decision not to
remove I.R. from Mother is not the subject of this appeal, and
even if we were to assume it is true that Mother poses a danger
to I.R., that is not a basis for concluding that Father does not.
16
of the child (§ 362, subd. (d)), and the juvenile court enjoys broad
discretion in crafting a dispositional case plan to this end. (In re
D.P. (2020) 44 Cal.App.5th 1058, 1071.) We review the juvenile
court’s disposition case plan for an abuse of discretion. (In re
Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)
The court did not act in excess of that discretion by
declining to impose more onerous drug testing requirements
on Mother. In arguing to the contrary, I.R. points to evidence
that Mother abused methamphetamines for several years and
continues to use marijuana, that she has not participated in any
drug treatment programs, and that she was using drugs while in
a domestic violence relationship with another man over 10 years
ago. Although these facts could potentially have justified an
order requiring more extensive drug testing for Mother, they
do not establish that the court’s refusal to issue such an order
was arbitrary or capricious. The record does not contain evidence
supporting any link between any current drug use by Mother
and the incidents of domestic violence with Father. Nor does
it indicate that Mother’s drug use has ever placed her children
at risk. As such, the court acted well within its discretion in
denying I.R.’s request for additional drug testing requirements.
17
DISPOSITION
The dispositional order of the juvenile court is reversed
to to the extent it removes I.R. from Father. Upon remand, the
court shall issue a new order setting forth the terms and extent
of Mother’s and Father’s shared custody and impose whatever
additional restrictions or requirements the court deems
reasonable and appropriate in order to assure the safety and
well-being of I.R. while in Father’s care.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
18
Filed 3/2/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re I.R., a Person Coming Under B307093
the Juvenile Court Law.
_________________________________ (Los Angeles County
Super. Ct. No. 20CCJP03478)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES, CERTIFICATION AND
ORDER FOR PUBLICATION
Plaintiff and Respondent,
v.
E.R.,
Defendant and Appellant;
I.R.,
Appellant.
THE COURT:
The opinion in the above-entitled matter filed on February 24,
2021 was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
______________________________________________________________
ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.