In re V.L.

Filed 9/1/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re V.L. et al., Persons B304209
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 19CCJP01609A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
M.L,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
M.L. (father) appeals from the dispositional order removing
eight-year old K.L. (son) and 15-year-old V.L. (daughter)
(collectively minors) from his custody. Father argues that the
record is insufficient to support removal of minors by clear and
convincing evidence. Further, he argues that the juvenile court’s
failure to state the reasons for its decision to remove minors
requires us to reverse the order. We conclude that the order
must be affirmed. Integral to analysis of the first issue, we heed
the holding of Conservatorship of O.B. (2020) 9 Cal. 5th 989, 995–
996 (O.B.) establishing that when a statute requires a fact to be
found by clear and convincing evidence, and when there is a
substantial evidence challenge, the reviewing court must
determine whether the record contains substantial evidence from
which a reasonable trier of fact could find the existence of that
fact to be highly probable.
FACTS
Background
Y.R. (mother) was in a relationship with father when she
gave birth to the minors. After daughter was born, mother and
father married. Eventually, she started a relationship with L.M.
Mother and father separated while she was four months
2
pregnant with L.M.’s child, L.R.1 She later gave birth to L.R. in
2018.2
Referral
The Department of Children and Family Services
(Department) received a call alleging emotional abuse of minors
and L.R. by father on January 18, 2019. The caller claimed
father struck mother with his car as she was crossing a street; a
woman named Gabriela got out of the car and pulled mother’s
hair; father did the same; and he was arrested for assault with a
deadly weapon.
Investigation
Evidence Regarding the January 18, 2019 Incident
A neighbor provided the Los Angeles Police Department
(LAPD) with surveillance video of the incident. A Department
children’s social worker (CSW) spoke with an LAPD Detective,
who stated the video showed that mother was the primary
aggressor and father was the victim. The detective also stated
that father violated traffic laws because he drove past a stop sign
at a high rate of speed.
The CSW summarized the surveillance video in the
Department’s detention report. It showed that mother opened
father’s car door and attacked him. Gabriela and minors’
paternal uncle got out of the car to stop the attack. Father tried
to reverse out of his parking spot and nearly injured paternal
uncle and Gabriela. Mother and father then engaged in a mutual
physical altercation, at which point paternal uncle walked away
1 The record suggests that father moved out of the family
home in October 2017 after a domestic violence incident.
2 L.R. is not a subject of this appeal.
3
and then returned with paternal grandmother and son. “Prior to
[father driving away], mother [ran] over to the passenger side of
the vehicle, kick[ed] the door more than once, and appear[ed] to
challenge . . . [Gabriela].” Father drove away, and son threw
something at father’s car. Father returned “a few seconds later
driving northbound on the street, fail[ed] to stop at the
intersection, and mother . . . walk[ed] towards the vehicle.” The
CSW wrote that the “video does not show mother being struck by
a vehicle and it is unclear if she was injured during the incident.
It is clear that mother instigated the situation and was the
primary aggressor during the dispute, as father was sitting in his
vehicle and he and his family members were blindsided by
mother’s attack.”
Father stated that on the date of the incident, he was in his
car with Gabriela and paternal uncle. Mother came out of
nowhere and opened the car door. She began to slap and scratch
father, and he could not get out of his car because she was
holding onto his seatbelt. Paternal uncle got out of the car and
tried to stop mother from hitting father, but mother tried to
attack him, too. Gabriela got out of the car and she and mother
started fighting over father. Father admitted that he grabbed
onto mother “pretty hard” out of self-defense, and that he was
very upset at her unprovoked attack. He disclosed that son saw
them fighting. After father, Gabriela and paternal uncle got back
in the car, father drove away but returned moments later to get
his wallet and some keys that had fallen in the street during the
altercation. Father stated he never struck mother with the car,
but the car did bump into her when she got in the way.
According to father, mother’s statement to the police that he
4
assaulted her and intentionally struck her with the vehicle was a
lie.
Paternal grandmother reported that paternal uncle came
into her apartment asking them to call the police because mother
had attacked father. Outside, paternal grandmother observed
mother attacking father. Mother bumped into father’s car when
he tried to drive away.
Mother claimed that she drove to paternal grandmother’s
house to pick up son after he spent the night there. Mother
parked far away and as she was crossing the street, she saw a
blue Honda make a sudden U-turn and strike her. Gabriela
exited the vehicle and paternal uncle held mother down while
everyone pulled mother’s hair, hit her, called her a whore, and
told her to leave father alone. Son told different versions of what
happened on January 18, 2019. In both versions, however, he
consistently said father hit mother with his car and she went
flying in the air. Daughter did not witness the incident. She said
that when mother returned home following the incident, she “had
lots of marks and scratches on her arms and knees. Her face was
very swollen and her pants were ripped.”
Mother and father separately provided photographs to
CSW to document their injuries from the incident. They showed
that mother had abrasions to her knees and elbows, and bruises
to her left forearm, and that father had two large scratches along
his right shoulder and clavicle, as well as a scratch along his lip
and chin.
History of Domestic Violence and Abuse
Mother, daughter and son claimed there had been two prior
domestic violence incidents while mother was pregnant: in
August 2017 in Las Vegas, father punched mother in the
5
stomach; and, at a baby shower two months later in October
2017, mother and father fought over a phone which resulted in
them knocking over tables and chairs. During the baby shower
incident, daughter told her parents to stop fighting but they did
not listen.
Per daughter, when father lived at the home, he would
make minors kneel on the floor with boxes of rice or beans above
them to tire them, and he would hit son with a belt or wire.
Father was always angry.
Son said that when they lived together, father made him
kneel on the floor while holding heavy items above his head, and
father would sometimes “belt” son.
Mother and Father’s Ambiguous Ongoing Relationship
After father moved out of the family home, he still
frequented the family home and mother would cook for him. In
August 2018, L.M. went to mother’s home and saw father. This
upset L.M. because he thought mother and father were in a
sexual relationship.
Father’s Representations
Father told a CSW that during the January 18, 2019
incident, mother told Gabriela that father was still in love with
mother. He denied a history of domestic violence and indicated
that mother has always been a jealous and insecure woman. He
claimed mother made up the domestic violence allegations
because she was upset he had moved on from her after he
discovered that she was pregnant with L.M.’s child. Moreover, he
claimed that his relationship with Gabriela had been affected by
mother’s insecurities because she had made harassing phone
calls. He said he had to change his phone number in response.
6
In November 2019, father represented that Gabriela lived
with him but was not his girlfriend.
Detention Hearing
At a detention hearing, the juvenile court ordered minors
detained from father and released to mother. It also ordered:
father to have visits with a monitor who was someone other than
mother; father to stay away from mother and mother’s house; and
Gabriela to have no contact with minors. Minors’ counsel
requested and obtained an order that minors receive counseling,
claiming they were showing great distress at the conduct of their
parents, particularly father.
Dependency Petition; Amended Petition; Jurisdiction
Hearing
The Department filed a petition under Welfare and
Institutions Code section 300.3 On May 1, 2019, Department
filed an amended petition containing multiple counts; all but two
counts were dismissed by the juvenile court. Those two counts,
one under section 300, subdivision (a) and one under section 300,
subdivision (b), alleged that mother and father “have a history of
engaging in physical altercations” including “a recent incident
. . . when [son] was present . . . [and] the parents engaged in
mutual combat.” They also alleged that in 2017 father “pushed
the mother to the ground in the presence of [daughter] while
mother was pregnant with [L.R].”
The juvenile court sustained the amended petition and
ordered father to be given one hour of unmonitored visitation
with minors a week.
3 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
7
Father’s Participation in Services
In June 2019, a service provider reported that father was
participating in parenting and domestic violence classes.
Department informed the juvenile court that father was having
six hours of monitored visits and one hour of unmonitored visits
per week with minors. It noted that minors said they enjoyed
spending time with father.
In August 2019, father was granted unmonitored visits for
six hours on Saturdays and six hours on Sundays. The juvenile
court’s order instructed father that Gabriela was prohibited from
being present.
Father completed his 12-week parenting skills class in
August 2019 and completed his 26-week domestic violence
program in October 2019.
In September 2019, minors and father reported that
Gabriela had been present for short periods of time—going “in
and out” to pick up her belongings—during their unmonitored
visits at father’s home.
A month later, a CSW reported that the visits were going
well and there had been no reports of Gabriela being present.
Disposition Hearing
In November 2019, the juvenile court held a disposition
hearing and father’s counsel requested it order minors placed in
father’s home. The juvenile court denied the request and placed
minors with mother. As to father, the juvenile court ordered,
inter alia, individual counseling to address case issues;
enhancement services; and unmonitored visits. The Department
was given the discretion to allow overnight visits after it saw
father’s home and did a background check on Gabriela.
8
The juvenile court found “by clear and convincing evidence
that it’s reasonable and necessary to remove [minors] from the
home because there’s a substantial danger to the physical health,
safety, protection or physical or emotional well-being of [minors],
and there are no reasonable means by which [minors’] physical
health can be protected without removing [them] from the home
and the legal and physical custody[,] care, . . . and control of the
father.” It also found that “it would be detrimental to the safety,
protection, or physical or emotional well-being of [minors] to be
returned to the home and the care, custody, and control of the
father.”
Father appealed.
DISCUSSION
This first issue raised by father is whether the order at the
disposition hearing removing minors from his custody was
supported by sufficient evidence. The second issue is whether the
removal order should be reversed because the juvenile court did
not state the facts it relied upon.
I. Relevant Law; Standard of Review.
To remove a child from parental custody, the court must
make one of five specified findings by clear and convincing
evidence. (§ 361, subd. (c).) One ground for removal is that there
is a substantial risk of injury to the child’s physical health,
safety, protection or emotional well-being if he or she were
returned home, and there are no reasonable means to protect the
child. (§ 361, subd. (c)(1).) “‘Clear and convincing’ evidence
requires a finding of high probability. The evidence must be so
clear as to leave no substantial doubt. It must be sufficiently
strong to command the unhesitating assent of every reasonable
mind. [Citations.]” (In re David C. (1984) 152 Cal. App. 3d 1189,
9
1208.) Actual harm to a child is not necessary before a child can
be removed. “Reasonable apprehension stands as an accepted
basis for the exercise of state power.” (In re Eric B. (1987) 189
Cal. App. 3d 996, 1003.)
Section 361, subdivision (e) provides: “The court shall state
the facts on which the decision to remove the minor is based.”
(See In re D.P. (2020) 44 Cal. App. 5th 1058, 1067; In re Basilio T.
(1992) 4 Cal. App. 4th 155, 171.)
A juvenile court’s removal order at a disposition hearing
will be affirmed on appeal if it is supported by substantial
evidence. (In re Amos L. (1981) 124 Cal. App. 3d 1031, 1038.)
“Evidence sufficient to support the [juvenile] court’s finding must
be reasonable in nature, credible, and of solid value; it must
actually be substantial proof of the essentials that the law
requires in a particular case. [Citation.]” (In re N.S. (2002) 97
Cal. App. 4th 167, 172.) We consider “the evidence in the light
most favorable to respondent, giving respondent the benefit of
every reasonable inference and resolving all conflicts in support
of the [challenged order]. [Citation.]” (In re Tracy Z. (1987) 195
Cal. App. 3d 107, 113.)
The court in T.J. v. Superior Court (2018) 21 Cal. App. 5th
1229, 1238–1239 (T.J.) noted that “[t]he Court[] of Appeal do[es]
not speak with one voice in describing how the substantial
evidence standard is to be applied in dependency cases when the
clear and convincing standard of proof was required at trial.
Some cases hold the clear and convincing standard ‘“‘disappears’”’
on appellate review. [Citations.] Others suggest we conduct our
substantial evidence review ‘“bearing in mind”’ the heightened
standard of proof. [Citation.]” T.J. concluded that a reviewing
court must apply the latter standard, i.e., it must give credence to
10
the clear and convincing standard when applying the substantial
evidence test. (Id. at p. 1239.)
Our Supreme Court recently resolved any dispute on this
matter when it issued its opinion in O.B. and held that “appellate
review of the sufficiency of the evidence in support of a finding
requiring clear and convincing proof must account for the level of
confidence this standard demands. . . . [W]hen 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. Consistent with well-established principles
governing review for sufficiency of the evidence, in making this
assessment the appellate court must view the record in the light
most favorable to the prevailing party below and give due
deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.” (O.B., supra, 9
Cal.5th at pp. 995–996.)
O.B., of course, is a conservatorship case, not a dependency
case. However, it signaled that its holding has broad application.
In examining the clear and convincing evidence standard, it
observed that the standard applies to various determinations,
such as termination of parental rights, involuntary commitment,
deportation, liability for punitive damages, whether a conservator
can withdraw life-sustaining care from a conservatee, whether
conditions necessary for the nonconsensual, nonemergency
administration of psychiatric medication to a prison inmate have
been satisfied, and whether a publisher acted with actual malice
in certain defamation cases. (O.B., supra, 9 Cal.5th at p. 999.)
11
Also, the court surveyed prior decisions discussing how a finding
by clear and convincing evidence should be reviewed in
dependency cases, among others. (Id. at pp. 1001–1004, citing
T.J., In re Angelia P. (1981) 28 Cal. 3d 908, and In re Jasmon O.
(1994) 8 Cal. 4th 398.) In a footnote, O.B. disapproved of a host of
dependency cases to the extent that they are inconsistent with
O.B.’s holding. (O.B., supra, at p. 1010, fn. 7.) We conclude that
O.B. is controlling in dependency cases.
II. Evidence Sufficient.
A. Analysis.
Mother and father had three violent altercations, two in
2017 and one at the beginning of 2019. The inference is that the
first two incidents occurred in the presence of both daughter and
son because they both reported the incidents to a CSW during
their interviews. As to one of the 2017 incidents, daughter was
present and tried to stop her parents’ altercation. The 2019
incident occurred, in part, in the presence of son and resulted in
mother and father suffering injuries after engaging in mutual
combat initiated by mother. This evidence shows an ongoing
cycle of domestic violence.
The inference from the CSW’s summary of the surveillance
video, the statement by the police to the CSW, and father’s
admission that mother bumped into his car is that father
dangerously poor judgment by driving through a stop sign at a
high rate of speed, that his car either made physical contact with
mother or was near her, and that he recklessly endangered
mother’s life in son’s presence. An additional inference is that
son was so angered or upset by the last incident that he threw
something at father’s car.
12
Father denied a history of domestic violence and accused
mother of fabricating the 2017 incidents, indicating that he is
unwilling to admit his role in the domestic violence. The
inference from his denial is that he is less likely to change his
behavior in the future. Though father argues in the reply that he
did not deny his role in the January 18, 2019, incident, all he
does is admit that he told a CSW that he grabbed mother “pretty
hard” out of self-defense. He does not acknowledge his role in
prior incidents of domestic violence, and he seeks to minimize his
role in the January 18, 2019, incident by focusing on an isolated
moment. He adverts to a “Domestic Violence for Batter[er]s
Progress Report” stating that he “has been participating in class
sharing how important his children and others are [to] him and
he really regrets his behavior and now []is learning how to love
himself and others.” This vague statement made by a third party
does not establish that father accepts responsibility for his
specific conduct.
Minors have been exposed to recurring domestic violence by
mother and father, and the last incident precipitated the current
dependency case. Even if a child suffers no physical harm due to
domestic violence, a “cycle of violence between . . . parents
constitute[s] a failure to protect [a child] ‘from the substantial
risk of encountering the violence and suffering serious physical
harm or illness from it.’ [Citations.]” (In re T.V. (2013) 217
Cal. App. 4th 126, 135.) A parent’s denial of domestic violence
increases the risk of it recurring. (In re Giovanni F. (2010) 184
Cal. App. 4th 594, 601; In re Gabriel K. (2012) 203 Cal. App. 4th
188, 197 [“One cannot correct a problem one fails to
acknowledge”].)
13
When the evidence is viewed in the foregoing light, i.e., the
light favorable to the Department, we conclude a reasonable trier
of fact could have found it highly probable that placement of
minors with father would pose a substantial risk of them being
harmed by exposure to future domestic violence, and that there
were no reasonable means to protect minors without removal
from father’s physical custody.
B. Father’s Arguments Unavailing.
Father suggests that the finding a risk of harm was based
only on the domestic violence that occurred in 2017, and that
those incidents did not provide clear and convincing evidence of a
substantial risk of harm and that no alternative means existed to
protect minors. This suggestion is unfounded. The juvenile court
sustained the amended petition, which contained an allegation
about the January 18, 2019, incident involving mutual combat.
Impliedly, the incident was part of the reason for removal. While
the evidence showed that mother was the aggressor, it also
showed the father engaged with mother and then drove his car in
a reckless manner.
Citing to In re Daisy H. (2011) 192 Cal. App. 4th 713, 717,
father argues that the risk to the children of recurring domestic
violence perpetrated by father was minimal because at the time
of the disposition hearing, mother and he were separated and
were living apart for several years. In re Daisy H.—a case
holding that there was insufficient evidence of failure to protect—
provides no guidance because it involved domestic violence that
occurred seven years before the section 300 petition was filed, the
children never witnessed domestic violence between the parents,
the parents were separated, and there was no evidence of ongoing
violence between them. Here, even though mother and father
14
were separated, the January 18, 2019, incident is evidence of
ongoing domestic violence. The record further indicates that
father was still frequenting mother’s home as of August 2018,
and that she had still been cooking for him after he moved out in
October 2017. Even though he claimed mother was harassing
Gabriela and him, the inference from the record is that mother
and father’s relationship is unresolved. Also, minors witnessed
domestic violence between mother and father, who were unable
to control themselves and stop fighting even when minors
interacted during the fights. The foregoing establishes that
Daisy H. is inapposite.
Next, father contends that his willingness to participate in
services diminished any potential risk to minors. While that
might be true, it is merely conflicting evidence regarding the risk
that he posed to them. Under the substantial evidence test, it
must be disregarded.
Father argues that minors did not have to be removed
because they are old enough to report domestic violence in the
future. But the issue is not whether the minors can report
domestic violence after it happened. Rather it is whether there is
a risk that they will be injured while any future domestic violence
is occurring. Father also advances the notion that minors can be
protected by the Department making unannounced visits. He
relies on In re Ashly F. (2014) 225 Cal. App. 4th 803 (Ashley F.), a
case involving child abuse by a mother and a father’s failure to
protect his children from her. We are not persuaded. In that
case, the children were removed from their home even though
“ample evidence” showed there were reasonable means to protect
them by unannounced visits by the Department, public health
nursing services, in-home counseling, and removal of mother
15
rather than the children from the family home. The court
asserted that mother had expressed remorse and was enrolled in
parenting classes. For these reasons, the court reversed the
removal order. (Id. at pp. 810–811.) None of these options would
protect minors, as is proven by the latest incident of domestic
violence. It took place on a public street and involved father
engaging in mutual combat and driving a car recklessly. Home
visits will not prevent that type of incident from occurring. The
other two incidents of domestic violence also happened outside
the home. On top of that, father denied a history of domestic
violence, and he is a source of danger, so he is not in the same
shoes as the father in Ashley F.
Taking a different tack, father suggests that the juvenile
court erred because he “promptly and diligently engaged in
services and has made substantial progress in addressing the
issues that led to dependency.” Father thus tacitly contends that
he eliminated the risk of harm that he might have previously
posed to the minors. But at the time of the disposition hearing,
he had not yet attended individual counseling sessions to address
case issues. Also, even though father may well have made
progress with his services, we cannot second guess an order
supported by substantial evidence.
In the reply, father objects to the characterization of the
January 18, 2019, incident as mutual combat because the police
identified him as the victim and the CSW said mother was the
primary aggressor. He contends that he had every right to
defend himself. We remind father that we must view the
evidence in the light most favorable to the Department. Though
mother was the primary aggressor, there was ample evidence
from which the juvenile court could conclude there was mutual
16
combat. Regardless, once the altercation ended, father drove his
car in a reckless manner. It is easy to conclude that driving his
car in a reckless manner near mother was not necessary force “to
protect from wrongful injury [to] the person or property of
[himself], or of a spouse, child, parent, or other relative.” (Civ.
Code, § 50 [defining self-defense].)
III. Failure to State Facts Harmless.
Father argues that the juvenile court’s failure to state the
facts it relied upon is reversible error because the removal order
is not supported by substantial evidence. Because we have
determined that substantial evidence does support the removal
order, we reject father’s argument. Aside from this, a bedrock
rule of appellate law is that we will not reverse an order unless
we conclude it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence of
the error. (In re J.S. (2011) 196 Cal. App. 4th 1069, 1078.) Here,
because the last incident of domestic violence involving father
was so dangerous and troubling, it is not reasonably probable
that the juvenile court would have reached a different conclusion
if it stated the facts it relied upon.
17
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
_______________________, J.
HOFFSTADT
18