In re D.G. CA2/2

Filed 5/28/21 In re D.G. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re D.G. et al., Persons Coming B308526
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County Super.
DEPARTMENT OF CHILDREN Ct. No. 20CCJP03167A-B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen C. Marpet, Judge Pro Tempore.
Affirmed.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel, for Plaintiff and Respondent.
The juvenile court sustained a dependency petition against
S.M. (Mother) and D.G., Jr. (Father). (Welf. & Inst. Code,
§ 300.)1 Father has not appealed. Mother challenges the
jurisdictional findings against her. She admits that Father has
been violent for years and tried to run her over with his car. She
continued their relationship and her children witnessed recent
altercations. The record supports a finding that the children are
at risk of serious harm because Mother failed to protect them
from domestic violence. We affirm.
FACTS AND PROCEDURAL HISTORY
Mother and Father are the parents of D.G. (born in 2009)
and D.G.’s sister (born in 2013) (Sister). Mother said the couple’s
relationship ended in April 2019 but they continued sexual
intimacy, which she acknowledged may have misled Father.
Father said “it was unclear to him that the relationship had
ended as Mother allowed him to reside in the home and he
believes he was receiving ‘mixed messages.’ ”
In 2017, D.G. told school staff that both parents hit him
with a belt, leaving marks; Father “hit him with a belt really
hard” when he was four. Father grabbed D.G. by the shirt and
yelled at the eight-year-old to “get[ ] his life together,” nearly
choking him. The parents denied corporal punishment and the
child abuse referral was deemed unfounded.
On May 27, 2020, police received a 911 call that “a lady
needs help.”2 Officers found Mother with bruises on her neck,
ribs, and arms. She said she and Father argued. When she tried
____________________________________________________________
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2 Undesignated dates refer to the year 2020.
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to leave, Father grabbed her arm and hair, pulled her to the floor,
got on top of her, and started to strangle her. The children
witnessed the altercation. D.G. separated his parents during
Father’s attack. As Mother tried to escape, Father grabbed her
hair again and pulled her to the floor. She freed herself and ran
outside, yelling for help.
Mother told police that Father threatened to kill her;
possessed a firearm; tried to strangle her; and she fears for her
safety. She received an emergency protective order.
Respondent Department of Children and Family Services
(DCFS) investigated. Mother told the case worker (CSW) that
Father came to visit and demanded to know why they could not
be together. When she tried to leave, Father smacked a phone
from her hand, blocked her exit, and started choking her. Father
prevented her from opening the door and started hitting her. She
ran down the street screaming for help. When she returned to
the house, the children were getting in Father’s car. They said
they wanted to go with him, so she let them leave. Mother allows
Father to visit the children if she is present.
Mother said Father has attacked her three times in her
current home and sprayed her with Lysol. Law enforcement was
called. She was evicted from her prior residence after Father
pointed a gun at neighbors. Usually the children are asleep
during domestic disputes, although they were awake and present
when Father attacked her on May 27.
Sister (age 6) told CSW that Father tried to choke Mother
from behind on May 27. Mother told the children to pack. The
parents continued to fight and say bad words. It was not the first
time she saw her parents fighting. Their fights make her feel
sad. Sister is disciplined with “whoopings.”
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D.G. (age 11) said his parents argue regularly. Early in
May, they argued about D.G.’s homework. The next week, they
argued over food; Mother left the home and did not return for two
days. Their final argument in May was the worst. They began
“tussling” over Mother’s phone and hit each other. Father
grabbed Mother’s neck from behind. She tried to leave but
Father prevented her going outside. As Mother escaped, D.G.
asked her not to call police on Father. The children left with
Father. Father took their phones so no one could call police.
D.G. said that “since Father has not been in the home . . . his
Mother has not been yelling as much.”
D.G. is confused because the parental arguments “are
about nothing.” When Father complains to D.G. that Mother has
boyfriends, D.G. tells him “Mother is a grown woman and that
she is going to do what she wants” and also that “it was okay if
Mother did not want to be with [Father].” D.G. stated that
Mother’s “whoopings” do not leave bruises.
The maternal grandmother (MGM) does not believe Father
would physically harm the children. Instead, he engages in
psychological trickery by telling them bad things about Mother.
MGM said this was not the first instance of domestic violence. In
the past, Father tried to run over Mother with his car. He came
to MGM’s house and damaged her car.
On June 8, the court ordered the children’s removal from
Father. They remained in Mother’s care.
A petition was filed. As amended, it alleges that Mother
and Father have a history of engaging in violent physical
altercations in the children’s presence. On May 27, Father struck
and choked Mother and inflicted bruises on her neck, ribs, and
arms. On prior occasions, Father sprayed Mother with cleaning
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fluid and attempted to run her over. Mother failed to protect the
children by giving Father unlimited access to them. Father’s
violent conduct and Mother’s failure to protect endanger the
children’s health and safety and places them at risk of serious
harm. Father has a history of illicit drug abuse and currently
abuses marijuana, making him incapable of providing regular
childcare. He possessed a firearm within the children’s access,
endangering their health and safety.
At the June 17 detention hearing, the court found Father to
be a presumed parent. The court found good cause to detain the
children and issued a temporary restraining order. Father
cannot harm Mother or the children and must stay at least 100
yards away from them except during monitored visits with the
children. The parents were ordered not to say derogatory things
about each other to the children.
In the jurisdiction report, DCFS stated that Father has
been arrested 10 times between 1995 and 2019, including arrests
in 2001 and 2019 for battery on a cohabitant. D.G. reported that
he and his sister do homework or don headphones to avoid
hearing parental arguments. Though D.G. denied seeing
altercations, he admitted that law enforcement has come to the
home. Sister denied knowing anything about the allegations in
the petition and said her parents are “nice” to each other.
Father called Mother “dramatic” and blamed her outbursts
on her menstrual cycle. He denied trying to run her over and
said he was just moving his car. He accused a former girlfriend
of falsely having him arrested for domestic violence in 2001. He
claimed he never engaged in physical altercations. He agreed
that he uses marijuana but denied using PCP. He admitted
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having an unregistered gun at home, which he tried to hide when
police arrived. Mother knew Father had a gun at home.
Mother told DCFS that when D.G. was about three, Father
became jealous and argumentative and accused her of being
unfaithful. A year later their verbal disputes escalated into
physical aggression. Their arguments caused her to be evicted
from her apartment. While she was living with MGM, Father
learned she was in another relationship and tried to run her over
with his car.
In 2019, Mother called police when Father sprayed her
with Lysol. He uses her menstrual cycle as an excuse for his
behavior. Father normally came to her home daily to take the
children to school. He would often argue with her.
On May 27, Father came to visit, as she allowed him to do.
She was preparing dinner and Father ate her portion. Mother
decided to leave to avoid a confrontation. As she retrieved her
belongings, Father knocked the phone from her hand and
assaulted and choked her. When D.G. saw Father pin Mother to
the floor, Father feigned innocence and Mother ran outside.
D.G. told Mother he will not cooperate with DCFS. He
wants to see Father, fears Father is “in trouble” and believes that
CSW’s are keeping him away. In the past, D.G. asked Mother not
to contact police. Father came to the family home on
September 22, in violation of the restraining order. Mother told
him to leave and called police.
MGM reported that two or three years earlier, Father
argued with Mother. When Mother tried to enter MGM’s house,
Father “attempted to run her over with his car.” The children
suffer from being in the middle of the conflicts. Father
badmouths Mother and causes the children to “guilt trip” Mother
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into allowing him to visit. Father’s godmother said Mother and
Father love each other and want to reconcile. She is unaware of
physical altercations. She denied that Father has a history of
aggression, criminality, or substance abuse.
Police logs showed Mother’s reports of domestic violence.
In April 2019, Mother called police because Father grabbed her
by the neck and hair; in September 2019, Father locked himself
in the bathroom with Mother’s purse and she feared the situation
would escalate; the following April and May, Father prevented
Mother from leaving and took her purse. The 2020 police reports
state that Father is “constantly under the influence of PCP and
attempts to fight with officers.”
DCFS opined that the children are safe with Mother and
face a “moderate” risk of future abuse or neglect without DCFS
intervention. She now calls police when Father violates the
restraining order, provides the children with a clean, safe home,
changed the locks to the home, plans to get a permanent
restraining order, and will restrict Father’s access to the children.
Father’s domestic violence poses a risk of harm to the children.
The parents engaged in violence in the children’s presence. They
saw Father choke and hit Mother. They are sad and confused by
the parental fighting.
Father did not visit the children since detention (four
months earlier) because he objected to his visits being monitored.
DCFS encouraged him to visit and the children requested it. He
declined to participate in drug tests. The report noted that
Mother exposed the children to domestic violence for seven years
by allowing Father in her home.
After DCFS filed the jurisdiction report, Mother was not at
home whenever CSW came to check on the family and she
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disconnected her phone. Father did not visit the children or
return calls from DCFS.
The petition was adjudicated on October 28. DCFS and
minors’ counsel asked the court to sustain the petition in its
entirety. While admitting to “a history of violence with the
father,” Mother asked the court to strike allegations that she
failed to protect the children because she “acted appropriately
since this case has been open.” Father denied any domestic
violence, use of marijuana in the children’s presence, failure to
safely store his gun, or current risk to the children.
The court sustained the petition. It found that Mother
continues to aid Father, creating a current risk of harm. It
removed the children from Father’s custody and placed them
with Mother. Both parents were ordered to complete domestic
violence programs and individual counseling. Father must test
for drugs. His visits are monitored. The children must
participate in counseling. The court issued a permanent
restraining order protecting Mother and the children.
DISCUSSION
Mother must demonstrate that no substantial evidence
supports the court’s jurisdictional findings. (In re D.B. (2018) 26
Cal.App.5th 320, 328–329.) Without reweighing the evidence or
evaluating witness credibility, we resolve all conflicts in favor of
respondent and draw all reasonable inferences in support of the
judgment. (Ibid.; In re R.T. (2017) 3 Cal.5th 622, 633.)
Dependency jurisdiction exists regardless of the merits of
Mother’s appeal. A child “ ‘is a dependent if the actions of either
parent bring [him] within one of the statutory definitions of a
dependent.’ ” (In re X.S. (2010) 190 Cal.App.4th 1154, 1161.)
“Because the juvenile court assumes jurisdiction of the child, not
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the parents, jurisdiction may exist based on the conduct of one
parent only.” (In re J.C. (2014) 233 Cal.App.4th 1, 3.) The court
sustained the petition based on the conduct of both parents.
Father did not appeal; thus, the court has jurisdiction over the
children and we may decline to address the evidence supporting
the findings against Mother. (Id. at pp. 3–4.)
Mother argues that her claim is justiciable, even if the
court has dependency jurisdiction based on the sustained petition
against Father. She asserts that the findings against her could
prejudicially impact future dependency proceedings. (In re Drake
M. (2012) 211 Cal.App.4th 754, 762–763.) We exercise our
discretion and review the findings against Mother. (Ibid.)
The juvenile court has jurisdiction if a 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 or guardian to adequately supervise or protect
the child.” (§ 300, subd. (b)(1).) When domestic violence is
alleged, the courts may find jurisdiction if there is a pattern of
past domestic violence and a risk it will recur. (In re Daisy H.
(2011) 192 Cal.App.4th 713, 717.)
This court has concluded that jurisdiction lies if there is a
history of parental violence and the children witness a recent
altercation. (In re V.L. (2020) 54 Cal.App.5th 147 [father struck
mother with his car].) This is true if the mother and father are
separated but their relationship is unresolved. (Id., at p. 157.)
Father said his relationship with Mother continues; she
agrees they are intimate. He frequented her house despite a long
history of violence, including a 2019 attack in which he grabbed
her neck, multiple altercations in 2020, and his attempt to run
her over. She was evicted from a prior residence after Father
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pointed a gun at neighbors. His most recent attack on Mother
precipitated this dependency proceeding. The facts are not
similar to In re Jonathan B. (2015) 235 Cal.App.4th 115, 120
[father hit mother twice in five years] or In re M.W. (2015) 238
Cal.App.4th 1444, 1450 [single incident of domestic violence
occurred seven years before a petition was filed].
DCFS became involved after the children saw Father choke
and hit Mother. Mother allowed Father to drive away with the
children following his attack. Police documented bruising on
Mother’s neck, ribs, and arms. She told police he threatened to
kill her and she fears for her safety.
Contrary to Mother’s claim, she was not “protective every
step of the way.” The children were so inured to parental fights
that they donned headphones to block out the noise. D.G. said
his parents battle constantly “about nothing.” At age 11, he had
to be the adult and remind Father that Mother is a grown woman
who can do as she pleases. D.G. separated his parents when
Father tried to strangle Mother, placing the child at risk of being
hit. Both children normalize dangerous behavior, choosing to
protect Father over cooperating with DCFS.
There is no evidence Mother sought counseling for herself
and the children, until DCFS intervened. She occasionally called
police for help, then promptly allowed Father to reenter her home
and victimize her at will. Father had no insight into his violent
behavior and denied wrongdoing. While this matter was pending
Mother disconnected her phone and did not make the children
available for DCFS welfare checks.
Mother endangered the children by repeatedly exposing
them to domestic violence. They saw Mother get hit and choked.
“Children, even when they are not physically assaulted, very
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often suffer deep and lasting emotional effects” from domestic
violence. (§ 18290.) “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.” ’ ” (In re V.L., supra, 54 Cal.App.5th at
p. 156.)
Given Mother’s longstanding tolerance of Father’s abuse,
“ ‘[p]ast conduct [was] probative of current conditions’ ” because
“there is reason to believe that the conduct will continue.” (In re
S.O. (2002) 103 Cal.App.4th 453, 461; In re Giovanni F. (2010)
184 Cal.App.4th 594, 599–601 [father was violent throughout his
relationship with mother].) The record supports the sustained
findings against Mother and Father.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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