In re A.S. CA2/4

Filed 1/26/23 In re A.S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
In re A.S. et al., Persons B315521
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. Nos.
21CCJP03334,
21CCJP03334 A-D )
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
JOSE S.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Linda L. Sun, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn Harrison, Acting County Counsel, Kim Nemoy
Assistant County Counsel, Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
Jose S. (father) appeals a juvenile court order exercising
jurisdiction over four of his children under Welfare and
Institutions Code section 300, subdivision (b)(1).1 Father and the
children’s mother (mother) lived in separate parts of the same
house. The children and mother lived in part of the home that
mother kept locked, with the windows covered and jammed
closed, because mother was attempting to protect herself from
father’s coercion and ongoing threats of sexual assault. Father
pulled off mother’s pants in front of the children, slapped her
buttocks, threatened to cut off mother’s debit card, and
threatened to kill mother’s family members. Father contends
this evidence was insufficient to show a risk of harm to the
children under section 300, subdivision (b)(1). We disagree and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
On June 28, 2021, mother initiated a family law case
seeking custody of and child support for the four youngest
children—A., age 9; K., age 7; and twins M. and O., age 3. She
also took the children from the family home and cut off contact
with father. The detention report stated that mother “fears for
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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her life and the safety of the children. Father has made death
threats to kill maternal family if mother is to leave the home or
leave the father. Mother reported on-going emotional, physical,
verbal abuse; and sexual assault.”
Father apparently called the Los Angeles County
Department of Children and Family Services (DCFS) on June 30,
2021, reporting that mother was neglecting and emotionally
abusing the children.2 In an interview at the family home on
July 7, father told a children’s social worker (CSW) that mother
had seemed depressed since she gave birth to the twins. The
family lived together on a single property, with mother and the
younger children in the front part of the home and father and
their 18-year-old child, C., in the back of the home. Father said
that he and mother had not been in a relationship for a year, but
they “continue to have sex.”
Father said that when mother was home with the children
she “had everyone locked up inside” the house, with the windows
boarded up so father could not see inside their living quarters.
Father said mother “always wants to be in the dark” and she
accused father of doing witchcraft on her. Mother also changed
the locks so father could not get into that part of the home.
Father said that mother locked 18-year-old C. in his room for
eight months, and recently she had not taken the younger
children out of the home for three months. He said mother was a
good mother who met the children’s needs, but she was not
affectionate toward them.
Mother had left the home with the children. Father stated
that based on mother’s bank card transactions, she was probably
2 The report does not identify the initial reporter, but the
allegations match father’s contentions about mother.
3
with her maternal family in Riverside County; she would not
answer his phone calls. Father also said that the Los Angeles
Police Department told him that mother was trying to file a
harassment report against him. The CSW confirmed with
Moreno Valley Police that mother attempted to file a restraining
order against father for ongoing verbal and sexual abuse.
C. told the CSW that he feels safe with father and does not
trust mother. C. stated that mother’s personality had changed,
and she kicked him out of the home, prompting C. to go live in
the back area with father. C. also stated that mother locked him
up in the home, but the CSW observed that the layout of the
home made the allegation “not appear to be feasible.” C. said he
heard mother yell at the younger children, but he had not
observed any violence toward them or any domestic violence
between father and mother. C. said the police had never been
called to the home.
Mother told the CSW that she had left the home in fear for
her life. She stated that father is “a manipulator” who tells
people that mother is mentally ill. The detention report states,
“Mother is begging for help and stated everyone believes father
and she just wants to get away from him, ‘I don’t want to go back
to the home, he is a manipulator, a sick person who only wants to
use me as a sex slave.’ Mother reported she had to lock herself in
the home to prevent father to get in [sic] as he only wants sex and
he is constantly abusing her emotionally.” Mother stated that
she was unable to go out to the front porch of the house because
“father would start pulling her pants down in the presence of the
children.” She had to start using screwdrivers and knives to jam
the windows closed to prevent father from breaking in, because
he would “open the window and get in the bed with mother
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forcefully.” She told the CSW, “I was forced to have sexual
relations, did he tell you that? Of course he did not tell you that.”
Mother admitted that she also boarded up the windows to block
father from seeing into the home; she said he has cameras in the
bathrooms, and watches mother and the children while they
shower.
The CSW noted that mother was “hyper concerned for her
own safety and the safety of her family.” Mother was considering
leaving the country, but father had threatened to kill mother’s
family if she left. Mother said that father put a GPS device on
her car “to have control over me and the children.” Mother
denied locking C. in his room.
The CSW noted in the detention report that father had
provided text messages and voicemails from mother to father. In
those messages, “Mother is complaining of father cutting off the
water from the house, mother [is] demanding father to re-
establish water in the home.” Mother stated in a voicemail that
father cut off water to the house in an attempt to force her to call
him. Mother also asked father to turn on the hot water so she
could bathe the children.
In an interview with the CSW, A. said she feels safe with
mother but not with father. A. said that father “acts nice,
innocent and sweet [but] I don’t think he is a good people [sic] on
the inside. Mom is the only one who cares for me . . . .” A. denied
any physical abuse or domestic violence, but “reported a lot of
yelling between mother and father and reported father uses the F
word and other bad words.” A. stated that she had been in
therapy after saying she wanted to die the previous year, which
A. said was only a joke. The CSW found A. credible.
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In an interview, K. reported that he “feels safe with mother
and when asked if he feels safe with father, K[.] hesitated for a
minute and said ‘I’m afraid of my dad. He lies and he always
gives me bad decisions [sic]; I believe my mom, dad screams and
mom is telling the truth, my dad is not telling the truth.’” The
CSW found K. credible. The CSW noted that all four children
appeared healthy, clean, and well groomed, with no signs of
abuse or neglect. With the CSW’s help, mother and the children
were moved to a confidential location.
In a later interview with the CSW, father denied the sexual
abuse allegations, stating that all contact with mother was
consensual. Father also denied having cameras in the home, and
denied making any death threats.
The family had one previous DCFS referral in 2020, around
the time mother and father separated. The allegations were
deemed inconclusive or unfounded; the investigating CSW found
that the issues arose from the parents’ separation and did not
reflect abuse or neglect toward the children.
The CSW concluded that based on her interviews with the
family members, “the conduct of father . . . includes, but is not
limited to, terrorizing the family.” DCFS recommended that the
children be detained from father and released to mother, with
monitored visitation for father.
DCFS filed a juvenile dependency petition under section
300, subdivisions (a) and (b)(1), on July 19, 2021. In counts a-1
and b-1, DCFS alleged that mother and father have a history of
engaging in violent altercations in the presence of the children,
including father threatening to kill mother’s family and pulling
mother’s pants down in front of the children. DCFS noted that
mother locked herself inside the home and barricaded the
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windows to prevent father’s access, and mother “left the home in
fear for her life.” DCFS alleged that father’s violent conduct
endangered the children’s physical health and safety, and placed
the children at risk of serious physical harm.3
At the detention hearing on July 22, 2021, the juvenile
court detained the children from father, released them to mother,
and ordered monitored visitation for father. On July 29, 2021,
the court also entered a temporary restraining order protecting
mother from father.
B. Jurisdiction and disposition
According to the jurisdiction/disposition report, dated
August 24, 2021, the children were still living with mother in a
confidential location. In an interview with a CSW, A. said that
while they were living next to father, “My dad busted the door
one time and I was scared, but I am also a good actress. I trust
my mom, but not my dad.” She also told the CSW, “All the time
they would argue, the whole night and we wouldn’t sleep.” A.
said that father threatened mother by saying that if she refused
to be with him, he would take away the credit card. A. also
indicated that she had something else to say to the CSW, but she
did not want to say it out loud. A. agreed to write it down, and
wrote, “He would pull my mom’s pants and slap her in the butt.”
A. said she witnessed this one time. A. called father “an evil
man.”
The CSW interviewed K., who was extremely active and
“ha[d] a hard time listening and staying still.” The CSW opined
that “being unable to spend time outdoors could be affecting the
3 The petition also included a count b-2 relating to counseling
for A. This count was not sustained, and it is not at issue in this
appeal.
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child and his ability to listen and sit still.” K. told the social
worker, “my parents would argue,” but he would not say more
regarding the allegations, stating “I don’t know, I am just a kid.”
K. said he had not had recent contact with father “[b]ecause I
don’t want to and I can’t tell you why.”
In her interview, mother “seem[ed] overwhelmed and
worried about her living situation.” Mother stated that the
domestic violence “wasn’t in the presence of my kids. He would
try to do something to me when we were alone. I would scream
for my adult son for assistance.” Mother said father threatened
that if she did not have sex with him, he would cut up her debit
card so she could not buy food for the children. Mother
barricaded her part of the house, but “he would open the door
forcefully and he would say it was because the kids were locked
in with me.” Mother continued, “I would tell him I want nothing
to do with him, he doesn’t get it, and still doesn’t get it to this
date.” Mother also said father was watching her all the time,
with cameras in the house and a chip that tracked the location of
her car. She further reported that father “said that if I leave to
Mexico [he is] going to kill every last family member until he
finds my kids.”
In his interview, father said the domestic violence
allegations were not true. Father said he never sexually
assaulted mother, or entered the home through a window.
Father said mother was “living in a phobia, living in the dark,
and everything she is accusing me of is a lie.” Father said that if
there had been domestic violence, mother would have called the
police. Father repeated the allegations that mother kept the
younger children inside the house for months and kept C. locked
in his room; father said he reported this to police, but “they did
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not do anything about it.” Father said that mother and her
family did not like him because they were racist. Father offered
to leave the family home so mother and the children could live
there.
C. stated that when mother and father lived together, “It
was terrible, they would always argue.” C. denied seeing any
physical altercations between mother and father. C. blamed
mother for the family problems, stating that she had kicked C.
and father out, and “she is ill. She turned rogue on us and threw
so much shade at us. . . . Not abusive though.” C. criticized other
aspects of mother’s parenting that were not relevant to the
allegations.
The principal from A. and K.’s school stated that while
school was being conducted online due to the pandemic, A. was
“smart and able to navigate through her work,” but K. would fall
asleep during class. The principal thought the children needed
more support at home, and said, “you can sense there was a lot of
chaos at home.” The principal thought father seemed more
organized, and that mother’s lack of organization was affecting
the children.
DCFS recommended that the petition be sustained. It also
recommended that the children remain with mother, father have
monitored visitation, mother receive family maintenance
services, and father receive enhancement services.
At the jurisdiction hearing on August 24, 2021, the court
received the two DCFS reports as evidence; no additional
evidence was presented. The children’s counsel asked that count
a-1 be dismissed and count b-1 be sustained. Mother’s counsel
asked that the allegations against mother be dismissed. Father’s
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counsel asked that the allegations be dismissed for lack of
evidence. DCFS asked that the allegations be sustained as pled.
The juvenile court sustained count b-1, and dismissed the
remaining counts. The court stated that the evidence supported
count b-1 because father threatened to kill mother’s family and
pulled mother’s pants down in front of the children. The court
noted that mother had been attempting to protect herself from
sexual assault when she barricaded herself and the children in
the house, and then moved with the children to a shelter. The
court also referenced A.’s statement that father broke open a
door, and the evidence that father exerted financial control over
mother.
Turning to disposition, after hearing argument from
counsel, the court removed the children from father’s care, citing
father’s threats to kill mother’s family, his violence in breaking
down a door of the house, and the children’s statements that they
did not feel safe with father. The court released the children to
mother; ordered monitored visitation for A. and K. with father
with discretion to liberalize after conjoint counseling with the
children; ordered unmonitored visitation with M. and O.; and
ordered various services for the family. The court also granted
mother’s request for a permanent restraining order based on its
earlier findings, including father’s threats to kill mother’s
family.4
Father timely appealed. On September 2, 2022, while this
appeal was pending, the juvenile court issued an order allowing
the children to return to father’s care. The court also held that
4 The restraining order protected mother from father; the
children were not included in the restraining order.
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continued jurisdiction over the family was necessary, and ordered
continuing family maintenance services.5
DISCUSSION
Father contends the juvenile court’s jurisdiction order was
not supported by substantial evidence. “‘In reviewing a challenge
to the sufficiency of the evidence supporting the jurisdictional
findings and disposition, we determine if substantial evidence,
contradicted or uncontradicted, supports them. “In making this
determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency
court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.”’” (In re I.J. (2013)
56 Cal.4th 766, 773.)
Under section 300, subdivision (b)(1), jurisdiction is
appropriate when 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 the child’s parent or guardian
to adequately supervise or protect the child, . . . or by the willful
or negligent failure of the parent or guardian to provide the child
with adequate food, clothing, shelter, or medical treatment. . . .”
Here, substantial evidence showed that the children’s
safety and well-being were impacted by father’s threats and
coercion. Father himself initiated DCFS contact by complaining
that mother had the children locked in the house with boarded up
5 We granted DCFS’s request to take judicial notice of the
court’s September 2 order. Father challenged the juvenile court’s
disposition order and restraining order in his opening brief on
appeal, but states in his reply brief that these issues have been
resolved. We therefore only address his jurisdiction argument.
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windows—which mother was doing to protect herself from
father’s threats and sexual assaults. Father also showed texts to
the social worker in which mother complained that father had cut
off the water to the house in an attempt to force mother to call
him, and mother said she was unable to bathe the children.
Father also threatened to cut off mother’s debit card, her source
of income for feeding the children. The children, including adult
C., told the social worker that mother and father argued a lot,
mother reported that father continually attempted to sexually
assault her, the children witnessed father pulling mother’s pants
down in front of them and slapping mother’s behind, and A. said
she witnessed father break open a door. Moreover, the children
and mother had to leave their home and move into a shelter to
escape father’s threats, while father tracked mother’s movements
through her debit card and threatened to kill mother’s family
members until he found his children.
Father’s argument relies on minimizing the effects of his
threats and actions, stating in his brief that “not every bad
relationship warrants government intervention.” However, the
evidence shows that father’s actions impacted the children in
multiple ways, including causing them to live in a home with
windows and exits blocked closed, while under threat of having
their sources of food and water cut off. These threats to the
children’s safety, even without actual harm, are sufficient to
support a finding under section 300, subdivision (b)(1): “‘The
court need not wait until a child is seriously abused or injured to
assume jurisdiction and take the steps necessary to protect the
child.’” (In re I.J., supra, 56 Cal.4th 766, 773.)
Father also asserts the children never directly witnessed a
domestic violence incident, but the evidence does not support this
12
claim. Mother said she could not go near father because he would
pull her pants off, A. told the social worker that father would pull
mother’s pants down and slap her butt, and A. said she was
scared when she witnessed father break open the door to get into
the family’s living area.
Father also argues that previous evidence of domestic
violence does not demonstrate a risk of harm to the children, and
does not support the finding here because mother and father
were no longer living together at the time of the jurisdiction
hearing. He compares this case to In re Daisy H. (2011) 192
Cal.App.4th 713 (Daisy H.) and In re M.W. (2015) 238
Cal.App.4th 1444 (M.W.), which both held that a single domestic
violence incident that occurred years before the jurisdiction
hearing was insufficient to sustain an allegation under section
300, subdivision (b)(1). In Daisy H., the court stated, “Physical
violence between a child’s parents may support the exercise of
jurisdiction under subdivision (b) but only if there is evidence
that the violence is ongoing or likely to continue and that it
directly harmed the child physically or placed the child at risk of
physical harm.” (Daisy H., supra, 192 Cal.App.4th at p. 717.) In
that case, “[t]he physical violence between the parents happened
at least two, and probably seven, years before the DCFS filed the
petition,” and “[t]here was no evidence that any of the children
were physically exposed to the past violence between their
parents and no evidence of any ongoing violence between the
parents who are now separated.” (Ibid.) In M.W., the father and
mother had not lived together for months, father was
incarcerated, and the only evidence of domestic violence was a
single altercation seven years earlier. (M.W., supra, 238
Cal.App.4th at p. 1454.)
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This case is not similar to Daisy H. or M.W. because
father’s threats were current and ongoing. Father and mother
were living in the same house until days before the case was
opened, and when mother tried to escape, father told the social
worker he knew mother’s location by tracking her debit card
transactions. Mother reported that father continued to threaten
to track her down and kill her family members. Moreover, on the
day of the jurisdiction hearing the juvenile court imposed a
restraining order protecting mother from father, indicating that
the court determined continued protection was still needed. In
addition, mother was living with the children at a shelter at the
time of the hearing and there was no suggestion that her finances
had been separated from father’s, so the threat of financial
coercion was ongoing. This was not like Daisy H. and M.W.,
which lacked evidence of ongoing threats.
Father also asserts that because count a-1 was dismissed,
count b-1 should have been dismissed as well: “Just like the
court was unable to sustain the Department’s allegation
pursuant to (a), its allegation under subdivision (b), pleaded with
identical language, was also not supported.” This argument is
baseless. Count a-1 was charged under section 300, subdivision
(a), which allows for jurisdiction where a child is at risk of harm
“inflicted nonaccidentally upon the child by the child’s parent or
guardian.” (§ 300, subd. (a).) Whether the evidence meets the
legal requirements to support a finding under subdivision (a) has
no bearing on whether that same evidence may support a finding
under section 300, subdivision (b)(1).
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DISPOSITION
The jurisdiction order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P.J.
We concur:
CURREY, J.
SCADUTO, J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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