In re Serena P. CA2/2

Filed 1/25/23 In re Serena P. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re SERENA P. et al., Persons B315006
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct.
No. 21CCJP02287AB)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOSHUA P. et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin R. Kesler, Juvenile Court Referee.
Affirmed.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant Joshua P.
Christine E. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant Jazmin R.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Adam Baumgarten, Deputy
County Counsel, for Plaintiff and Respondent.
******
Appellants Joshua P. (father) and Jazmin R. (mother)
appeal from the juvenile court’s dispositional order removing
their children Serena (born 2017) and Shirley (born 2021) from
father’s custody because of domestic violence between the
parents. We affirm the removal order.
BACKGROUND
Detention and section 300 petition
In April 2021, the Los Angeles County Department of
Children and Family Services (the Department) received two
referrals concerning domestic violence between the parents.
According to the reporting party, on April 28, 2021, the parents
were arguing while father was driving mother and the children
on the freeway. Father was driving at an excessive rate of speed
in order to scare mother. He eventually pulled over and stopped
the car at mother’s request. When father did so, mother took his
phone. A physical struggle ensued, and father grabbed and
twisted mother’s left arm, causing her pain. Father then
telephoned the paternal grandmother and asked her to pick him
up.
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Mother drove herself and the children to the family’s home,
where the paternal grandmother also resided. A physical
altercation between mother and the paternal grandmother
ensued, and mother punched the paternal grandmother in the
face. Father stepped between the two women and pushed mother
to the floor. While mother was on the floor, father got on top of
her, placed one hand around mother’s neck, and began to choke
her. Father used his other hand to cover mother’s nose and
mouth to prevent her from breathing. Four-year-old Serena and
infant Shirley were present during the incident. Serena
attempted to intervene and told father to stop hitting mother.
Father responded by pushing Serena, causing her to fall to the
floor. The paternal grandmother yelled at father to stop choking
mother, and father eventually complied. Mother called 911, and
she and Serena were transported by ambulance to the hospital.
Serena was uninjured, but mother sustained facial contusions
and arm strain. According to the reporting party, mother
disclosed a separate incident of domestic violence with father that
had occurred shortly before Shirley was born. Father pushed
mother and slapped her on the mouth. Father was arrested for
the incident of April 28, 2021, and mother received an emergency
protective order against him.
On May 4, 2021, the Department’s social worker made an
unannounced visit to the maternal grandparents’ home, where
mother and the children were staying. Mother told the social
worker that she, the paternal grandmother, and father had been
arguing on the day of the incident. The paternal grandmother
had attempted to hit mother, and mother had raised her hand in
self-defense. Father then tackled mother to the ground and
began choking her with both hands. Four-year-old Serena was
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present, crying and yelling at father to stop while hitting father
on his back. Father turned and pushed Serena away, causing her
to fall to the floor. Mother and the children had since moved out
of the family home and were staying with the maternal
grandparents. Mother reported that Serena was having
nightmares since the incident, crying, “stop, stop, stop” in the
middle of the night. Serena had also recently been wetting her
bed.
Serena told the social worker that “Papi . . . pushed my
mom and choked her.” While describing the incident, Serena put
her hands around her throat. She said, “I was hitting Papi on his
back telling him to stop hurting my mom” when he “pushed my
stomach and pushed me down.” The child further stated, “when
my daddy pushed me[,] I fell and hurt my finger.”
The social worker spoke with father by telephone on May 5,
2021. Father denied the allegations and said he had been falsely
accused, saying mother fabricated the allegations and no
domestic violence had occurred. Father believed mother was
coaching Serena to make false accusations against him. He
denied choking mother or being physically violent with her. He
acknowledged that mother fell but did not recall what happened.
Father admitted he accidentally pushed Serena, which caused
her to fall, but denied causing her any injury. Father then said
he tripped over Serena while she was standing behind him, and
he pushed Serena back, which caused the child to fall.
Father missed the children and said being separated from
them was very difficult. Father admitted he was currently on
probation for a DUI conviction and for soliciting prostitution. He
believed his probation would be terminated in June 2021.
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During a May 12, 2021 followup visit, the social worker
informed mother that the Department was seeking a court order
to remove the children from father’s custody and to have the
children remain in mother’s custody. Mother became upset and
said she had lied about the domestic violence incident. When the
social worker told mother that Serena had corroborated mother’s
previous account, mother said Serena simply repeated whatever
she had overheard mother say.
The Department filed a petition on behalf of the children
under Welfare and Institutions Code section 300, subdivisions (a)
and (b),1 alleging an incident of domestic violence between the
parents on April 28, 2021, and a physical altercation between
mother and the paternal grandmother had occurred in the
children’s presence. Father pushed mother to the ground, got on
top her, covered mother’s nose and mouth, and choked her,
preventing her from breathing. During the altercation, father
pushed Serena, causing her to fall while she witnessed the
domestic violence incident. The petition alleged that the parents’
and the paternal grandmother’s conduct endangered the children
and placed them at risk of serious physical and emotional harm.
In a last minute information for the court filed on May 19,
2021, the Department reported that the social worker re-
interviewed Serena separately from mother on May 17, 2021.
Serena reiterated that on the day of the referral, father had
pushed mother to the floor, got on top of her and began choking
her. Serena said she yelled at father to stop. Father in turn told
Serena to tell mother to stop. Serena said father pushed her,
1 All further statutory references are to the Welfare and
Institutions Code.
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causing her to hurt her finger. She denied that anyone had
instructed her to say these things.
The social worker also re-interviewed mother that same
day. Mother continued to deny that any domestic violence had
occurred and insisted she had fabricated the incident.
The social worker also spoke with the maternal
grandfather who said he knew that an incident had occurred
between the parents, fueled by the paternal grandmother. He did
not know much about the incident or whether mother was
covering up for father or trying to protect him. He said he did not
believe Serena was lying about the domestic violence incident.
Both parents were present at the May 19, 2021 detention
hearing and denied the allegations of the petition. The juvenile
court found a prima facie case that the children were persons
described by section 300 and ordered them detained from father
and released to mother. The court granted father a minimum of
three visits per week with the children for three hours per visit
and ordered mother not to serve as the monitor.
Jurisdiction and disposition
In its September 8, 2021 jurisdiction/disposition report, the
Department reported that its dependency investigator had again
interviewed Serena on July 15, 2021. Serena told the
investigator that on the day of incident, mother pushed father
while they were inside the car because father had grabbed
mother’s arm and twisted it. Father got out of the car, and
mother drove away. When mother and the children returned
home, mother and the paternal grandmother fought, and father
pushed mother to the floor, placed one hand on mother’s throat,
and used his other hand to cover mother’s mouth. Father then
used a closed fist to hit mother on the stomach and on the arm.
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Serena was crying and asked father to stop. Father pushed
Serena to the floor, causing her to hurt her finger. When asked if
anyone had asked her to lie about the incident, Serena
responded, “My mom told me to tell people that I don’t know or
remember what happened between them. I told my mom that I
do remember. I saw that my dad pushed and hit my mom with
his hands.”
Mother told the dependency investigator that on the day of
incident, she and father had been arguing while father was
driving the car. Mother told him to get out of the car, and mother
then drove away. Mother said she lied about father twisting her
arm while they were in the car. Father was in the home when
mother and the children returned. Mother and the paternal
grandmother argued, and a physical altercation ensued between
the two women. Father moved between them and grabbed
mother by the shoulders. Serena entered the room, bumped into
father and fell to floor. Mother said she called 911 and lied to the
operator about father choking her because mother was angry
with him. Mother said she fabricated the entire incident. When
asked about Serena’s version of the incident, mother stated that
the child lies and is aggressive with other children.
Mother and father both reported that they are legally
married to one another. Mother said she intended to co-parent
the children with father but was unsure whether she would get
back together with him. Father said he did not know whether he
would continue his relationship with mother.
The maternal grandmother told the investigator that
mother had disclosed only that father had grabbed her by the
arm. Mother did not say that father had hit or choked her. The
maternal grandmother further stated that the parents had
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previously lived in her home, and she had never observed any
verbal or physical altercations between them. The maternal
grandmother expressed her willingness to monitor father’s visits
with the children. She said Serena cries all the time for father.
Adjudication hearing
At the September 8, 2021 adjudication hearing, the
children’s counsel asked the juvenile court to give the most
weight to Serena’s statements, which remained consistent
throughout the case. Both the children’s counsel and counsel for
the Department asked the court to sustain the petition in full.
Counsel for both mother and father argued that the
petition should be dismissed on the grounds that the incident was
an isolated one, the parents were separated and were
participating in services, and there was no current risk of harm
to the children.
The juvenile court sustained the petition as alleged, noting
that Serena was “very credible” and that mother’s denials were
not, given that she and Serena were both transported to the
hospital.
As to disposition, the children’s counsel joined in the
Department’s recommendation that the children be removed from
father’s custody and released to mother. Mother submitted on
the recommendation that the children be released to her.
Father’s counsel pointed out that the parents had remained
separated since the detention hearing, that father was enrolled in
a 52-week domestic violence program and therapy and had nearly
completed a parenting class. Counsel argued that safety
measures could be put into place to prevent removal and asked
that the children be returned to father’s custody on the condition
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that father and mother continue to live apart from each other
until further court order.
The juvenile court ordered the children removed from
father’s custody and to remain in mother’s home under the
Department’s supervision. The court noted that “[f]ather has yet
to understand the consequences associated with his domestic
violence towards, not only the mother but the effects on the
children. . . . Father’s willingness to push his four-year-old
daughter away while he’s assaulting the mother puts these
children at risk. He has yet to indicate that he even has any idea
[of] that or accept any responsibility for the violence that
occurred that day.”
The court granted family maintenance services for mother
and enhancement services for father. The court ordered father’s
visits to remain monitored pursuant to a written visitation
schedule but gave the Department discretion to liberalize the
visits. The juvenile court advised the parents that they could
remain together as a couple but could not live together until they
were further along in their programs and could admit to the
events that occurred and take responsibility for their actions.
This appeal followed.
DISCUSSION
I. Applicable law and standard of review
Section 361 authorizes the removal of a child from a
parent’s physical custody if the juvenile court finds that a
substantial danger exists to the child’s physical or emotional
well-being: “A dependent child shall not be taken from the
physical custody of his or her parents . . . unless the juvenile
court finds clear and convincing evidence . . . [¶] [t]here is or
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would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the
minor were returned home, and there are no reasonable means
by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . custody.”
(§ 361, subd. (c)(1).)
A removal order must be based on proof of parental
inability to properly care for the child and of a potential
detriment to the child; however, the parent need not be
dangerous, and the minor need not actually be harmed before
removal is appropriate. (In re N.M. (2011) 197 Cal.App.4th 159,
169-170.) Instead, the statute focuses on averting harm to the
child. (Id. at p. 170.) The juvenile court may consider a parent’s
past conduct as well as present circumstances. (Ibid.; In re
John M. (2012) 212 Cal.App.4th 1117, 1126.)
When reviewing a juvenile court’s removal order, an
appellate court must account for the clear and convincing
evidence standard required for removal under section 361.
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.).) The
relevant question when reviewing a finding of fact under this
standard “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.” (Ibid.) When
undertaking this inquiry, the appellate court must “view the
record in the light most favorable to the prevailing party below
and give appropriate 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.”
(Id. at pp. 1011-1012.)
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II. Substantial evidence supports the removal order
Substantial evidence supports the juvenile court’s finding
that father’s domestic violence against mother presented a
substantial danger to the children’s physical and emotional well-
being. The severity of father’s April 28, 2021 attacks on mother
in the children’s presence; the children’s tender ages; Serena’s
attempted intervention on mother’s behalf; and father’s response
by pushing Serena, causing her to fall backward and hurt her
finger, amply support a finding of high probability of harm to the
children. (O.B., supra, 9 Cal.5th at p. 1005.) Earlier that same
day, father had grabbed and twisted mother’s arm in the
children’s presence while the family was in a car. Mother’s
disclosure at the outset of the case that father had pushed and
slapped her while she was pregnant with Shirley, indicates a
history of domestic violence between the parents and contradicts
the parents’ assertion that the April 28, 2021 incident was an
isolated one.
In re I.R. (2021) 61 Cal.App.5th 510, on which father relies,
is distinguishable. The appellate court in that case reversed a
removal order based solely on domestic violence between the
parents after concluding that the nature and frequency of the
domestic violence incidents in the presence of their 11-year-old
and nearly two-year-old children—two instances in which father
slapped mother, the second of which also involved him throwing a
baby shoe at her—did not support a reasonable inference that
father was a generally violent or abusive person. (Id. at p. 521.)
Here, in contrast, Serena described father choking and
attempting to asphyxiate mother and using a closed fist to hit
mother on the stomach. When four-year-old Serena attempted to
intervene, father shoved her, causing the child to fall and hurt
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her finger. Father did not stop choking mother until the paternal
grandmother intervened. Mother and Serena were both
transported by ambulance to the hospital.
The parents’ denial and minimization of the seriousness of
the domestic violence is an added concern because “[o]ne cannot
correct a problem one fails to acknowledge.” (In re Gabriel K.
(2012) 203 Cal.App.4th 188, 197.) The parents’ denial of the
domestic violence makes them less open to the “treatment
necessary to effect behavioral changes to [e]nsure the [children]
will not be [at] risk if placed in [father’s] custody.” (In re
Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044; see In re A.F.
(2016) 3 Cal.App.5th 283, 293 [“‘[D]enial is a factor often relevant
to determining whether persons are likely to modify their
behavior in the future without court supervision.’”].)
Father argues that his participation in domestic violence
and parenting programs shows that he is willing to take
responsibility for his actions. Father’s participation in the court’s
case plan is a positive sign. But real change takes time. The
juvenile court did not err in concluding that father’s efforts had
not yet ripened into real change.
Father next contends that less drastic alternatives exist to
removing the children from his custody and that neither the
juvenile court nor the Department considered these alternatives.
He argues that, even though he and mother are already currently
separated, the juvenile court ordered the parents to live apart
and ordered unannounced home inspections by a monitor or the
Department. Father claims that conditioning his custody of the
children on these conditions was an available alternative to
removal. Father’s counsel raised these alternatives at the
disposition hearing. The juvenile court considered and rejected
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them, noting that the parents needed to make further progress in
their case plans before the children could be returned to father’s
custody. Father and mother fail to establish any abuse of
discretion in the juvenile court’s dispositional order.
DISPOSITION
The order removing the children from father’s custody is
affirmed.
________________________
CHAVEZ, J.
We concur:
________________________ ________________________
LUI, P. J. BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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