In re Johnnie G. CA2/2

Filed 3/8/23 In re Johnnie G. CA2/2
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JOHNNIE G. et al., Persons B314873
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct.
No. 21CCJP02306A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
EVELI N.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Philip L. Soto, Judge. Affirmed.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
******
Eveli N. (mother) appeals from the juvenile court’s judgment
asserting jurisdiction over her two children, Adam G. (age 4) and
Johnnie G. (age 16), and removing them from her custody. She
contends that substantial evidence did not support the court’s
findings. We disagree and affirm the judgment.
BACKGROUND
Detention Report
In May 2021, the Los Angeles County Department of Children
and Family Services (DCFS or Department) filed a juvenile
dependency petition pursuant to Welfare and Institutions Code
section 300, subdivisions (a) and (b)(1)1 to bring the minor children
within the jurisdiction of the juvenile court.2 The Department filed
an amended petition on August 2, 2021. We summarize from the
allegations of the amended petition, which deleted the allegation
1 All further unattributed code sections are to the Welfare and
Institutions Code unless otherwise stated.
2 We grant mother’s requests for judicial notice of minute
orders issued by the juvenile court after this appeal was filed. On
August 1, 2022, the court returned custody of the children to father
and ordered them placed in father’s home. On November 10, 2022,
jurisdiction over Johnnie was terminated, after he turned 18 years
old in September 2022. As mother does not claim otherwise, we
find the appeal moot as it pertains to Johnnie, and we dismiss it as
it pertains to him. (See In re D.P. (2023) 14 Cal.5th 266, 277-278.)
2
from the original that mother struck father during an argument.
Otherwise they were not substantially different.
Both counts were based upon the same facts. The amended
petition alleged that mother and Johnnie G. (father) had engaged in
physical and verbal altercations. On March 24, 2021, father struck
mother and pulled her hair in Adam’s presence. On April 30, 2021,
after mother and father called each other derogatory names, father
parked in mother’s driveway, mother blocked his car with a trash
can, and father struck the can and mother’s car with his car when
he attempted to leave. In addition, father had placed a tracking
device on mother’s car, which he would follow. In the past father
had a criminal conviction of inflicting injury upon a spouse or
cohabitant. The petition further alleged that father’s conduct
endangered the children’s physical health and safety and placed the
children at risk of serious physical harm, damage, and danger.
A detention hearing was held on May 20, 2021. The
Department’s report, filed prior to the hearing, contained a
description of the investigation into the family up to that date.
Interviews with mother
A DCFS children’s social worker (CSW) summarized her
March 31, 2021 home interview with mother in Adam’s presence, as
Adam did not want to leave his mother’s side. Mother said she and
father had separated about a month earlier after 20 years together
due to verbal, mental and psychological abuse, and that she had
moved in with her mother (maternal grandmother). Mother
claimed that father was jealous, had isolated her from her family,
stalked her, texted her from various numbers, harassed her at her
job, placed a tracking device on her car, threatened her nephew,
and left apology notes on her car. When CSW offered to help her
obtain a restraining order, mother declined because she had already
unsuccessfully tried several times, including on March 19, 2021.
3
With regard to the March 24, 2021 incident, mother saw
father following her on her way home from work, became upset and
tired of his behavior, so she “raced father to her home,” blocked him
in her driveway, and called the police. Father became upset, got out
of his car, went to the driver’s side of her car, punched her head
three times and then punched her car several times. Adam was in
father’s car and mother claimed that he “witnessed everything.”
Mother said father was a good father to his children and
stepchildren and very loving and attentive toward Adam, who was
attached to him. She said Johnnie lived with father both because
he was bonded with him and all paternal relatives and due to the
language barrier with maternal relatives, who spoke Spanish,
which Johnnie did not understand. Mother was not worried that
father would neglect or harm the children and said she wanted to
coparent with him because that would be in the children’s best
interests. Mother, who was living in maternal grandmother’s home,
intended to move with her children to her own apartment but faced
difficulty finding one given her poor credit.
CSW spoke with mother several times between April 1 and
May 10, 2021. On April 1, mother said father had not continued to
harass her and when CSW reminded her of the offer to help her
apply for a restraining order and to seek custody, mother responded
that father would not like that and that it would not be the best
decision to keep the children from father. Mother preferred to go to
family court first.
On April 16, when they next spoke, mother told CSW that
father had not continued to bother her, and she had not had time to
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apply for a restraining order or custody, but she had completed
DCFS medical forms.3
Mother had applied for a restraining order on March 19, but
did not have the required evidence, and was given a court date of
April 9, 2021, but she did not appear in court. Mother said she
forgot about having a court date, and she had to work that day.
When CSW told mother that the police report of the March 24
incident indicated that mother had refused an emergency
restraining order, mother claimed, “That’s a lie,” and that she
wanted one but was denied.
On May 7, mother said that she was doing what she could to
keep the children safe and succeeding. She applied for a
restraining order and received a temporary restraining order
(TRO), including a stay away order relating both to her and the
children, with a court appearance scheduled for May 28, 2021.
When CSW told mother that her investigation of mother’s requests
for restraining orders showed one had been granted on January 19,
2021, mother claimed that it had been “expunged” by the court
because she agreed to allow father visitation with the children.
Adam’s interview
After interviewing mother on March 31, 2021, CSW
interviewed Adam privately. He told her, “My daddy punch your
[sic] mom.” When asked what he meant, Adam made a fist, hit
himself on the head, said, “My daddy,” and, “He hit mom,” and she
threw water at him. Adam told CSW that he was in father’s car
during the incident. When she asked Adam if he had ever observed
3 On May 3, mother had still not obtained a restraining order,
although on April 30, father followed her home where she dropped
off Adam. When she went back outside, she saw her adult niece
arguing with father, and mother called the police.
5
his parents fighting, being mean to each other, or using bad words,
he said, “My dad yell at my mom,” and indicated he used bad words
when he did, but no one yelled at Adam or used bad words to him.
The social worker noted that Adam had no visible marks or bruises,
and when asked if he ever felt happy, sad, afraid, or angry, Adam
said, “Happy.” Asked whether anyone drank beer at home, Adam
did not know what beer was. He said his father smoked outside the
house.
Father’s interview
On April 1, 2021, CSW interviewed father and Johnnie at
father’s home. Referring to the March 24 incident, father said, “I
admit to everything.” He said he would not lie, but disputed that he
punched mother on the head, claiming he hit mother’s car, not her.
Father said he wanted to reconcile with mother and admitted that
he had been following her but denied he was stalking her. He
explained that he had been trying to speak to her for several days,
but she was ignoring his attempts. Father went to maternal
grandmother’s home several days before the incident but denied he
was following her that day. He said that he drove past her place of
employment on the way to the maternal grandmother’s home to
drop off Adam from daycare, and when he arrived, mother blocked
him with her car and prevented him from leaving. Father became
upset and after he and mother began yelling at each other, he got
out, approached her window, and they continued to argue while
Adam remained in his car seat. Father became frustrated and hit
mother’s car but did not recall hitting mother. Mother then got
Adam out of his car seat, and father drove out of the driveway,
hitting a trash can and mother’s car while leaving. He then parked
his car up the street and walked back to speak to the police officers
who had arrived. Father said the police arrested him because
mother told them that he had hit her. He claimed that it was
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mother who hit him, but he did not tell the police because he did not
want her to be arrested.4 Father was released without charges a
few days later.
Asked about any past arrests, father acknowledged that he
had been arrested for drugs a long time ago, as well as for domestic
violence, which he described as “misunderstandings.” Father
denied any current substance abuse issues but admitted he smoked
cigarettes in the garage or backyard, never inside the home. Father
denied any mental health or medical issues, but he was having a
hard time coping with the separation. He reported to love mother
and want to reconcile, as they had done before, though this has
been their longest separation, and he felt that mother had changed
in the last three years. Father expressed a willingness to go into
counseling for anger management issues and would make an
appointment. He claimed family support to help get him through
this, and he intended to go back to church for help.
Father reported that he raised mother’s older biological sons
as his own, and they call him dad. One still lives with him, and
Johnnie too wants to stay with him. Father described his children
as well behaved, and Adam as his “little buddy.” Father’s discipline
methods for Adam are timeouts or loss of privileges, and for
Johnnie, the withholding of videos and videogames.
Johnnie’s interview
In a private interview with Johnnie, the CSW was told the
parents had “[s]mall arguments,” and “small hurtful words.” He
denied ever seeing father and mother hit each other. He explained
4 The police report indicated that father told the reporting
officer that mother reached through the window and struck him
twice on the chin. Father told the reporting officer that he did not
strike mother, that mother struck him, and that as he walked away
from her car, she got out of her car and threw a water cup at him.
7
that they would argue and walk away from one another, and five or
six times in the past mother had left home but returned in a few
hours or a day. When asked about discipline, Johnnie confirmed
that father would take away his video games or internet privileges.
Johnnie denied any abuse or neglect at father’s home and described
himself as “not the brightest” and said that both parents
encouraged him to express himself. He likes to make YouTube
videos and create anime characters. At father’s home, he shared a
room with his adult brother who was not always there, and said it
was comfortable and quiet, and “That’s why I don’t want to live with
my mom. I have my own space here.” However, he said once
mother got her own place he would move in with her. Johnnie
confirmed that father never smoked in the house and said that no
one “really drinks beer.”
Other interviews
Paternal grandmother Alma E. was interviewed by CSW on
April 1, 2021, when she denied witnessing any domestic violence
between mother and father. She said they argued as most couples
do, and she had no concerns about the children. Paternal
grandmother found mother attentive and responsible and father to
be a good father. Adam was attached to father, and Johnnie stayed
with father because he was comfortable.
On May 4, 2021, the staff at Adam’s daycare facility reported
that Adam was always clean and never exhibited marks or bruises.
Adam was happy when mother dropped him off in the mornings and
excited when father picked him up in the evening.
Removal of the children
On May 13, 2021, CSW went to the home of Luz N. (maternal
aunt), where mother and children were living, with a warrant to
remove the children from mother. Maternal aunt asked that the
children remain in her care, offering to have mother move out of the
8
home if necessary. When contacted by telephone, mother agreed to
move out of the home. Father agreed to the placement.
May 20, 2021 detention hearing
Despite both parents having received proper notice of the
detention hearing, mother did not appear. Counsel for mother had
been unable to make contact with her. Counsel for father entered a
general denial to the petition. The juvenile court ordered the
children detained from parental custody and to remain in the care
of maternal aunt. The parents were to be referred to services to
include domestic violence and parenting classes, as well as
individual counseling. Parents were given monitored visits, with
discretion in DCFS to liberalize, and mental health assessments for
the parents and the children. The court scheduled mother’s
arraignment and plea for June 18, 2021, and the adjudication
hearing for June 28.
Mother appeared on June 18 and entered her denial to the
petition. The court granted mother’s request for a TRO, scheduled
the hearing on a permanent order for June 28, 2021, at the time set
for adjudication (which was later continued several times), with the
Department’s last minute information to be filed June 25. The
court ordered continued detention at the home of maternal aunt
with discretion in DCFS to allow mother to move back into the
home. The last minute information, filed June 24, did not
recommend that mother move back into maternal aunt’s home.
Jurisdiction/disposition report
The Department filed a jurisdiction and disposition report
prior to the scheduled date of June 28. The report incorporated
much of the detention report, including statements regarding the
incidents leading to these proceedings and updated statements
taken between June 10 and 14, 2021.
9
Mother
Mother, in another interview, recounted the incident of
March 24 and disagreed with some of the allegations contained in
the petition as well as her prior statement that Adam was in
father’s car. “Completely wrong. First of all, my son was out of the
car. I never placed the trash can in back of his car. When he was
leaving he hit my car. Next to my car, there were the trash cans
outside. He hit the trash can. He came at me and hit me three
times. I grabbed a cup and threw it at him. Adam was on the side
of the driveway and I grabbed him. Adam saw what happened. I
never hit his chin.” Mother said that in their 20 years together
their arguments had never escalated into physical fights. She
added that the harassment “started right after I left the home. We
were constantly arguing. He was jealous and thought I was
cheating on him. I just could not take the fact that he did not trust
me. I left with Adam and Johnnie stayed with dad. He was
stalking me but he did not do that in front of the kids. . . . I will
never take him back. It is my kids before him.”
Father
In a reinterview on June 11, 2021, father explained that on
March 24 when he approached mother’s car, he intended to “grab
her shoulders and say ‘what are you doing?’ but she moved thinking
I was going to hit her. My hand graced [sic] her while she was
moving and when I pulled back I pulled her hair. She . . . hit me. I
do not blame her. She threw a cup of water at me. Adam was in
the car seat in my car.”
Of the April 30, 2021, incident, father stated:
“I was driving and stop to get a monster (drink). I
pulled into [a] gas station . . . . [Mother] was at the
other gas station next door. We made eye contact. She
said to me ‘Fuck you’ then I went to her home to talk to
her and ask why does she cussed me out [sic]. She
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thought I was following and stalking to her. At her job,
I went and left a note with flowers. I did put track[ing]
devices on her car. That is true. I texted her. We have
been together for 20 years. I wanted to catch her with
someone and pro[ve] I was right. I was trying to make
amends with her. I am surprised that she is carrying
things this far[,] it is not like her. She would have
given me the opportunity and call me by now. I do want
to make it work and fix everything. To keep the
restraining order strikes me as odd. She would have
lifted it already.[5] I am a human being and I make
mistakes. It got the best of me. I cannot take it back.
Does that mean I am a bad father? Does that mean I
want to hurt my kids? Does that mean I want to hit
[mother]? No. I will never not admit when I am wrong.
I am here because I want to be a better [father] and a
better person.”
Johnnie
Johnnie thought his parents had a “good relationship” and
explained: “Sometimes they will have fights like this one but then
in a few days they will be back together. This is not part of the
script. It is not supposed to be like this.” He added, “One of them
would say something vulgar and raise voice and the other one
would get mad. It is not that bad and no big deal. It was not often.
They would be mad with each other a day or two. Sometimes
[maternal grandmother] would be called and she [would] come over
or my mom would take the two of us and leave. We would go to
[paternal grandmother’s] house. My dad would go and talk to my
mom and it was fixed.”
5 Another time, father admitted to CSW that there had been an
occasion in 2019 when he pushed mother because she “came at
[him]” during an argument, which prompted her to obtain a
restraining order that she later dropped.
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Adam
With regard to the March 24 incident, Adam said, “Daddy hit
my mom. I was standing with my daddy. They do not want to be
with each other anymore. My dad pushed my mom and my mommy
hit my dad. My mommy was crying for me.” Adam added, “[T]hey
hit each other. They yell at each other. That is it.” He
demonstrated how mother and father would fight with his hands as
if he was hitting someone.
Maternal Aunt
Maternal aunt thought father was a good father and was
surprised to hear that father hit mother because he seemed
respectful. All past arguments as far as she knew were verbal.
After the driveway incident Adam said to her, “My daddy hit my
mommy.”
Paternal grandmother
Paternal grandmother was aware of occasional verbal
arguments but had never seen any physical altercations between
them.
The director of Victory Outreach Men’s Home
The director of Victory Outreach Men’s Home, a Christian-
based ministry working with people going through a difficult time,
reported that father began the program on June 9, 2021, intending
to participate for three months, but left the program three days
later.
Parents’ past issues
The Department reported that mother had a history of
methamphetamine use, apparently resolved in 2003, and in 2000
father was convicted inflicting corporal injury on a previous
coparent.
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Case plan
The Department concluded that mother and father have a
history of engaging in physical altercations in the presence of the
children and that both parents deny domestic violence. The
Department recommended that the amended petition be sustained,
that the children be declared dependents of the court pursuant to
section 300, subdivisions (a) and (b), and that family reunification
services be ordered for both parents. For mother, the Department
recommended orders for individual counseling to address issues
including child protection and domestic violence, as well as
domestic violence and parenting programs. For father, the
Department recommended orders for individual counseling and
programs in domestic violence and parenting. The plan also
included orders for counseling and mental health assessments for
the children. The Department recommended separate monitored
visits with discretion to liberalize as to mother.
Jurisdiction, disposition, and restraining order hearing
The June 28 hearing was eventually continued to August 2,
2021. The Department’s evidence was admitted. Father pled no
contest to the amended petition, and the juvenile court found the
allegations true as to him.
Mother had not yet enrolled in any programs, but would do so
if ordered. The parties stipulated that mother would testify that
she does not deny domestic violence incidents between her and
father or that there were physical incidents in 2020, 2019, and
March 2021; that she would start domestic violence counseling; and
that she can financially provide for the children.
Mother submitted the issue of jurisdiction to the court, which
found both counts to be true and sustained the petition as to mother
and granted mother (alone, not including the children) a three-year
permanent restraining order against father. The court found by
13
clear and convincing evidence as required by section 361,
subdivision (c) that there were no reasonable means to keep the
children safe without removal at that time. The court expressed
concern that mother appeared to be suffering from battered
women’s syndrome as demonstrated by the “fits and starts” of her
relationship with father, her inconsistency in breaking with father,
and obtaining restraining orders and then taking them away. The
court also found that while father had complied with his case plan,
mother had not.
The court ordered the children to continue to live with
maternal aunt with monitored visits for each parent with discretion
in DCFS to liberalize, so long as mother and father visited
separately. The section 366.21 review hearing was scheduled for
January 31, 2022.
Mother filed a timely notice of appeal from the judgment.
DISCUSSION
I. Jurisdiction
Mother contends that the jurisdictional findings made
pursuant to section 300, subdivisions (a) and (b)(1), are
unsupported by substantial evidence.
A. Standard of review
“If the court finds that the child is a person described by
Section 300, it may order and adjudge the child to be a dependent
child of the court.” (§ 360, subd. (d).) “‘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
14
note that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient
facts to support the findings of the trial court. [Citations.] ‘“[T]he
[appellate] court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence . . . such that a reasonable trier of fact could
find [that the order is appropriate].”’”’” (In re I.J. (2013) 56 Cal.4th
766, 773.) It is mother, as the appellant, who bears the burden to
show that insufficient evidence supports the jurisdictional findings.
(Ibid.)
B. Section 300, subdivision (a)
Section 300, subdivision (a) provides in relevant part: “A
child who comes within any of the following descriptions is within
the jurisdiction of the juvenile court . . . : [¶] “(a) The child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm inflicted nonaccidentally upon the child by
the child’s parent or guardian.”
Mother contends that jurisdiction is not supported by
substantial evidence that they were at a substantial risk of
nonaccidental serious physical injury caused by their parents.
Relying on In re Cole L. (2021) 70 Cal.App.5th 591 (Cole), mother
argues that there was insufficient evidence of a risk of
nonaccidentally inflicting harm on Adam during the argument in
which father hit mother because Adam was in the car and thus not
close enough to be injured. In Cole, the appellate court noted that
“‘[n]onaccidental’ generally means a parent or guardian ‘acted
intentionally or willfully.’” (Id. at p. 600, quoting In re R.T. (2017) 3
Cal.5th 622, 629.) The court acknowledged that “[a]cts of domestic
violence themselves, of course, are intentional.” (Cole, at p. 603.)
Nevertheless, the court indicated that a child would have to be very
15
close to the violence to amount to a risk of nonaccidental injury and
that “[a]n unintended injury to a bystander child that results from
an intentional act directed at another—for example, due to an
object thrown by one parent at another during an argument—
[would] not satisfy that statutory requirement.” (Ibid.)
We disagree. “Domestic violence is nonaccidental.” (In re
Giovanni F. (2010) 184 Cal.App.4th 594, 600.) When exposure to a
parent’s domestic violence places a child at substantial risk of
serious physical harm, the application of section 300, subdivision (a)
is appropriate even though cases based on exposure to domestic
violence can be filed under section 300, subdivision (b).
(Giovanni F., at p. 600; see In re Nathan E. (2021) 61 Cal.App.5th
114, 121-122.) In some cases, such exposure may include throwing
objects and pushing the other parent. (Cf. In re M.M. (2015) 240
Cal.App.4th 703, 720-721.) Mother’s argument suggests that the
violence must be “horrendous” as in In re Giovanni F., supra, at
pages 599-600, or perpetrated in a specific proximity to the child as
in In re M.M., supra, at page 720. Neither case requires specific
acts or distance. The legislative purpose of the laws relating to
dependent children, including section 300, subdivision (a), is to
provide maximum safety and protection for children from acts or
omissions that place them at a substantial risk of suffering serious
physical harm or illness. (In re M.M., at p. 720; see § 300.2.)
Section 300, subdivision (a) seeks to avoid a substantial risk of
nonaccidental injury and does not require an extreme risk or a
specific distance between the violence and the child before acting to
protect the child.
Nor does Cole support mother’s arguments, as its facts are
distinguishable. In Cole, “it was undisputed the children were
asleep in a bedroom, away from their parents, during the single
domestic disturbance for which there was any concrete evidence.”
16
(Cole, supra, 70 Cal.App.5th at p. 604.)6 In Cole, there was no
direct evidence that either parent hit the other or threw anything.
The police were called due to the sound of “screaming, yelling,
banging and slamming” in the home and the responding officer
observed that mother and father were under the influence of alcohol
and had scratches and bruises. (Cole, at pp. 595-597.) Here, Adam
reported that he was standing with his father during the March 24
incident and saw father punch mother. Although mother said
Adam was inside father’s car, she also said Adam was outside the
car when she threw the cup of water. Mother claimed to be
defending herself, but her statements indicate that mother got out
of the car in order to throw an object at father as he walked away.
Mother admitted she threw the only thing that was nearby and
then grabbed Adam, suggesting Adam was close to her when she
threw the cup.
We conclude that substantial evidence supported the juvenile
court’s finding that Adam was at substantial risk of injury due to
his exposure to domestic violence.
C. Section 300, subdivision (b)(1)
Section 300, subdivision (b) provides in relevant part: “(1) The
child has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of . . . [¶] (A)
The failure or inability of the child’s parent or guardian to
adequately supervise or protect the child. [¶] . . . [¶] (3) The child
6 We do not agree with mother’s assertion that Cole is
indistinguishable because there, in an incident that had allegedly
occurred two years earlier, the mother hit the maternal
grandmother while the latter was holding the child and the
maternal grandmother pepper-sprayed the mother. DCFS closed
that matter as inconclusive. (See Cole, supra, 70 Cal.App.5th at
p. 597.)
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shall continue to be a dependent child pursuant to this subdivision
only so long as is necessary to protect the child from risk of
suffering serious physical harm or illness.”
Mother contends that substantial evidence did not establish
that a risk of harm existed at the time of the jurisdictional hearing.
“Although section 300 requires proof the child is subject to the
defined risk of harm at the time of the jurisdiction hearing
[citations], the court need not wait until a child is seriously abused
or injured to assume jurisdiction and take steps necessary to protect
the child. [Citations.] The court may consider past events in
deciding whether a child presently needs the court’s protection.”
(Cole, supra, 70 Cal.App.5th at pp. 601-602, citing In re J.N. (2021)
62 Cal.App.5th 767, 775.)
Mother contends that any risk had been resolved by the time
of the jurisdiction decision on August 2, 2021, as there had been no
violence involving the couple for over four months. She relies on a
comparison to In re Ma.V. (2021) 64 Cal.App.5th 11, where there
had been a 10-month separation between mother and her boyfriend
between referral and jurisdiction and disposition. In that case, the
appellate court reversed a juvenile court’s jurisdictional findings
and removal order because its findings were based on stale acts of
domestic violence and because the mother had resolved the key
concerns that were the basis for jurisdiction. (Id. at pp. 23-26.)
Unlike here, mother was receiving individual, parenting, and
domestic violence counseling even though the juvenile court had not
ordered a case plan. Mother had so improved her situation the
earlier issues had “aged out.” (Id. at pp. 18, 23-25.)
Mother points to the following evidence to support her
assertion that the passage of four months between referral and
adjudication demonstrated that there was no current risk: neither
parent had inflicted physical harm on either child; the last incident
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of physical domestic violence occurred in March 2021; prior
attempts to obtain a restraining order were unsuccessful; she
obtained a TRO on May 7, 2021, made permanent on August 2,
2021; she was separated from father for a month prior to the March
incident and showed no intention thereafter to resume a
relationship with him; and while father had a prior domestic
violence referral with another partner, the Department had
received no prior referrals concerning father and mother. Mother
concludes from this evidence that father’s long ago domestic
violence referral with another partner and the period between the
juvenile court’s temporary and permanent restraining orders did
not provide evidence of a current risk. She also concludes that the
juvenile court erred in finding that she was inconsistent in breaking
her relationship with father, arguing that her past attempts to
obtain restraining orders show otherwise, and thus there is no
current risk to the children.
Under the substantial evidence standard of review, the issue
is not whether there is sufficient evidence to support mother’s
position, but whether substantial evidence supports the juvenile
court’s ruling. (See In re Caden C. (2021) 11 Cal.5th 614, 640.)
Mother acknowledges that the record must be viewed in the light
most favorable to the court’s determinations and that all reasonable
inferences from the evidence must be drawn in support the court’s
findings and orders. (See In re I.J., supra, 56 Cal.4th at p. 773.)
However, her conclusions are drawn only from fragments of
evidence favoring her position.
When the whole record is viewed in the light most favorable
to the juvenile court’s order, substantial evidence shows that
mother had been inconsistent in breaking her relationship with
father and the three-month period between the temporary and
permanent restraining orders did not disprove current risk. Mother
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claimed she and father had separated in February 2021 after 20
years together due to his verbal, mental and psychological abuse
and his having isolated her from her family, stalked her, and
harassed her at her job. Father and Johnnie both reported that
after arguments, mother would leave for several hours or a day and
then return. Several times mother demonstrated a reluctance or
refusal to obtain or enforce restraining orders against father. Her
back and forth separations from father occurred several times prior
to 2021 and into February 2021 even though she had obtained a
restraining order against father in January 2021, which she
thought she had expunged.
Mother claims that other attempts to obtain a restraining
order had been unsuccessful, but evidence suggests she did not
diligently pursue them. When the police offered her an emergency
restraining order on March 24, 2021, she declined. She claims to
have attempted to obtain a restraining order on March 29, 2021.7
When she appeared on the March date, she was given another court
date of April 9, 2021, but she failed to appear and later claimed that
she did not know about the court date and had to work. Mother
refused CSW’s several offers of help to obtain a restraining order.
On April 1, 2021, mother refused help, reasoning that father had
not harassed her after the March 24 incident, that he would not like
that, and that it would not be best for the children to keep father
away from them. On April 16, mother explained that she had not
had time to apply for a restraining order.
Current risk to a child may be shown by past conduct plus the
parent’s response to the conditions that gave rise to dependency
7 The page to which mother cites in the appellate record states
that she applied on March 19, 2021, not March 29, but that is
probably a typo, as that would be before the March 24 incident.
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proceedings. (See In re D.B. (2018) 26 Cal.App.5th 320, 332.) Here,
the violence between mother and father is not so remote that a four-
month separation, without addressing the issues causing the
dependency petition and detention, would show that the issues had
been resolved. Although parents may not have been referred to
DCFS prior to March 2021, mother admitted other incidents of
violence between her and father in 2020, 2019, and March 2021,
although she had previously denied physical fights in the past. The
children remembered past physical fights as well. Johnnie said
that while most of mother and father’s fights had been verbal,
“[s]ometimes” they had “fights like this one but then in a few days
they will be back together.” (Italics added.) Adam said, “[T]hey hit
each other. They yell at each other. That is it.” Adam
demonstrated by making a hitting motion with his hands. Although
the Department’s case plan had not been formally ordered by the
court until adjudication, it had been in place since June 28, 2021,
and as early as May 7, the court ordered DCFS to refer parents to
services including domestic violence, parenting, and individual
counseling. Prior to August 2, mother did not enroll in any
programs.
Given mother’s history of returning to father despite years of
abuse and domestic violence, her reluctance to obtain a restraining
order, and her resistance to recommended counseling and
programs, we conclude that substantial evidence supported the trial
court’s current risk findings under section 300, subdivision (b)(1), as
well as subdivision (a).
II. Removal of the children
Mother contends that substantial evidence did not support
removal of the children at the time of disposition.
As relevant here, section 361, subdivision (c)(1), provides that
the juvenile court may remove physical custody of the child from a
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parent where it finds by clear and convincing evidence that there
would be substantial danger to the physical health, safety,
protection, or emotional well-being of the child if returned home,
and there are no reasonable means to protect the child without
removal from the parent’s physical custody.
“When 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. In conducting its review, the 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.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-
1012.) As the appellant, mother has the burden of showing there is
no evidence of a sufficiently substantial nature to support the
dispositional findings or order. (See In re T.W. (2013) 214
Cal.App.4th 1154, 1161-1162.)
Mother seems to rely on the same evidence that she
previously summarized in the light most favorable to her position,
as well as on inferences similar to those that she drew from that
evidence to contest the juvenile court’s findings under section 300,
subdivisions (a) and (b)(1).8 Mother refers to her three requests for
8 In addition, mother states that she was the custodial parent
prior to the initiation of dependency proceedings by virtue of the
TRO issued on May 7, 2021, which she claims granted her sole legal
and physical custody of the children. We have reviewed the TRO
issued on that date by the superior court and find no language
awarding legal or physical custody to the children; and mother has
not shown or even alleged that custody was at issue in that case.
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restraining orders made after the March 24 incident, of which one
was denied and two granted, and points out that she followed them
from May to August 2021.9 Mother thus again argues that she was
diligent in obtaining restraining orders and suggests that any
denials did not show otherwise, although her successful attempt on
May 7, 2021, was made only when the juvenile court issued the
removal warrant, which was served just three days after mother
finally obtained a TRO.
Mother also suggests that the children would not have been in
substantial danger if they had been returned to her care, because it
was father who was the aggressor during the incidents of domestic
violence. She emphasizes that the final sentence of the amended
petition alleges that it was father’s actions that endangered the
children. Mother need not be found to be dangerous, and the child
need not have been harmed to justify removal, as the focus of the
statute is on averting harm to the child. (In re T.W., supra, 214
Cal.App.4th at p. 1163.) “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.” (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
As we explained in part II above, when viewed in the light
most favorable to the judgment, mother’s resistance to the services
offered by DCFS unless ordered to do so, mother’s history of
returning to her abuser, her refusal of offers of help in obtaining a
restraining order, her failure to appear in court or to follow up on
her applications, and her disregard for and attempted expungement
9 The May 7 TRO required father to follow it, not mother, and
we found no evidence that he did not do so.
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of a prior restraining order all support the conclusion that mother
was reluctant to break off her relationship with father, had not
quite resolved to stay away from him as she claims, and was
unwilling to make the effort to understand the conditions that gave
rise juvenile court intervention or to avoid their recurrence. And as
respondent notes, mother appeared to minimize the danger that
Adam may have been in while standing near the driveway as father
backed out in anger, hitting a trash can. Mother expressed concern
that she had been accused of placing the trash can behind his car.
We conclude that the same evidence supporting jurisdiction
supports the substantial danger finding under the heightened
standard.
Mother also disagrees with the juvenile court’s finding that
there were no reasonable means to keep the children safe without
removal from her. Mother does not, however, contend that the
court’s conclusion was not supported by substantial evidence.
Instead, mother suggests the means that she deems reasonable by
which the Department could have prevented removal, such as
supervision of the family by the juvenile court and the Department
while they and mother continued to reside with maternal relatives
with unannounced visits, as her counsel suggested. Mother fails to
explain how these suggestions would be substantially different or
any more effective than those measures that were in place prior to
disposition. Mother’s counsel also conceded on August 2, 2021, that
mother had not yet begun recommended classes, although counsel
assured the court that she was open to participating in family
preservation services. As mother had indicated that she would
participate in services only if ordered to do so, mother’s willingness
to consider participation does not demonstrate that the juvenile
court’s finding was unsupported by substantial evidence.
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Giving appropriate deference to how the juvenile court may
have evaluated mother’s credibility and resolved the conflicts in the
evidence, we conclude that the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have found a high probability of substantial danger to the physical
health, safety, protection, or emotional well-being of the child if the
child were returned home with mother.
DISPOSITION
The judgment of the juvenile court is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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