In re A.C. CA5

Filed 10/6/22 In re A.C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re A.C., a Person Coming Under the Juvenile
Court Law.
KERN COUNTY DEPARTMENT OF HUMAN F083841
SERVICES,
(Super. Ct. No. JD142156-00)
Plaintiff and Respondent,
v. OPINION
M.C.,
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Kern County. Marcos R.
Camacho, Judge.
Susan M. O’Brien, under appointment by the Court of Appeal, for Defendant and
Appellant.
Margo A. Raison, County Counsel, and Alexandria M. Ottoman, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Smith, J.
M.C. (mother) appeals from the juvenile court’s dispositional order removing her
daughter, A.C., from her custody pursuant to Welfare and Institutions Code section 361,
subdivision (c)(1).1 She argues there was insufficient evidence to support the court’s
finding that there would be a substantial danger to A.C.’s physical health, safety,
protection or emotional well-being if she were returned to her custody and there were no
reasonable means to protect her without removal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background
Mother has two children—D.H. (born April 2015) and A.C. (born June 2021).
D.H. is involved in separate dependency proceedings and is not part of this appeal;
however, his case is closely intertwined with this matter, and we provide relevant
information where necessary.
In October 2020, D.H. was removed from mother’s custody due to ongoing
domestic violence with her boyfriend (M.C.). In February 2021, at D.H.’s combined
jurisdiction and disposition hearing, the juvenile court sustained the petition and ordered
mother to participate in reunification services, including parenting/child neglect
counseling, domestic violence as a victim counseling, random drug testing, and
supervised visits.
In February and March 2021, mother called police on two occasions after she got
into verbal altercations with M.C. while he was at her house. In April 2021, social
workers went to mother’s house and found M.C. there. By that time, mother had already
completed a 10-week parenting/child neglect program and a 15-week domestic violence
class.
In May 2021, mother obtained a restraining order against M.C.
1 All further statutory references are to the Welfare and Institutions Code.
2.
B. Referral and Petition
In June 2021, the department received a referral on behalf of A.C. after mother
allowed M.C. to be present in the delivery room during A.C.’s birth. The department
contacted mother shortly after she and A.C. were discharged from the hospital to initiate
an investigation. Initially, mother denied M.C. had been at the hospital, but eventually
admitted he was there and cut the umbilical cord. She said he left once A.C. was born.
Mother was not sure whether M.C. was A.C.’s father and he was aware he might not be
the biological father. The social worker informed mother the department was concerned
with her ongoing relationship with M.C., but mother denied they were in a relationship.
Days later, a social worker contacted mother again. Mother reported the last time she
spoke to M.C. was on the date of A.C.’s birth, but that he had been calling her and
leaving voice messages. She had not returned his calls. The social worker told mother
she needed to apply what she learned in her domestic violence classes. Mother agreed
she should not have let M.C. be present during A.C.’s birth. Later that same day, mother
sent the social worker a text message stating that M.C. showed up at her house and she
was waiting for police to arrive.
The department subsequently filed a petition pursuant to section 300,
subdivisions (b) and (j) on behalf of A.C., alleging she was at substantial risk of suffering
serious physical harm due to mother’s inability to adequately supervise or protect her
from ongoing domestic violence with M.C. The department summarized D.H.’s
dependency proceedings and stated that mother continued to have contact with M.C. and
allowed him to be present at A.C.’s birth despite D.H.’s removal and the active
restraining order. The department noted that although mother had completed domestic
violence classes, she continued to show poor judgment as she was still in contact with
M.C., which placed A.C. at risk. The petition further alleged D.H. had been found to be
abused or neglected and there was a substantial risk A.C. would be abused or neglected
as well. The petition listed M.C. and A.H. as alleged fathers.
3.
C. Detention
The detention report showed mother had 11 prior child welfare referrals, 2 at least
five of which involved severe domestic violence incidents with D.H.’s father and M.C. 3
In May 2016, during an altercation with D.H.’s father, mother pulled a knife out on him
and was arrested for felony domestic violence and felony dissuading a witness. At some
point, D.H.’s father obtained a restraining order against her. In June 2020, during an
altercation with M.C., mother attempted to run him over and drove through a fence while
D.H. was in the car with her. In October 2020, she stabbed M.C. with a knife in D.H.’s
presence and a warrant was issued for her arrest for assault with a deadly weapon and
felony domestic violence. During the investigation of one referral, mother reported she
had previously obtained an emergency protective order against M.C. because he had
strangled her. However, she did not make it a permanent restraining order and continued
her relationship with him. That incident was not reported to child protective services
because D.H. was not present.
Additionally, there was one referral in November 2020 against M.C. in which
D.H. reported that “[M.C.] hit him, punched him and slammed [him] on the ground.”
D.H. said, “I did bad things. I sleep with older guys. They hit me, punch[,] and do other
stuff to me.” He could not describe what “other stuff” meant. D.H. wished M.C. was
gone. The referral stated D.H. had been removed due to domestic violence between
mother and M.C. M.C. had a long history of child welfare referrals involving another
woman and their children.
2 The detention report showed mother had 14 referrals, but three were duplicate
referrals that were made on a different day or in a different county.
3 Two referrals involved domestic violence incidents with D.H.’s father—one
referral was evaluated out and one was substantiated. Three referrals involved domestic
violence incidents with M.C. and were all substantiated.
4.
On June 30, 2021, at the detention hearing, the juvenile court ordered A.C.
detained from mother and ordered she be provided with reunification services and
supervised visits.
D. Jurisdiction
On July 8, 2021, mother was assessed for codependency counseling, but did not
meet the criteria for services and was referred to individual and family counseling.
Thereafter, mother began attending weekly individual counseling sessions. Additionally,
mother submitted to three random drug tests and tested negative each time.
On July 18, 2021, mother called police and reported she was sleeping at home
when M.C. crawled in through her window and attacked her with a towel. M.C. fled
before police arrived. Mother wanted him arrested for violating the restraining order.
She informed the officers that M.C. had gone to her house the previous week to drop off
dog food. The officers noted mother did not report M.C. for violating the restraining
order the previous week. Due to the lack of evidence, only a report was made.
On July 19, 2021, mother called police while she was at her stepfather’s house to
report that M.C., who was across the street at his parents’ house, had been harassing her
and texting her all day. M.C.’s parents lived across the street from mother’s stepfather’s
house. When police arrived, M.C. was exiting his parents’ front yard. Officers spoke to
his parents who reported that, to their knowledge, M.C. lived with mother. M.C. was
arrested for violating the restraining order. While being arrested, M.C. told officers he
had sex with mother every night and stayed with her.
On September 30, 2021, the juvenile court held A.C.’s jurisdiction hearing along
with D.H.’s six-month review hearing, noting the cases were “linked in many ways.”
Mother testified she invited M.C. to the hospital when A.C. was born and did not tell
hospital staff about the restraining order because she was not “thinking clearly” due to
being in labor. She stated, “I felt that there wasn’t a threat due to security at the hospital
and the nurses coming back and forth into my room.”
5.
Regarding the incident on July 19, 2021,4 she said she called police to report that
while she was at her stepfather’s house, M.C. would not stop harassing her, telling her
that he was going to vandalize her car if she did not go outside to talk to him. He was
across the street at his mother’s house. She finally saw him and told him she was going
to call the police if he did not leave her alone. She eventually did call the police to report
him. Mother was not aware M.C.’s mother told officers that M.C. lived with her. She
denied living with him. Mother further testified that on July 17, 2021, 5 M.C. broke into
her house and she reported the incident to police. Police went to her home and made a
report, but told her there was nothing they could do because M.C. had not been served
with the final restraining order. She had a friend serve him the next day. Mother claimed
she did not see M.C. from the date of A.C.’s birth to when he broke into her house.
On cross-examination, mother admitted she continued to communicate with M.C.
after the restraining order was granted. She said she attempted to block him from her cell
phone several times, but he would use someone else’s phone to contact her. She
considered changing her phone number, but had not done so. County counsel pointed out
that she showed officers text messages she received from M.C.’s phone number and
asked why she had not blocked his number. She said she did block his phone number,
but he called from other numbers. She denied knowing that M.C. told police they were
living together and having sex every night. She said the last time she saw him was on
July 19, 2021, but that he continued to leave her voicemails.
On redirect examination, mother testified that the text messages she showed the
officers came from “a number that [she] knew recently to be his number due to him
leaving the voicemails when the number was blocked and also a number that one of his
4 During testimony, mother referred to July 18, 2021, as the date in which she
reported M.C. while at her stepfather’s house but the record shows that incident occurred
on July 19, 2021.
5 The correct date of the break-in is July 18, 2021.
6.
friends used to call.” She said she had blocked “[a]t least two handfuls” of phone
numbers. She testified she could adequately protect her children by enforcing the
restraining order. She would call police and have him arrested for violating the
restraining order. She did not want to continue communicating with him or have a
relationship with him due to “the severity of the domestic violence and to keep [her]
children safe.” She said she learned a lot in codependency classes and individual
counseling.
The juvenile court sustained the petition and set a disposition hearing. It also
continued D.H.’s six-month review hearing because it felt A.C.’s disposition report
would be very important to D.H.’s case as well.
E. Disposition
A report prepared prior to the disposition hearing stated the department was
concerned because A.C. had been returning from visits at mother’s house smelling like
cigarette smoke. She did not smell like that when visits occurred at the visitation center.
This was concerning because M.C. had been seen smoking in mother’s living room
before. Mother did not smoke. When asked about the smell, mother blamed it on her
heater. During an inspection of mother’s home, two social workers noticed the heavy
smell of cigarette smoke in mother’s living room, which she again blamed on the heater.
Additionally, the report stated that in October 2021, a social worker overheard mother
telling D.H. that she would “ ‘pop’ ” him if he did not stop drinking her soda. When
asked about the statement, mother became defensive, stating that she was not going to be
told how to raise her children and that she would “ ‘whoop’ ” them if she had to because
it was not illegal. She proceeded to say that “ ‘Black children need to be whooped.’ ”
The social worker encouraged mother to avoid threats or hitting and provided her with
tips and ideas on how to address concerns.
On January 6, 2022, the juvenile court held A.C.’s disposition hearing and D.H.’s
six-month review hearing. Social worker Angelina Sanchez testified the department was
7.
concerned that mother would “get[] back” with M.C. due to their domestic violence
history, even though there was no evidence they had been in contact in recent months.
She said the department was recommending family reunification services for D.H. and
not family maintenance because mother had made comments about physically
disciplining him. Additionally, there were concerns that M.C. was visiting mother’s
home because when the children returned from mother’s home, they came back smelling
like cigarette smoke. Additionally, mother had not completed her case plan and the
department wanted her to have more time to demonstrate that she had truly changed her
behavior so that the children would be safe. Moreover, mother had possible felony
charges pending. The department was worried mother had not learned from her domestic
violence classes because she completed the classes before A.C.’s birth and she still asked
M.C. to attend the birth.
Social worker Bianca Mendez testified she had a conversation with mother about
“popping” D.H. Mendez asked mother what she meant by “popping” him and she said it
was a form of punishment. It meant “[h]itting or whooping.” Mother said she would hit
him on the hand if she needed to as hitting was not illegal. When asked what the current
risk to the children was if they were returned home, Mendez stated D.H. appeared “very
coached” by mother and was discouraged from talking to department staff. Mendez did
not believe mother had changed based on their conversations.
Social worker Jennifer Rodriguez testified A.C. would be at risk if returned to
mother’s custody because she could not speak, defend herself, or report what was going
on in the home. The department was also concerned that mother had individuals around
that were not supposed to be there. She acknowledged there was no evidence mother had
been in contact with M.C. since June or July 2021, “but there [was] concern regard ing the
smoking.” She said that if A.C. were returned to mother’s custody, the department would
be concerned about who was around and whether mother had learned to protect her.
8.
Mother’s counsel argued the children should be returned to mother’s custody on a
family maintenance plan. Minors’ counsel argued that after hearing the evidence, mother
should have increased visitation with discretionary unsupervised visits before moving to
family maintenance. County counsel argued it was concerning that mother had made
statements about threatening to hit D.H. because the children’s removal was caused by
domestic violence. Specifically, mother had been a perpetrator and used violence to
resolve issues. The department was not convinced she had changed her behavior. In
ruling, the court stated as follows:
“As to the issue of whether the Court is going to order [f]amily
[r]eunification [s]ervices, I think the evidence presented to the Court and
the evidence in the social study reports do create a concern for the Court in
terms of whether [mother] is yet there in terms of being able to provide a
safe environment for these children. I understand that there[] ha[s] been no
physical evidence in terms of contact with [M.C.] in the last couple months.
But as [minors’ counsel] pointed out, he was present at the hospital at the
birth of the child, [A.C.]. So there is concern on the Court’s part[] as to
whether [mother] fully understands what she learned in domestic violence
classes regarding staying away from [M.C.]. We do have the evidence of
the smoke in the home, which although is not conclusive that is [M.C.] or
somebody else, we do know mother doesn’t smoke. Those both are
testimony to the Court to say someone else was in the home that was
smoking, and we do know [M.C.] smokes. So again, that is a concern the
Court has. Mother hasn’t finished her case plan yet. Most likely [h]as
started it, but I think just in totality of the circumstances, specifically the
issue the mother has had in the past with the domestic violence, I think
there is sufficient evidence here for the Court to find that … these children
would be in substantial danger if they would be returned to the mother at
this time. I tend to agree with [minors’ counsel] that maybe the best thing
to do at this point is to start increasing visits with mother. Hopefully
leading to unsupervised visits. So I’ll give the [d]epartment discretion to
do that. But again[,] based on the totality of the circumstance[s], the Court
is going to go ahead and find at this time the appropriate orders would be
for the mother to have [f]amily [r]eunification [s]ervices with both
children.”
The juvenile court found by clear and convincing evidence that there was a
substantial danger to the physical health, safety, protection, or emotional well-being of
9.
A.C. if she were returned to mother’s custody. The court ordered her removed and found
mother had made moderate progress toward alleviating or mitigating the causes
necessitating placement. Mother’s reunification services were continued with supervised
visits. M.C. and A.H. remained alleged fathers as they failed to participate in paternity
testing and were not provided with services.
On February 2, 2022, mother filed a notice of appeal.
DISCUSSION
Mother contends the juvenile court’s removal findings and orders are not
supported by substantial evidence because she actively avoided voluntary contact with
M.C. and there were reasonable alternatives to protect A.C. without removing her from
her custody. We disagree.
“A dependent child shall not be taken from the physical custody of his or her
parents … with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence … [¶] (1) [That] [t]here is or 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).)
“Because we so abhor the involuntary separation of parent and child, the state may
disturb an existing parent-child relationship only for strong reasons and subject to careful
procedures.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) Therefore, California law
“requires that there be no lesser alternative before a child may be removed from the home
of his or her parent.” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284.) But “ ‘ “[t]he
parent need not be dangerous and the minor need not have been actually harmed before
removal is appropriate. The focus of the statute is on averting harm to the child.”
10.
[Citation.] The court may consider a parent’s past conduct as well as present
circumstances.’ ” (In re John M. (2012) 212 Cal.App.4th 1117, 1126.)
“On appeal from a dispositional order removing a child from a parent we apply the
substantial evidence standard of review, keeping in mind that the trial court was required
to make its order based on the higher standard of clear and convincing evidence.” (In re
Ashly F. (2014) 225 Cal.App.4th 803, 809; Conservatorship of O.B. (2020) 9 Cal.5th
989, 1005 [“when presented with a challenge to the sufficiency of the evidence associated
with a finding requiring clear and convincing evidence, the court must determine whether
the record, viewed as a whole, contains substantial evidence from which a reasonable
trier of fact could have made the finding of high probability demanded by this standard of
proof”].) “Consistent with well-established principles governing review for sufficiency
of the evidence, in making this assessment the appellate court must view the record in the
light most favorable to the prevailing party below and give due deference to how the trier
of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence,
and drawn reasonable inferences from the evidence.” (Conservatorship of O.B., supra,
9 Cal.5th at p. 1005.) “ ‘ “The ultimate test is whether it is reasonable for a trier of fact to
make the ruling in question in light of the whole record.” ’ ” (In re Yolanda L. (2017) 7
Cal.App.5th 987, 995–996.)
In the present case, A.C. was removed due to mother’s ongoing domestic violence
with M.C. (See In re I.R. (2021) 61 Cal.App.5th 510, 521 [“domestic violence poses [a
serious threat] to a child’s physical and emotional well-being”]; In re V.L. (2020) 54
Cal.App.5th 147, 156 [“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.” ’ ”].) Substantial evidence shows that removing A.C.
from mother’s custody was necessary to protect her physical and emotional well-being,
11.
and there were no other reasonable means to protect her without removal. (§ 361,
subd. (c)(1).)
The record shows mother had a significant history of engaging in domestic
violence dating back to 2016. She had 11 child welfare referrals, at least five of which
involved serious domestic violence incidents. Mother was the victim in some instances,
and the perpetrator in others. She had been arrested at least twice for perpetrating
domestic violence and had charges pending for a separate incident. These incidents
occurred in front of D.H., and one incident in particular put D.H. in substantial danger.
During an altercation with M.C., mother attempted to run him over and drove through a
fence with D.H. in the car. Mother’s ongoing domestic violence problems ultimately led
to D.H.’s removal.
But even after D.H.’s removal, mother continued her toxic relationship with M.C.,
exposing herself to continued domestic violence. In February and March 2021, M.C. was
at mother’s house on two occasions and they engaged in verbal altercations requiring
police intervention. At that time, mother was already pregnant with A.C. Thereafter, in
April 2021, mother again allowed M.C. to be at her house. In May 2021, mother finally
obtained a restraining order against him.6 By that time, mother had already completed
her parenting and domestic violence classes. Evidently, neither D.H.’s removal, nor a
restraining order or domestic violence classes, were sufficient to keep mother away from
M.C. because she then proceeded to invite him to the hospital during A.C.’s birth.
Mother argues she actively avoided contact with M.C. after A.C.’s birth. We
acknowledge that the record shows mother reported M.C. for three restraining order
6 We note that the May 2021 restraining order against M.C. was mother’s
second restraining order against him. Mother had previously obtained an emergency
protective order against M.C. after an incident in which he strangled her, but she did not
follow through with a permanent order and instead continued her relationship with him.
(See In re R.C. (2012) 210 Cal.App.4th 930, 942 [“ ‘ “[P]ast violent behavior in a
relationship is ‘the best predictor of future violence.’ ” ’ ”].)
12.
violations after A.C. was born. These incidents occurred approximately five to
six months prior to the disposition hearing. The juvenile court, however, could have
reasonably concluded mother was still in contact with M.C. in light of the contradictory
evidence before it. For instance, during the July 18, 2021 break-in to mother’s house,
mother told officers M.C. had gone to her house and dropped off dog food the week
before. Mother did not report that restraining order violation. Additionally, during the
July 19, 2021 incident that occurred at mother’s stepfather’s house, mother showed police
officers text messages she received from M.C.’s phone number, even though she claimed
to have blocked his number. That same day, M.C.’s parents told officers they believed
M.C. was living with mother, and M.C. reported he was having sex with mother every
day and staying with her. Additionally, there was evidence that A.C. returned from
mother’s house smelling like cigarette smoke, but did not smell like that when visits
occurred at the visitation center. Mother did not smoke, but M.C. had been seen smoking
in mother’s living room. Thus, the court could have reasonably concluded mother was
still in contact with M.C., putting A.C. at risk if she were returned to mother’s custody.
Moreover, we note that mother’s statements about physically discipling her
children further indicated mother had not yet learned to apply what she learned in
parenting and domestic violence classes by the time of the disposition hearing. She
continued to believe that using violence was an acceptable method to solve her problems.
Mother claims the department did not consider alternatives to removal, but
mother’s counsel specifically questioned the social workers about family maintenance
and the risk of returning A.C. to mother’s custody at the disposition hearing. Social
worker Rodriguez testified A.C. would be at risk if returned to mother’s custody because
she could not speak, defend herself, or report what was happening in the home.
Additionally, mother’s counsel, minors’ counsel, and county counsel addressed this point
in argument. On appeal, mother does not identify alternative measures the department
could have taken to ensure A.C.’s safety other than her removal.
13.
We conclude substantial evidence supports the juvenile court’s dispositional
findings that removing A.C. from mother’s custody was necessary to protect her physical
and emotional well-being, and there were no other reasonable means to protect her
without removal.
DISPOSITION
The juvenile court’s dispositional order is affirmed.
14.