In re Nathan E.

Filed 2/22/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re NATHAN E. et al., B306909
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No.
20CCJP01475)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
MONICA A.,
Defendant and
Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Sabina A. Helton, Judge. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, Acting County Counsel, Kim
Nemoy, Assistant County Counsel, and Stephen D. Watson,
Deputy County Counsel, for Plaintiff and Respondent.
____________________________
The Los Angeles Department of Children and Family
Services (DCFS) removed Nathan E. (Nathan) (then four),
Andrew A. (Andrew) (then two), and Noah E. (Noah) (then eight
months old) from their parents, Monica A. (mother) and Joey E.
(father) on March 30, 2020, after investigating a report of a
February 2020 domestic violence incident. DCFS’s petition
alleged two counts each under Welfare and Institutions Code
section 300, subdivisions (a) (serious physical harm) and (b)
(failure to protect), and another count under subdivision (j)
(abuse of sibling). 1
At a combined jurisdiction and disposition hearing on July
9, 2020, the juvenile court sustained counts a-1 and b-1 based on
the parents’ history of multiple domestic violence incidents and
dismissed counts a-2, b-2, and j-1 as to each of the children. The
juvenile court ordered reunification services, separate visitation
for mother and father, and ordered that the children remain
placed with their paternal grandparents.
Mother appeals from the juvenile court’s jurisdiction and
disposition orders, contending that the record lacks evidence
sufficient to support those orders. We find substantial evidence
to support the juvenile court’s orders, and we will affirm.
1 Further statutory references are to the Welfare and
Institutions Code.
2
BACKGROUND
Mother and father began dating in 2008 and married in
2015. Nathan was born in 2015, Andrew in 2017, and Noah in
2019.
On the evening of February 1, 2020, the Long Beach Police
Department (LBPD) responded to a domestic violence call at
mother and father’s apartment. According to mother, she and
father began arguing in her bedroom while the children all slept
in a different bedroom. Mother told police that evening that
father began yelling at her and pulling on a necklace that mother
was wearing. Mother told police that father scratched and
clawed at her neck and the responding officers saw scratches on
mother’s neck.
When father left the bedroom, mother reported, she shut
and locked the bedroom door behind him. The police report says
that father started “punching and hitting the bedroom door” and
that he fled the apartment shortly thereafter.
In the police report that sparked DCFS’s investigation, one
of the responding officers stated: “I was able to locate three
previous domestic violence incidents between [mother and
father.] I also located a restraining order violation between the
two.” Another LBPD officer—one who had not responded to the
incident that prompted DCFS’s investigation, but who later
accompanied DCFS to the apartment to serve an investigative
search warrant on mother—told DCFS that “he is familiar with
the family as he has been out to the home for domestic violence
between the parents” and that around the time of the February
incident, police were at the apartment “two days in a row.” The
officer reported that he personally had “discussed with the
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parents the detriment of domestic violence especially in the
presence of the children.”
DCFS initiated its investigation based on a referral after
the February 1, 2020 incident and was able to contact mother on
February 18, 2020. Mother confirmed an appointment with
DCFS on February 20, 2020 at the parents’ apartment, but there
was no answer at the door or mother’s phone number when DCFS
arrived for the appointment. After repeated DCFS attempts to
contact her, mother answered her phone again on February 25,
but, according to the social worker who called her, when asked to
schedule a meeting with DCFS, mother started saying “Hello,”
repeatedly and then hung up the phone and did not answer
repeated attempts to reach her.
DCFS was able to schedule another meeting for February
27, 2020. But when the social worker tried to confirm the
meeting, mother told the social worker that she did “not feel that
it is necessary to have a DCFS investigation” and said that she
was unwilling to meet with the social worker.
DCFS sought, obtained, and served an investigative search
warrant on mother at her apartment on March 2, 2020. When
the social worker and accompanying LBPD officer knocked on
mother’s door, the social worker heard mother tell someone to not
open the door. Nathan opened the door in spite of mother’s
instruction.
When the social worker interviewed Nathan about the
February 1 incident, Nathan reported—contrary to mother’s
report to the police—that he was in the room when the incident
happened. He also told the social worker that his mother “got a
scratch.” Asked how mother was scratched, “Nathan stated that
mother scratched herself.” Nathan told the social worker that he
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had seen mother push father down stairs during a prior domestic
violence incident.
Nathan and Andrew both reported that mother disciplined
them by giving them “pow pows.” Nathan described a “pow pow”
as a spanking on the bottom and hand with a slotted wooden
spoon, but denied ever having any physical injury as a result of
the spankings.
The social worker asked mother what happened during the
February 1 incident; mother responded, “I am not going to say.”
Mother reported that when the incident happened, the children
were all asleep in a different room. Mother expressly denied that
Nathan was in the room with mother and father during the fight,
and repeated that the children were all asleep. But when asked
where in the home she and father were, she replied, “I’m not
going to say.”
Asked whether she had obtained an emergency protective
order as she had told police and DCFS she would, mother replied,
“I’m not going to say.” Asked about a criminal protective order
father had obtained against her from 2015 (later modified to be a
peaceful contact order so the parents could live together), mother
responded that she had her record expunged so that there would
be no record of it. The social worker explained that the order
remained in place, and would be in place until 2025.
Mother shared with the social worker that she had been
arrested for domestic violence against father—mother had
stabbed father—in 2015 and had completed a 52-week domestic
violence course, but told the social worker that she had no other
criminal history. (Mother’s 2015 arrest and subsequent
conviction also included a charge for resisting an executive
officer.)
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DCFS filed a petition under section 300, subdivisions (a),
(b), and (j) on March 12, 2020, alleging five counts as to each
child. Counts a-1 and b-1 alleged that mother and father had
placed the children at substantial risk of serious physical harm
by engaging in violent physical altercations with each other in
the children’s presence. Counts a-2, b-2, and j-1 each alleged that
mother physically abused Nathan by striking him with a wooden
spoon on his buttocks, which placed Nathan and his siblings at
risk of serious physical harm. The juvenile court entered orders
on March 13, 2020 detaining all three children from the parents.
During an interview on March 27, 2020 (after the children
were detained), mother was more cooperative with DCFS.
During this interview, mother reported that after the February 1
incident, “I had a small scratch, but I think I may have done that
myself, I was scratching myself.” Mother denied ever having
pushed father down stairs. Mother told the social worker that
she did not believe she had violated a protective order because
she believed she had applied for her record to be expunged.
In documents filed with the juvenile court, DCFS identified
evidence regarding the parents’ domestic violence issues with the
following bulleted list:
• “In January 2019 father was charged with violating a
court order to prevent domestic violence[.]
• “Father was issued a Criminal Protective Order to be
protected from mother after a [domestic violence]
incident between the parents in 2014[.]
• “Mother and father conceived the child Andrew in the
time that the Criminal Protective Stay Away Order was
active and before the order was modified to be peaceful
contact.
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• “The parents have failed to uphold the peaceful contact
order as there was a [domestic violence] incident on
2/1/2020 in the home while the children were present.
• “Mother was issued an Emergency Protective Order
after the [domestic violence] incident on 2/1/2020, but
she failed to follow up to get a Restraining Order against
father after the referral incident and stated to [the social
worker] that she intended to do so ‘eventually’ but as of
yet has not made such efforts to be protective of the
children.”
The juvenile court held combined jurisdiction and
disposition hearings on July 9, 2020. The juvenile court
sustained counts a-1 and b-1 (the domestic violence counts) and
dismissed counts a-2, b-2, and j-1 (the physical abuse counts) for
each child as to both parents, and concluded each child was a
person described by section 300, subdivisions (a) and (b). The
court ordered the children removed from the parents and placed
with the paternal grandparents under the supervision of DCFS.
The court ordered reunification services and visitation (never
together) for both parents.
Mother filed a timely notice of appeal. 2
DISCUSSION
On the face of her arguments, mother challenges the
sufficiency of the evidence to support the trial court’s
jurisdictional and dispositional findings. Underlying mother’s
contention, however, runs an assertion that evidence of domestic
violence between parents will never suffice to support a
2 Father filed no notice of appeal.
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jurisdictional finding under section 300, subdivision (a), because
such violence is not aimed at the child and thus any harm it may
cause would not be “inflicted nonaccidentally upon the child” as
subdivision (a) requires. (§ 300, subd. (a).) Mother next argues
that, in any case, the record does not contain substantial evidence
of the level of risk to the children necessary to support
jurisdiction under either section 300, subdivision (a) or section
300, subdivision (b) and/or removal, and challenges both the
jurisdictional order and dispositional order on this basis. Finally,
mother argues that the record does not contain substantial
evidence that no reasonable means other than removal could
have neutralized the risk of harm to the children, and challenges
the dispositional order on this basis as well.
For its part, DCFS contends mother’s appeal is moot.
DCFS contends that because mother appealed and father did not,
we need not consider mother’s contentions. (See In re I.A. (2011)
201 Cal.App.4th 1484, 1491-1492.) Mother contends that
findings in this matter may impact any possible future
dependency proceeding involving these or any children mother
may have in the future. Although mother’s argument appears to
assume that there will be future dependency proceedings and
offers no other specific harm that sustained jurisdictional and
dispositional findings may bring her, we nevertheless exercise
our discretion to consider her appeal on the merits. (Id. at p.
1493.)
We disagree with mother’s contentions on the merits. The
evidence here is sufficient to sustain the juvenile court’s
jurisdictional and dispositional findings.
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A. Domestic Violence and Section 300, Subdivision (a)
Jurisdiction
Section 300, subdivision (a) creates juvenile court
jurisdiction over a child when 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.” (§ 300, subd.
(a).) Mother argues that to find jurisdiction under section 300,
subdivision (a), the juvenile court must find a substantial risk
that a child will suffer serious physical harm as a result of
violence or conduct aimed at the child, rather than conduct aimed
at another adult. Mother cites a variety of cases involving
physical assaults on children, including beatings and sexual
assaults. Mother’s argument appears to be that any injury
inflicted during a physical altercation between parents would be
accidental, and therefore any risk of that injury would not fall
within the bounds of subdivision (a).
Our colleagues in the Fourth District have specifically
rejected this contention. In In re Giovanni F. (2010) 184
Cal.App.4th 594, 598-599 (Giovanni F.), they concluded that “the
application of section 300, subdivision (a) is appropriate when,
through exposure to a parent’s domestic violence, a child suffers,
or is at substantial risk of suffering, serious physical harm
inflicted nonaccidentally by the parent.” “Domestic violence is
nonaccidental,” the court explained. (Id. at p. 600.)
The court also explained that “[a]lthough many cases based
on exposure to domestic violence are filed under section 300,
subdivision (b), section 300, subdivision (a) may also apply.”
(Giovanni F., supra, 184 Cal.App.4th at p. 599; see In re
M.M. (2015) 240 Cal.App.4th 703, 721 [where child present for
incident of domestic violence, “ongoing risk of domestic violence
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between mother and father placed minor at substantial risk of
serious harm under subdivision (a)”].)
We firmly reject mother’s contention that domestic violence
cannot be the basis for juvenile court jurisdiction under section
300, subdivision (a).
B. Applicable Legal Standards Below and on Review
To establish jurisdiction under section 300, subdivision (a),
DCFS was required to show by a preponderance of the evidence
that “circumstances at the time of the hearing subject the minor
to the defined risk of harm” (In re M.M., supra, 240 Cal.App.4th
at p. 719)—that is, a “substantial risk . . . [of] serious physical
harm inflicted nonaccidentally.” (§ 300, subd. (a).) Juvenile court
jurisdiction under section 300, subdivision (b) exists when, inter
alia, the court finds by a preponderance of the evidence that
“there is a substantial risk that the child will suffer[] serious
physical harm or illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or protect
the child.” (§ 300, subd. (b)(1).)
Even after DCFS makes either showing and the juvenile
court determines jurisdiction is proper, in order to remove a child
from a parent, DCFS must prove by clear and convincing
evidence that, at the time of the dispositional hearing, “a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor” exists, and that
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 . . . physical custody.” (§ 361, subd. (c)(1); see In
re Ashly F. (2014) 225 Cal.App.4th 803, 809 (Ashly F.) [“Even
though children may be dependents of the juvenile court, they
shall not be removed . . . unless there is clear and convincing
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evidence of a substantial danger to the child’s physical health,
safety, protection, or physical or emotional well-being and there
are no “reasonable means” by which the child can be protected
without removal”].)
“ ‘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.” [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.” ’ ” (In re
I.J. (2013) 56 Cal.4th 766, 773.) In reviewing for substantial
evidence to support a dispositional order removing a child, we
“keep[] in mind that the [juvenile] court was required to make its
order based on the higher standard of clear and convincing
evidence.” (Ashly F., supra, 225 Cal.App.4th at p. 809;
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
C. Sufficiency of the Evidence to Support
Jurisdictional and Dispositional Orders
The history of domestic violence between mother and father
that DCFS outlined for the juvenile court spanned for the entire
duration of their marriage. Mother and father were married in
2015. That same year, mother stabbed father and was arrested
for domestic violence and resisting an executive officer. She
completed a 52-week domestic violence course as part of her
sentence. Nevertheless, violence persisted between mother and
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father. When police responded to the domestic violence call at
the parents’ home on February 1, 2020, the responding officers
located records of an additional three domestic violence incidents
between the couple. DCFS provided the juvenile court with
evidence that father had received a criminal protective order—
later modified to be a peaceful contact order—to protect against
mother. And it appears on the face of the record that mother had
also received a domestic violence court order against father at
some point: “In January 2019[,] father was charged with
violating a court order to prevent domestic violence.”
DCFS’s investigation revealed that the parents had their
violent altercations in the presence of the children. Although
their testimony differs as to the timing of his presence, both
father and Nathan reported that Nathan was present during
different times of the parents’ fight on February 1, 2020. The
parents’ fights were pervasive enough that the paternal
grandmother and grandfather worried for the children’s
wellbeing.
Mother relies heavily on her participation in services after
the juvenile court detained the children as evidence that
jurisdiction and disposition are inappropriate. While we need not
consider evidence that does not support the juvenile court’s
orders, we reject mother’s contention. Mother had the benefit of
a 52-week domestic violence course resulting from her stabbing
father in 2015. Additionally, a LBPD officer who assisted DCFS
in serving an investigative warrant stated that he, too, had
counseled mother about the harm and problems with domestic
violence. Domestic violence in the presence of the children
persisted. Moreover, mother refused to cooperate in any way
with DCFS—even going so far as to instruct her child to not open
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the door for police serving an investigative warrant—before the
children were detained. After the detention hearing, mother
became more cooperative, even admitting that she had lied to
police on the night of February 1, 2020 about the source of the
scratches on her neck. Mother’s conduct throughout DCFS’s
investigation and her cooperation in the months following the
detention hearing do not imply the absence of evidence
supporting the juvenile court’s jurisdictional findings and
disposition.
Nor are the juvenile court’s findings the product of
speculation simply because DCFS has not identified exactly how
the children could be injured in another of mother and father’s
serial domestic violence incidents, particularly given that several
of them involved severe forms of violence (such as stabbing and
pushing someone down stairs).
This record provides substantial evidence to support both
(1) the court’s jurisdictional finding by a preponderance of the
evidence that, at the time of the jurisdictional hearing, the
parents’ ongoing domestic violence issues created a substantial
risk that the children would suffer physical harm under section
300, subdivisions (a) and (b), and (2) the court’s finding by clear
and convincing evidence that, at the time of the dispositional
hearing, returning the children to mother’s custody posed a risk
of substantial danger to them.
Finally, substantial evidence supports that there existed no
reasonable means of protecting the children other than removing
them from mother. As we outline above, the record contains
evidence that mother failed—over the course of many years—to
comply with court-ordered restrictions and refrain from domestic
violence with father, as well as evidence that completing a
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domestic violence training program did not stop her domestic
violence with father, and that mother was initially evasive and
uncooperative with DCFS. The court could reasonably infer from
this record that a combination of services and monitoring that
might, under different circumstances, provide a viable alternative
to removal, would not sufficiently protect the children in this
case.
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are
affirmed.
CERTIFIED FOR PUBLICATION
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J. *
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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