In re L.U. CA2/8

Filed 7/16/21 In re L.U. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re L.U., a Person Coming Under B306908
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP02077)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.H.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County. Marguerite Downing, Judge. Affirmed.
Nancy R. Brucker for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
_______________________
The juvenile court asserted jurisdiction over minor L.U.
and removed him from his parents’ custody after finding the
parents engaged in numerous violent altercations. On appeal,
L.U.’s father contends there is insufficient evidence to support
the jurisdictional findings and removal orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2020, the Los Angeles County Department of
Children and Family Services (DCFS) received a report that
L.U.’s mother (Mother) called police after the child’s father
(Father) hit her five times. According to the reporter, L.U., who
was one year old at the time, was sleeping but woke up during
the incident.
During its investigation, DCFS discovered that Mother had
previously made several other reports of domestic violence to law
enforcement. In August 2019, Mother called 911 and said Father
was assaulting her and L.U. The 911 operator heard a struggle
and a woman yelling, and then the call disconnected.
An officer who responded to the call described Mother as
scared, crying, and nervous. Father was not there. Mother was
uncooperative and told the officers that Father became upset but
was not violent. The officers did not see any visible injuries on
Mother. DCFS opened an investigation, but Mother was
uncooperative and DCFS closed the referral as inconclusive.
In October 2019, Mother called police and reported that
Father had physically assaulted her, and then the line
disconnected. Mother and Father were gone when police arrived
at their home. A neighbor told police there was no disturbance.
In December 2019, Mother again called police and reported
Father physically assaulted her, and then the line disconnected.
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When officers arrived at the home, Father was gone. The officers
noted there was “no crime,” only a “dispute.”
Sometime around March 13, 2020, Mother went into a
police station and reported that Father “got angry” and hit her 10
times. The officer who took the report described Mother as
“hysterical.” The officer did not see any marks or bruises on
Mother or L.U. He called an ambulance for Mother, but she
refused to go to a hospital.
L.U.’s maternal grandmother (Grandmother)—who had
custody of Mother and Father’s other child—told DCFS that the
child’s parents had a “horrible” and “violent” relationship.
Grandmother showed DCFS text messages from March 11, 2020,
in which Mother claimed she was in pain because Father “socked”
her in the face. According to Grandmother, Mother previously
told her that Father had assaulted her.
Mother and Father acknowledged having verbal
arguments, but they denied any domestic violence. They told
DCFS that L.U. was in the home when they argued.
According to Mother, she would call law enforcement to
scare Father when he became verbally aggressive toward her.
She claimed she went to the police station after she had an
argument with Father and accidentally locked herself out of her
home while taking out the trash. Mother acknowledged sending
the text messages to Grandmother, but she insisted Father never
hit her.
Although Mother and Father denied domestic violence,
they agreed to abide by a safety plan requiring they live in
separate homes. In July 2020, however, Father told DCFS that
he and Mother were still in a relationship and had recently
started living together. Mother denied living with Father, but
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said she intended to resume a romantic relationship with him in
the future. Neither Father nor Mother enrolled in any services.
DCFS filed a petition asserting L.U. is a person described
by Welfare and Institutions Code section 300.1 The petition
alleged two counts, one under subdivision (a) and one under
subdivision (b)(1). The substantive allegations were the same for
each count: Mother and Father “have a history of domestic
violence and of engaging in violent altercations. On or about
03/16/2020, the father repeatedly struck the mother. On or about
03/11/2020, the father struck the mother’s face with the father’s
closed fist, inflicting pain to the mother’s face. . . . Such violent
conduct on the part of the father against the mother and the
mother’s failure to protect the child endanger the child’s physical
and emotional health and safety and place the child at risk of
serious physical and emotional harm, damage, danger, and
failure to protect.”
The juvenile court removed L.U. from his parents’ custody,
and DCFS placed the child with Grandmother. According to
Grandmother, L.U. was dirty and reeked of smoke when he first
came to live with her.
The juvenile court held a combined jurisdiction and
disposition hearing on July 27, 2020. The court sustained the
petition, declared L.U. a dependent of the court, and removed
him from his parents’ custody. The court found the evidence
showed multiple instances of domestic violence and a cycle of
abuse, and the parents were not credible. The court further
noted that Mother and Father were in denial about the domestic
violence, and neither had enrolled in services.
1 All future undesignated statutory references are to the
Welfare and Institutions Code.
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Father appealed.
DISCUSSION
I. Substantial Evidence Supports the Jurisdictional
Findings
Father contends there is insufficient evidence to support
the juvenile court’s jurisdictional findings under section 300,
subdivision (b)(1). We disagree.
“ ‘In reviewing the jurisdictional findings . . . , we look to
see if substantial evidence, contradicted or uncontradicted,
supports them. [Citation.] In making this determination, we
draw all reasonable inferences from the evidence to support the
findings . . . of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.’ ” (In re R.T. (2017) 3 Cal.5th 622, 633.)
Under section 300, subdivision (b)(1), the juvenile court
may exercise jurisdiction over a child when the child “has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness” as a result of the failure of his or
her parent to “adequately supervise or protect the child.” (§ 300,
subd. (b)(1).) It is well established that exposure to domestic
violence may serve as the basis of a jurisdictional finding under
section 300, subdivision (b)(1). (See In re R.C. (2012) 210
Cal.App.4th 930, 941; In re Daisy H. (2011) 192 Cal.App.4th 713,
717; In re E.B. (2010) 184 Cal.App.4th 568, 576, disapproved on
other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989,
1003, fn. 4.) “Although ‘the question under section 300 is
whether circumstances at the time of the hearing subject the
minor to the defined risk of harm’ [citation], the court may
nevertheless consider past events when determining whether a
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child presently needs the juvenile court’s protection. [Citations.]
A parent’s past conduct is a good predictor of future behavior.”
(In re T.V. (2013) 217 Cal.App.4th 126, 133, italics omitted.)
Here, there is substantial evidence that L.U. was exposed
to several incidents of domestic violence, which is sufficient to
support jurisdiction under section 300, subdivision (b)(1).
The record shows that, since L.U.’s birth, Mother reported to law
enforcement four separate incidents of domestic violence with
Father. In the most recent report, Mother accused Father of
becoming angry and hitting her 10 times. Mother also told
Grandmother she was in pain after Father “socked” her in the
face, and Father had previously physically attacked her.
The evidence further indicates L.U. was in the home during the
altercations, which placed him at substantial risk of physical
harm. (See In re V.L. (2020) 54 Cal.App.5th 147, 156 [a cycle of
violence between parents constitutes a failure to protect the child
from the substantial risk of encountering the violence and
suffering serious physical harm from it].)
Although Mother subsequently denied any domestic
violence with Father, the juvenile court could reasonably
conclude her recantations, both to law enforcement and DCFS,
were not credible. Mother insisted she fabricated her reports of
domestic violence in order to scare Father when he became
verbally aggressive. While this might explain her phone calls to
police, it does not explain her text messages to Grandmother or
her decision to file an in-person police report. Mother failed to
provide any plausible explanation for either of those. On this
record, the juvenile court could reasonably find Mother’s initial
reports were truthful, and her recantations fabricated.
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There is also ample evidence from which the juvenile court
could conclude it is likely L.U. will be exposed to future incidents
of domestic violence between his parents. Mother and Father
indicated they intended to remain in a relationship, and Father
reported they were living together as of July 2020. Moreover,
both Mother and Father continued to be in denial about the
numerous incidents of domestic violence, and neither had
participated in services to address their issues. The court could
have reasonably concluded that, until Mother and Father
acknowledge and address Father’s past domestic violence, it is
likely to recur. (See In re Gabriel K. (2012) 203 Cal.App.4th 188,
197 [“One cannot correct a problem one fails to acknowledge.”];
In re V.L., supra, 54 Cal.App.5th at p. 156 [“A parent’s denial of
domestic violence increases the risk of it recurring.”].)
Father insists the record shows there was no domestic
violence between him and Mother. In support, he points out that
Mother did not have visible bruises or injuries, he was never
charged with a crime, DCFS closed an earlier referral as
inconclusive, and both parents repeatedly denied any domestic
violence. Such evidence might support a finding that there was
no domestic violence, but does not compel it. Father’s arguments,
therefore, are nothing more than thinly-veiled attempts to have
us reweigh the evidence and exercise our independent judgment,
which we decline to do on appeal. (See In re Yolanda L. (2017)
7 Cal.App.5th 987, 992 [“Issues of fact and credibility are the
province of the juvenile court and we neither reweigh the
evidence nor exercise our independent judgment.”].)2
2 Because there is sufficient evidence to support jurisdiction
under section 300, subdivision (b)(1), we need not consider
Father’s argument that insufficient evidence supports
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II. Substantial Evidence Supports the Removal Orders
Father contends there is insufficient evidence to support
the juvenile court’s orders removing L.U. from his and Mother’s
custody. We disagree.
Initially, we reject DCFS’s contention that Father lacks
standing to appeal the order removing L.U. from Mother’s
custody. In re R.V. (2012) 208 Cal.App.4th 837, is instructive.
In that case, the court found a father had standing to challenge
an order removing his child from the mother’s custody and
placing the child in foster care. The court explained that, until
parental rights are terminated, a parent maintains a
fundamental interest in a child’s companionship, custody,
management, and care. Because an out-of-home placement could
affect the father’s own interest in reunifying with the child, the
father had standing to challenge the order removing custody from
the mother. (Id. at p. 849.) The same is true here.
Turning to the merits, under section 361, subdivision (c)(1),
“[a] dependent child may 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 . . . [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
jurisdiction under section 300, subdivision (a). (In re Ashley B.
(2011) 202 Cal.App.4th 968, 979 [“As long as there is one
unassailable jurisdictional finding, it is immaterial that another
might be inappropriate.”].)
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from the minor’s parent’s . . . physical custody.” Before removing
a child from a parent, the juvenile court must also determine
“whether reasonable efforts were made to prevent or to eliminate
the need for removal of the minor from his or her home . . . .”
(§ 361, subd. (e).)
“ ‘A removal order is proper if based on proof of a parental
inability to provide proper care for the child and proof of a
potential detriment to the child if he or she remains with the
parent. [Citation.] “The 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.” [Citation.] The court may consider a parent’s past
conduct as well as present circumstances.’ [Citation.]” (In re A.S.
(2011) 202 Cal.App.4th 237, 247, disapproved on other grounds
by Conservatorship of O.B., supra, 9 Cal.5th at p. 1003, fn. 4.)
“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. [Citation.]” (In re Ashly F. (2014) 225 Cal.App.4th 803,
809.)
Here, there is substantial evidence supporting the juvenile
court’s orders removing L.U. from Father’s and Mother’s custody.
As discussed above, the record shows that Father physically
assaulted Mother on numerous occasions while L.U. was in the
home, which placed the child at risk of harm. Father and Mother
then refused to participate in services or even acknowledge the
domestic violence took place. Moreover, although Father and
Mother initially agreed to live apart, in July 2020—less than a
month before the disposition hearing—Father told DCFS he and
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Mother resumed living together. The juvenile court could have
reasonably concluded the parents’ unresolved domestic violence
issues would pose a substantial risk to L.U.’s physical safety and
well-being absent removal, especially considering the child’s
tender age and the frequency of the prior domestic violence.
(See In re T.V., supra, 217 Cal.App.4th at p. 133 [“A parent’s past
conduct is a good predictor of future behavior.”]; In re Gabriel K.,
supra, 203 Cal.App.4th at p. 197.)
DISPOSITION
We affirm the jurisdictional findings and dispositional
orders.
OHTA, J. *
We Concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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