In re M.I. CA2/2

Filed 3/24/22 In re M.I. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re M.I. et al., Persons B314906
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 21CCJP01315A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOSE I.,
Defendant and Appellant.
APPEAL from the orders of the Superior Court of Los
Angeles County. Martha Matthews, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
******
Jose I. (father) appeals the juvenile court’s orders exerting
jurisdiction over his two young children and removing them from
his custody. Because the juvenile court’s orders are supported by
substantial evidence, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and Elizabeth M. (mother) met in 2014 when
mother was 15 years old. They are not married, but have been a
couple since 2016.
Their relationship is tumultuous. Father is possessive of
mother and engages in conduct aimed at controlling her: He
worries when mother leaves the apartment they share without
telling him where she is going, suspects mother is lying to him
about her destinations, and sometimes takes mother’s keys or her
cell phone away from her to prevent her from leaving. He would
get upset when mother was “disobedient” to him.
Mother and father had their first child, M.I., in December
2018.
In February 2020, father got physical with mother. While
they were doing laundry, and while M.I. was with them, father
pushed mother to the ground, causing her to cut her lip. Father
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then grabbed M.I. and fled the scene with him. Father was
arrested, and M.I. was recovered. Father pled no contest to
misdemeanor battery and was placed on three years of probation,
including a requirement that he attend a 52-week domestic
violence course.
Father defiantly refused to enroll in the domestic violence
course, proclaiming that—despite his plea—he “did not believe
there was any domestic violence between himself and mother.”
When father violated a court order to appear in criminal court to
show proof of his enrollment, the court issued a bench warrant
for father’s arrest.
Mother gave birth to their second child, J.I., in March 2021.
Mother and J.I. tested positive for amphetamines at the time of
the birth.
II. Procedural Background
In March 2021, the Los Angeles Department of Children
and Family Services (the Department) filed a petition asking the
juvenile court to exert dependency jurisdiction over M.I. and J.I.
As pertinent here, the Department alleged that dependency
jurisdiction was warranted under Welfare and Institutions Code
section 300,1 subdivision (b) due to (1) the domestic violence
between father and mother, (2) the positive drug result for
mother and J.I. at the time of J.I.’s birth, and (3) mother’s history
of drug abuse—all of which placed the children at “substantial
risk” of “serious physical harm.”2
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 The Department also alleged that jurisdiction was
warranted (1) under section (b) of section 300 due to (a) father’s
abuse of marijuana and (b) mother’s sister’s use of
3
When interviewed by the Department, mother seemed to
“cover” for father. She claimed he never uses marijuana while
father freely admitted using marijuana in the evenings while he
is at home. More troubling is the fact mother minimized father’s
domestic violence claiming “[i]t wasn’t that bad.” She reported
that her injury in February 2020 involved nothing more than
father “pull[ing]” on her, at which point she “fell back onto the
ground” and suffered an injury so minor she did not even realize
she was bleeding. And she also reported that father had
completed the entire 52-week domestic violence course.
When interviewed by the Department, father issued angry
threats. In March 2021, father cursed at a Department social
worker and told her he was not going to talk to any judge about
custody of his children. The following month he told another
Department social worker that she should stay away from his
children “so I don’t have to get involved with yours.”
In mid-2021, father enrolled in parenting and domestic
violence classes at the Department’s request.
The juvenile court held a combined jurisdictional and
dispositional hearing in August 2021. The court sustained
jurisdiction. In sustaining the domestic violence allegation, the
court acknowledged that the February 2020 incident was “over a
year ago” and that father was “taking a class.” But the court
found that the risk of domestic violence—and hence the risk of
physical harm to the children—was still high: Specifically, the
methamphetamine (because she lived with the family), and (2)
under subdivision (a) due to the domestic violence. The juvenile
court did not sustain these allegations, so we will not discuss
them further.
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court found that father has engaged in a “pattern” of using anger
and intimidation to control mother, that this pattern of
“unhealthy and unsafe behavior” in their relationship is a type of
domestic violence even though it has “fortunately” flared into
“hitting” only once, and that father’s pattern “hasn’t changed” in
light of his refusal to take his criminal court-ordered domestic
violence classes and the fact that the parents still have “a lot of
drama” in their relationship. Based on the same findings, the
court also removed the children from father’s custody and ordered
the Department to provide reunification services to both parents.
Father filed a timely notice of appeal.
DISCUSSION
Father argues that the juvenile court’s exertion of
dependency jurisdiction based upon father’s domestic violence is
unsupported by substantial evidence, such that this basis for
jurisdiction must be vacated, and that father—as a nonoffending
parent—should be given custody of M.I. and J.I.3 Because father
levels no further attack on the court’s removal order, this appeal
turns on whether there is substantial evidence to support the
domestic violence finding.
Among other grounds, a juvenile court may exert
dependency jurisdiction over a child if “[t]he 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 or inability of
3 Although the juvenile court’s dependency jurisdiction over
M.I. and J.I. is also supported by the wholly separate allegations
regarding mother’s drug use, we nevertheless exercise our
discretion to entertain father’s appeal because the viability of the
domestic violence allegation is what determines whether father is
an offending or nonoffending parent. (See In re Quentin H.
(2014) 230 Cal.App.4th 608, 613.)
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the child’s parent . . . to adequately supervise or protect the
child.” (§ 300, subd. (b)(1).) Exposing a child to domestic violence
can constitute a failure to protect a child from the risk of serious
physical injury under this provision. (In re Heather A. (1996) 52
Cal.App.4th 183, 194.) Because dependency jurisdiction turns on
the risk to the child “‘“at the time of the [jurisdictional] hearing”’”
(In re M.M. (2015) 240 Cal.App.4th 703, 719 (M.M.)), the
propriety of jurisdiction due to a child’s exposure to domestic
violence turns on whether “the violence is ongoing or likely to
continue.” (In re Daisy H. (2011) 192 Cal.App.4th 713, 717; In re
M.W. (2015) 238 Cal.App.4th 1444, 1453.) We review the juvenile
court’s factual findings regarding risk, like all of its factual
findings, for substantial evidence. (M.M., at pp. 719-720.) This
means we review the evidence in the light most favorable to the
juvenile court’s findings. (In re Kadence P. (2015) 241
Cal.App.4th 1376, 1384, superseded by statute on other grounds
as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.)
The juvenile court’s finding that, as of the date of the
jurisdictional hearing, the domestic violence between father and
mother was likely to continue (thereby continuing to pose a
substantial risk of serious physical harm to M. I. and J. I.) was
supported by substantial evidence. As recently as the month
before the jurisdictional hearing, father was still attempting to
control mother by taking away her means of leaving their
dwelling (that is, taking her keys and her cell phone). He was
also criticizing her for being “disobedient.” “[A] ‘“power and
control” dynamic . . . is often at the core of domestic violence.”’
(Ashby v. Ashby (2021) 68 Cal.App.5th 491, 506.) Indeed, as our
Legislature noted in enacting Evidence Code section 1109, that
dynamic—once it exists—continues to exist unless addressed,
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even if it does not always flare up into violence: “[T]here [is] a
great likelihood that any one battering episode is part of a larger
scheme of dominance and control . . . .” (People v. Quintanilla
(2020) 45 Cal.App.5th 1039, 1058.) Here, there is ample evidence
that father has anger management, control, and dominance
issues, which form the basis of a relationship floundering on the
rocks of domestic violence. What is more, father’s steadfast—
and, indeed, strident—refusal to acknowledge or address his
issues only adds to the risk that the domestic violence cycle will
continue and once again flare into physical violence. (In re
Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [“denial is a
factor often relevant to determining whether persons are likely to
modify their behavior in the future without court supervision”].)
Father’s enrollment in some classes is a first step, but at the time
of the jurisdictional hearing, he had yet to complete any program.
Father raises three arguments in response.
First, father argues that there is no longer any risk to the
children because this case involved a single incident of domestic
violence 18 months prior to the jurisdictional hearing, and where
he only injured mother—but not the children. This argument
ignores that risk of additional flare ups into violence still exists in
light of father’s continued efforts to control and dominate mother
(cf. In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [sole domestic
violence issue seven years before dependency petition was filed
when children not present; no current risk]), and ignores that a
juvenile court need not wait until a child is physically injured to
intervene where, as here, the risk of such injury is established (In
re Kadence P., supra, 241 Cal.App.4th at p. 1383; In re Yolanda
L. (2017) 7 Cal.App.5th 987, 993).
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Second, father argues that the juvenile court’s ruling is
impermissibly based on a view of what a proper “parenting style”
is, as was prohibited in David B. v. Superior Court (2004) 123
Cal.App.4th 768, 789. We disagree. Unlike David B., the
juvenile court was not exerting jurisdiction because father did not
satisfy the court’s subjective view of what constituted “ideal”
parenting skill. Instead, the court here exerted jurisdiction
because father’s conduct was a textbook case of conduct in the
midst of a domestic violence cycle that, if unaddressed, was likely
to result in further violence toward mother and, given father’s
willingness to attack mother with the children around, a
substantial risk of serious physical harm to the children.
Lastly, father argues that In re Isabella F. (2014) 226
Cal.App.4th 128 (Isabella F.) dictates a different result. Again,
we disagree. In Isabella, the court ruled that dependency
jurisdiction was not warranted when a mother got into a physical
fight with her teenage daughter on one occasion, and thereafter
made efforts to address the underlying causes for their
relationship difficulties. (Id. at pp. 131-135.) This is a very
different case. It does not involve a parent’s attempts to scold a
child, but rather father’s attempt to control and dominate his
romantic partner as part of a pattern of domestic violence that
the father has thus far chosen not to acknowledge or address.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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