Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK73395 D. Zeke Zeidler, Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louis, Principal Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
In this dependency appeal, Irene R. (mother) challenges the juvenile court’s orders (1) continuing her son, Pedro M. (born September 2007), in suitable placement at a 12-month review hearing, and (2) sustaining the Welfare and Institutions Code section 300 petition as to her other son, L.M. (born March 2009), and thereafter removing L. from mother’s physical custody. We find substantial evidence supports the juvenile court’s orders and affirm.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL SUMMARY
In June of 2008, the Department of Children and Family Services (DCFS) filed a dependency petition on behalf of then nine-month-old Pedro due to domestic violence between mother and father. The amended petition (as subsequently sustained) alleged as follows: “[Mother] has a history of illicit drug use and is a current user of methamphetamine which periodically interferes with her ability to provide regular care and supervision of the child, thereby, placing the child’s physical and emotional health and safety at risk of harm. [¶] The child’s [father] and mother have a history of domestic violence which consists of father breaking the door of mother’s bedroom. Such violent conduct on the part of the father against the mother places the child at risk of harm.”
Father is not a party to this appeal.
In August of 2008, Pedro’s dependency petition was adjudicated pursuant to a mediated agreement signed by the parents. In the mediated agreement, mother specifically agreed, in pertinent part, to a case plan which included “individual counseling to address case issues including conflict management and domestic violence.”
The court declared Pedro a dependent of the court, removed custody of the child from the parents, and ordered him suitably placed. The court ordered family reunification services and, as reflected in the mediated agreement, ordered mother to “attend and complete DCFS-approved programs of parenting education, drug rehabilitation with weekly, random, and on-demand testing, and individual counseling to address case issues, including conflict management and domestic violence.” The court also ordered DCFS to provide mother with referrals, including referrals for an in-patient program, and ordered the parents to have monitored visits, with DCFS having the discretion to liberalize the visits.
In July of 2009, DCFS filed another dependency petition on behalf of Pedro’s younger sibling, L., due to domestic violence between the parents. The amended petition (as subsequently sustained) found as follows: “[Mother and father] have a 4 year history of domestic violence with further incidents occurring on 7/31/09, and on a prior occasion in 2009. Further, the child’s sibling... is a current dependent of the Juvenile Court due to the parents’ domestic violence, which endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm, damage, danger and failure to protect.”
Culminating on October 9, 2009, combined contested hearings ensued for the contested section 366.21, subdivision (f) hearing for Pedro, and the adjudication and disposition hearing for L. The juvenile court admitted into evidence several DCFS reports, the mediation agreement, and the results of mother’s drug tests. The court also heard testimony from the initial social worker assigned to the case, a counselor at a program in which mother had participated, and mother.
At the conclusion of the combined hearings, the juvenile court found by a preponderance of the evidence that continued jurisdiction over Pedro (who was in suitable placement with his foster mother) was necessary because there was a substantial risk of detriment to his physical and emotional well-being if he were returned to mother’s care. The court emphasized mother’s failure to complete domestic violence counseling, as originally ordered by the court, which it believed was necessary. The court further found that reasonable reunification services had not been provided for mother, because DCFS had not provided mother with appropriate individual counseling or domestic violence counseling. The court found that mother was in partial compliance with the case plan, and that there was a substantial probability that Pedro could be returned to mother’s care by December 14, 2009.
Thus, the juvenile court modified the original case plan as to Pedro to include a 52-week domestic violence counseling program for both mother and father, as well as individual counseling, preferably with a licensed therapist, so that mother could address case issues. The court found that mother had completed the drug counseling portion of the case, and it ordered that she be in after-care with a sponsor and continue with drug testing. DCFS was given discretion to discontinue or reduce mother’s random and on-demand drug testing. The court also ordered monitored visits with Pedro by mother and granted DCFS discretion to extend the visitation, and it continued the case as to Pedro to December 14, 2009, for a section 366.22 hearing.
Regarding the adjudication portion of the October 9, 2009, hearing for L., as previously noted, the juvenile court sustained amended allegations in the section 300 petition. Regarding L.’s disposition, counsel for DCFS urged the court not to offer reunification services to mother. Both counsel for mother and counsel for the child asked that L. be returned to mother’s custody or, alternatively, be offered reunification services and unmonitored overnight visits.
The juvenile court declared L. a dependent of the court and found by clear and convincing evidence that there was a substantial danger to L.’s physical and/or emotional well being, and that there was no reasonable means to protect the child without removing him from the parents’ custody. The court ordered L. suitably placed and emphasized that mother needed to participate in additional domestic violence counseling. The court also found that reasonable efforts had been made by DCFS to eliminate or prevent the need for removal. The court ordered DCFS to provide reunification services for mother and ordered the same modified case plan it had ordered as to Pedro. The modified case plan required, in pertinent part, mother’s participation in individual domestic violence counseling and a 52-week domestic violence program. Mother was permitted monitored visits, with DCFS having discretion to liberalize the visits.
The juvenile court scheduled a progress hearing for December 14, 2009. The court also scheduled a six-month review hearing (§ 366.21, subd. (e)) for February 24, 2009, followed by a 12-month review hearing (§ 366.21, subd. (f)) for August 20, 2010, and then an 18-month permanency review hearing (§ 366.22, subd. (a)) for January 10, 2011.
Mother appeals.
DISCUSSION
I. Substantial evidence supports the juvenile court’s finding of a substantial risk of detriment to Pedro if he were returned to mother’s custody.
Mother contends that the juvenile court erred at the hearing, on October 9, 2009, when it found a substantial risk of detriment to Pedro’s physical or emotional well-being if Pedro were returned to mother’s custody. Specifically, mother urges that she had substantially resolved the two primary reasons for Pedro’s detention, mother’s substance abuse and the domestic violence. We find the contention unavailing.
Section 366.21, subdivision (f), provides, in pertinent part, as follows: “The court shall order the return of the child to the physical custody of his or her parent... unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.... The failure of the parent... to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (Italics added.)
The juvenile court’s finding that return of the child to the parent’s custody would entail a substantial risk of detriment to the child is reviewed for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763-764.) “When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.” (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465; see In re David M. (2005) 134 Cal.App.4th 822, 828.) “‘[T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the [determination of the trier of fact]. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trier of fact.’” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
Here, as mother aptly acknowledges, “The court’s detriment finding for Pedro was based on the court’s view there was still a risk of harm because mother had not completed domestic violence counseling as originally ordered at disposition and mother needed to do that.” Indeed, pursuant to the terms of both the mediated agreement and the August 2008 court order, mother was required to “attend and complete DCFS-approved programs of parenting education, drug rehabilitation with weekly, random, and on-demand testing, and individual counseling to address the case issues, including conflict management and domestic violence.” (Italics added.) Mother does not deny the appropriateness of the court-ordered requirement of a program of individual counseling.
Mother, however, failed to participate in a program of individual counseling to address conflict management and domestic violence. Significantly, section 366.21, subdivision (f), specifically provides that, “The failure of the parent... to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” Even though the juvenile court found that mother’s failure to participate in counseling was the fault of DCFS, the detriment to the child was the focus of the juvenile court, as it is the focus of this court as well. The best interest of the child is ultimately determinative, not the assignment of fault.
Pursuant to statutory mandate, mother’s failure to participate in counseling to treat the significant issues of conflict management and domestic violence was “prima facie evidence that return [of the child to her custody] would be detrimental.” (§ 366.21, subd. (f).) Hence, contrary to mother’s contention, there was more than mere speculation of substantial detriment to the child—there was substantial evidence based on a reasonable inference from the facts to support the juvenile court’s finding of detriment.
Mother focuses on the fact that she had obtained a restraining order against father, and that the DCFS social worker opined that the risk to the children was “low” if they were returned to mother’s care because father was not at that time residing at the home. Mother also notes that she had satisfied the drug counseling component of her case plan (though the court ordered her to continue with drug testing). Those are positive and commendable factors.
Nonetheless, apart from father’s history of at least seven prior incidents of physical abuse of mother, the failure of mother to address conflict management and domestic violence issues with the required individual counseling program constitutes prima facie evidence of detriment to the child. We find the statutory presumption of prima facie evidence of detriment (see Evid. Code, § 602) not sufficiently rebutted by the evidence.
Accordingly, substantial evidence supports the juvenile court’s finding of substantial risk of detriment.
II. Substantial evidence supports the juvenile court’s order sustaining the domestic violence allegations in the petition as to L., under section 300, subdivisions (a) and (b).
In accordance with the customary standard of appellate review, we review the juvenile court’s jurisdiction and disposition findings for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649, 1654.) We assess the entire record in the light most favorable to the findings and conclusions of the juvenile court, deferring to that court on issues of witness credibility. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) The juvenile court’s order must be upheld if there is any substantial evidence, contradicted or not, which supports its order, resolving all conflicts in support of its determination and indulging all legitimate inferences in favor of the order. (In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Eric B. (1987) 189 Cal.App.3d 996, 1004-1005.)
Pursuant to the language of section 300, subdivision (a), the juvenile court may adjudge a child a dependent where 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. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or combination of these and other actions by the parent or guardian which indicate the child is at risk of serious harm....” Section 300, subdivision (b), in pertinent part, authorizes dependency jurisdiction where there is a substantial risk the child will suffer serious physical harm “as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, ” or the parent’s “willful or negligent failure” to adequately supervise or protect the child from the conduct of someone with whom the child was left. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
The parent complaining about the dependency order “has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) “‘“‘In brief, the appellate court ordinarily looks only at the evidence supporting the successful part, and disregards the contrary showing.’”’” (See In re I.W. (2009) 180 Cal.App.4th 1517, 1526.)
In the present case, mother asserts that DCFS inappropriately focuses on certain isolated and questionable facts regarding mother’s history with father to support the jurisdictional findings as to L. Mother, for example, complains about DCFS’s failure to focus on the restraining order against father, and the social worker’s opinion of the low risk of detriment to L. if he were returned to mother’s custody. Mother also disputes DCFS’s interpretation of certain evidence, such as whether prior to July 2, 2009, father had engaged in acts of physical violence, or whether father had only engaged in verbal arguments with mother.
Moreover, according to mother, DCFS overlooks “whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) We acknowledge that although “evidence of past conduct may be probative of current conditions, ” there “‘must be some reason to believe the acts may continue in the future.’” (Ibid.) Here, the reason to believe there is a future risk of detriment is the fact that, as previously discussed, mother did not obtain the benefit of a program of individual counseling to address the critical case issues of conflict management and domestic violence.
Hence, the more than seven prior acts of domestic violence in the household do not constitute the only factor. The uncontested emotional and physical violence perpetrated on mother—including while the children were present—coupled with the fact that mother did not address the matter with a program of individual counseling, constitutes substantial evidence supporting the juvenile court’s jurisdiction order as to L.
III. Substantial evidence supports the juvenile court’s disposition order removing L. from mother’s custody.
Finally, contrary to mother’s contention, the juvenile court’s disposition order removing L. from mother’s custody is supported by substantial evidence. Nor was return to mother’s custody warranted by purported reasonable alternatives to removal. (See § 361, subd. (c)(1).)
Pursuant to section 361, subdivision (c)(1), the juvenile court may remove physical custody of the child from the parent if it finds by clear and convincing evidence that there is substantial danger to the physical health, safety, protection, or emotional well-being of the child, or that there would be if the child were returned home, and further finds there is no reasonable means to protect the child without removal from the parent’s physical custody. In fashioning its disposition order, the juvenile court “has broad discretion to make virtually any order deemed necessary for the well-being of the child....” (In re Sergio C. (1999) 70 Cal.App.4th 957, 960.)
The standard of clear and convincing evidence is “for the edification and guidance of the [juvenile] court and not a standard for appellate review.” (In re I.W., supra, 180 Cal.App.4th at p. 1525.) On appeal, the issue of whether the child will suffer a substantial risk of detriment if returned to the parent is analyzed under the substantial evidence test. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
In the present case, services in the home without removing L. had already been attempted. A Voluntary Family Maintenance (VFM) agreement had already been attempted. Soon after L.’s birth, in April of 2009, mother and father signed a VFM agreement with DCFS whereby they specifically agreed to continue complying with all court orders and in the case plan. However, even with appropriate services in place, the domestic violence continued, culminating in the altercations in early July and resulting in mother’s fleeing the home with the children as father chased after them. It was thus apparent that not until mother participated in the required domestic violence counseling, which had not occurred, could she adequately learn how to protect herself and her children from further harm.
Mother’s reliance on In re Steve W. (1990) 217 Cal.App.3d 10, is misplaced. The court in that case explained that the decision to remove a child from a parent at the disposition hearing in a matter involving domestic violence must be based on substantial evidence, and not on speculation about a new relationship in the future with yet another abusive man. (Id. at p. 22-23.) In In re Steve W., the father was convicted of felony child abuse and was no longer in the home due to his incarceration. The mother had cooperated in prosecuting him, and at the time of the disposition hearing she was living alone and had started counseling. (Id. at pp. 15, 22.) We acknowledge that in the present case, mother ultimately got a restraining order against her abuser, and he was then no longer in the home. In contrast to the situation in In re Steve W., however, mother, here, had married the father after he started the physical abuse, and she did not yet have the benefit of the necessary individual counseling for domestic violence.
Accordingly, In re Steve W. is readily distinguishable, and a reversal of the disposition order is not warranted.
DISPOSITION
The orders under review are affirmed.
We concur: DOI TODD, J.CHAVEZ, J.