Opinion
B307791
10-26-2021
In re S.A., a Person Coming Under the Juvenile Court Law. v. D.A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Appeal, for Defendant and Appellant. Rodrigo A. Castro Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Nos. 20CCJP03282, 20CCJP03282A Martha A. Matthews, Judge. Affirmed. Mansi H. Thakkar, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
Father D.A. appeals from the juvenile court's dispositional orders removing his nine-year-old daughter, S., from his custody pursuant to Welfare and Institutions Code section 361, subdivision (c). He challenges the sufficiency of the evidence to support the court's finding that S.'s removal from his custody was necessary to prevent substantial danger to the child. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
I. Prior Petition
Father and mother, S.B., have one child together, S., born in 2011. On March 25, 2016, the juvenile court sustained a petition alleging that in February 2016, mother drove in a vehicle with S. while mother was under the influence of alcohol. Mother's vehicle collided with three other vehicles and flipped over. S. was not in safety restraints or a car seat at the time of the accident and suffered abrasions to her eye. Mother's blood alcohol level was more than twice the legal limit at the time.
Mother is not a party to this appeal.
On November 4, 2016, the juvenile court terminated jurisdiction, awarding sole physical custody of S. to father and granting mother monitored visits.
II. Current Petition
A. Referral and detention report
The family again came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on April 19, 2020. DCFS received a referral that officers from the Long Beach Police Department (LBPD) responded to a call regarding the family in the early morning hours of April 19, 2020. LBPD Officer Stachura reported that both parents smelled of alcohol but father did not appear intoxicated. Mother was clearly intoxicated and under the influence of some other unknown substance.
Father told the responding officers that he and mother had been in an off-and-on dating relationship for ten years and living together for three years. Mother left the home that evening and when she returned, she appeared to be under the influence of alcohol or another substance. When father tried to talk to her, mother began yelling at him, falling over, then trying to strike him. Father also stated that mother yelled "shut up" and started throwing objects. Mother then slapped father and he fell. When he got up, mother struck and kicked him several times. Father reported that for his safety, he held mother's arms down on the couch for about five minutes. S. was present in the living room during the entire incident and father told her to record it on his cell phone.
Officer Stachura reported that while at the scene, he viewed two cell phone videos of the incident. The first video showed mother slouched over and unresponsive. Mother then woke up and started screaming at father about an ex-girlfriend; mother struck father on the face, causing him to drop his phone. The second video, recorded by S., showed mother trying to hit father. The LBPD officers determined that mother was the aggressor and arrested her.
Father also told police that there had been a prior domestic violence incident but he did not remember when it occurred. Prior call logs from the LBPD showed that in July 2019, police were called to the family's home because of possible domestic violence, with reports of yelling and crying. The log reported that the family was uncooperative and asked the officers to leave. In December 2019, the police were called to the home because of a report of fighting and "thumping around." The caller thought someone was getting hurt. The family told police that everything was fine and it was just an argument; responding police found no visible injuries.
In the detention report, DCFS included statements from the family's case worker from their 2016 case, Claudia Rubio. Rubio stated that neither parent cooperated during the case. She recalled that mother was "nice but noncompliant," while father was "not as nice" and also noncompliant. She also recalled that both parents had "substance abuse issues" but refused testing. According to Rubio, father refused to complete any court-ordered programs in 2016, including counseling, parenting class, or Al-Anon meetings, stating, "I don't need counseling," "I don't need any programs," and "I know how to father my child." At the time, Rubio recommended that the case remain open, but the court disagreed. Rubio warned the DCFS children's social worker (CSW) assigned to the family in 2020 that she should not go to the family's home alone because of father's "dangerous attitude," and that father was manipulative with no respect for authority. However, Rubio recalled that father interacted appropriately with S. and they appeared to have a positive bond.
On April 24, 2020, a CSW attempted to meet with father at the family's residence. She reported that father came to the door, but denied his identity and stated that no one by his name or by mother's or S.'s names lived at the residence. Father then closed the door and refused to speak further with the CSW. On April 30, the CSW texted father that if the family did not make themselves available, DCFS might open a dependency case without their input. Father texted in response: "NO CHARGES WHERE [sic] FILED! YOU ANSWER IF YOU WANT! I'M NOT TALKING TO THEM AT ALL."
A CSW spoke with mother on April 29 regarding the April 19 incident. Mother denied that there had been any domestic violence and denied that she and father lived together. When mother spoke to DCFS again a few weeks later, she said that she and father had gotten into an argument that night. She admitted that she had been drinking alcohol, but said she was not drunk. Mother said she smoked marijuana occasionally but denied any other drug use. Mother said her relationship with father was "fine," again denied any domestic violence, and said that the incident on April 19 was "just an argument, not too major." When asked why she previously denied living with father and S., mother responded: "They never told us that we couldn't live together."
On May 13, 2020 two CSWs and two LBPD officers attempted to serve an investigative search warrant at the family residence but there was no answer at the door. Later that day, father called a CSW stating that he did not understand why DCFS was involved because he had not filed charges and had clarified to the police that nothing happened on April 19. Father agreed to let the CSW meet with S. the next day.
Two CSWs met with father and S. at their residence on May 14, 2020. According to the detention report, after the CSWs entered the home, father pointed to S. and stated with a raised voice: "There she is. She had no bruises. Check her. There is nothing wrong with her. Check the house!" One of the CSWs told father he was "being aggressive and escalating" and that if he did not calm down, they would leave. Father again questioned DCFS's involvement "in an aggressive manner." Father told DCFS that he had no behavioral concerns with S. and repeatedly stated that she was "the perfect daughter." When asked about drug and alcohol use, father stated that it was not anyone's business. He refused to take a drug test, became upset, and said that neither he nor mother used drugs. Father stated that mother had only been drinking alcohol, not using any other substances, on the night of the April 19 incident. A CSW reported that during their interview, father was "hyper-verbal and repetitive." Father reported that he smoked marijuana every day and that he and mother smoked in the bathroom.
When asked about the previous DCFS history, father stated it was "over." According to father, the last social worker told them their case was closed, and he, mother, and S. had been living together ever since. One of the CSWs reported that father would not directly answer questions, but gave "circular answers." Father said S. was fine and he did not understand why DCFS was asking so many questions. When asked about the domestic violence allegation, father said it was nothing and that all couples argue. He said that he had to have S. record the incident to protect himself, so that he had proof that mother was the aggressor and he would not be arrested. A CSW told father it was inappropriate to have a child record the incident and that father should send S. to her room if he and mother were fighting. Father refused referrals and said the family did not need any resources. Father did not know when S. had last had a doctor's visit. The CSW later informed father that according to the doctor's office, S. had not received a medical checkup since 2016.
A CSW also spoke with S. on May 14, with father nearby. The CSW observed that S. was cautious of father's reactions and very attentive to him. When asked what happens when she gets in trouble at home, S. whispered that both mother and father would yell. With respect to the incident on April 19, S. said that the incident "started small and then it got big." She stated that her parents were arguing, mother "knocked my dad's phone," and that mother was "stumbling around stuff." S. said that her parents did not usually fight like that. When the CSW attempted further questioning, father interrupted and the interview ended.
On June 15, 2020, a CSW contacted father to inform him that DCFS was moving forward with a detention. Father started screaming and yelled, "Fuck you, you stupid bitch, fuck you, bitch ass." Father continued to yell profanities and refused to speak further with the CSW. Mother was also present at the time, and asked father to stop. Mother and father engaged in a verbal argument while the CSW was on the phone. A CSW met with S. at maternal grandmother's home on June 16. S. said that she was happy and liked to be with her grandmother.
The detention report also disclosed several prior referrals for the family. First, in April 2013, DCFS received a referral alleging general neglect and emotional abuse against mother. Both parents denied recent domestic violence, but mother stated that a few years earlier, she slapped father and was arrested. The referral was closed as inconclusive. Second, in March 2015, DCFS received a referral for emotional abuse against father. According to the police report, mother and father had been drinking and got into an argument when father accused mother of using drugs and not taking care of S. Father threw a beer at mother, and mother and father pushed each other while father was holding S. Father was arrested. Mother refused an emergency protective order, stated that there had been several prior incidents of domestic violence, but this was the first time it was reported. Mother stated she was no longer in a relationship with father and he did not reside with her. Both parents declined DCFS services. The referral was closed as inconclusive. DCFS reported that the situation was stable and S. appeared safe in mother's care.
The third referral, received in May 2015, alleged physical and emotional abuse against mother. The caller reported that mother had asked father to come to the home because she was not feeling well. When father arrived, he saw S. (then four years old) through the window and mother passed out on the floor. Father instructed S. to splash water on mother's face. Mother woke up swinging her fists, hitting S. several times in the head and face. Father then broke into the home through a window and took S. to a neighbor's home. Father called the police. Mother was reportedly under the influence of ecstasy and was arrested. The referral was closed as inconclusive. At the time, father stated that he and mother were not together, but she was a great mother, and he believed someone put something in her drink, causing her to be incoherent. Fourth, in February 2016, DCFS received the referral based on the car accident involving mother and S. Mother's toxicology results showed a blood alcohol level of 0.22. Mother was arrested and S. was detained from mother.
In the detention report, DCFS noted that this was the fifth referral for the family alleging substance abuse and/or domestic violence. DCFS also reported that mother and father did not complete their court-ordered classes from their 2016 case and had been living together ever since, despite the court's prior orders giving mother only monitored visitation. DCFS recommended that the court continue to detain S. from both parents, citing mother's and father's "denial of the presenting issues, lack of corrective action, history of domestic violence and mother's history of alcohol and substance abuse." DCFS detailed the pre-placement preventative services it provided that were not effective in preventing the need for removing S. from the home, including services ordered in 2016, with which neither parent complied. DCFS also cited father's initial denial of his identity, the denial by both parents that there was any domestic violence, and their refusal of services.
B. Petition and jurisdiction/disposition report
DCFS filed a dependency petition on June 18, 2020 under section 300, subdivisions (a) and (b)(1). In count a-1, the petition alleged that mother and father engaged in a violent altercation in S.'s presence when mother struck father with her hand near father's face, causing his phone to fall out of his hand. Mother also slapped father, causing him to fall to the ground, repeatedly struck and kicked his body, and threw various objects around the home. The count also alleged that father held mother down and had S. record the incident on his cell phone, and that mother was arrested for battery as a result of the incident. The petition alleged that mother and father had a violent altercation on a prior occasion, and that their violent conduct endangered S. and placed her at risk of serious physical harm. Count b-1 alleged a failure to protect S. based on the same conduct. Count b-2 alleged that mother had a history of substance abuse, including marijuana and alcohol, and currently abused both substances, which rendered her incapable of providing regular care of S. The petition alleged that mother was under the influence of marijuana and/or alcohol while caring for S. on April 18 and May 18, 2020 and had a positive toxicology screen on May 18, 2020. Mother also had a conviction for driving under the influence (DUI). The petition further alleged that father knew of mother's substance abuse and failed to protect S. by allowing mother to reside in the home and have unlimited access to S. S. was detained from both parents and placed with her maternal grandmother.
In its jurisdiction/disposition report, DCFS reported that a CSW met with S. on July 10 at maternal grandmother's home. S. said that she lived at home with mother and father, and mother drove her to and from school. S. denied any abuse or neglect. S. recalled mother and father arguing after mother came home on April 19, but said she was not sure whether mother hit father because she was hiding behind her phone. She denied that mother kicked or slapped father. When asked if mother slapped the phone from father's hand, S. stated, "My eyes were closed, I didn't see that either." She said her eyes were closed because she was scared. S. confirmed that mother threw some items and that father held mother down. She also confirmed that she recorded the incident, because father "did not want me to be taken away." S. also recalled another incident, about four years before, where both parents were drinking and got into a fight where they were "pushing and throwing drinks." Someone else called the police and mother was arrested. S. reported that mother drinks at home "maybe every other day," and that mother probably had a substance abuse issue, which was "why she acts out like this."
The CSW met with father on July 8, 2020 and described father as friendly and cooperative. Father expressed frustration and attempted to minimize the incident; he also made statements that contradicted his prior statements. When asked about the April 19 incident, father stated that the "only thing that happened is the phone." He denied saying that mother had smacked, hit, or kicked him. He was also adamant that mother was not under the influence of alcohol, insisting that she was just in a "bad mood." Father stated that mother left the room after she knocked the phone from his hand. He claimed that mother slapping the phone from his hand was "normal behavior" because she did not want to be recorded. He denied that mother had thrown things or that he had restrained mother and stated that the police report was "a lie." Father denied that S. recorded the incident or that he asked her to do so and claimed he no longer had the videos on his phone. However, he acknowledged that it was "a mistake on my part" that S. was in the room during the argument. Father told the CSW that he did not know who called the police on April 19 and they "should have never been called." Father also denied that mother had a substance abuse problem but allowed that "maybe she does drink excessively." Father told DCFS that he and mother agreed that she would move out of the home and "do what she needs to do," and he would protect S. Father insisted that S. was safe with him and neither he nor mother put S. in danger.
In an interview with DCFS on July 13, 2020, mother denied hitting or kicking father and denied being intoxicated during the April 19 incident, but said she had alcohol "in my system." Mother admitted that she and father had "a tumultuous relationship" and that previously she hit father one time, and once he threw a drink on her, but insisted that mostly "[w]e just go back and forth yelling."
Maternal grandmother told DCFS that the family's issues stemmed from mother drinking too much and that mother's drinking was worse when she was with father. She also reported that mother and father "fight all the time" and had pushed each other in the past. She thought S. was protective of her parents and that both mother and father needed anger management.
In addition to the prior history detailed above, the report noted that mother was arrested in June 2010. On that occasion, mother and father began to argue, then mother punched father repeatedly in the face. Father refused medical attention or an emergency protective order and became uncooperative with police when he learned that mother was being arrested. Mother admitted having a few drinks earlier that day.
S. told DCFS that she wanted to live with father or both parents, but that her parents "need to work some stuff out." She was reportedly doing well in school.
DCFS opined that S. was at substantial risk of harm in her parents' care. The report noted that mother continued to consume alcohol in excess even after two prior child endangerment charges and the DUI, and despite completion of an alcohol treatment program. DCFS also noted that father had been initially uncooperative with the department and S. appeared to be coached during her interviews. DCFS opined that father "has not shown protective capabilities as he allowed mother continued access" to S., including allowing mother to drive S. to and from school. Both parents "minimized mother's alcohol use and the ongoing domestic violence in the home and appear to be more concerned with protecting each other than addressing the concerns" relating to S.'s safety. Thus, DCFS recommended against releasing S. to father until he showed "further insight into the current issues by enrolling in services and demonstrating his protective capabilities."
Father reported that he had completed two Al-Anon sessions and would continue to attend weekly. Although hesitant, father also agreed to enroll in parenting classes.
C. Adjudication and disposition
At the adjudication hearing on August 6, 2020, mother and father pled no contest to the amended allegations of the petition. Pursuant to the no contest plea, the court dismissed count a-1 and sustained amended counts b-1 and b-2. Accordingly, the court declared S. a dependent pursuant to section 300, subdivision (b)(1) and continued the matter for a contested disposition hearing at father's request.
As amended, count b-1 alleged: "On 04/18/2020, [mother and father] engaged in an altercation in the child's presence. The mother struck the father, slapped the father, and repeatedly struck and kicked the father's upper body. The mother threw various objects about in the child's home. The father held the mother down. The father had the child record the violent altercation on the father's cell phone. On a prior occasion, the mother and father engaged in a violent altercation. Such conduct on the part of the mother against the father endangers the child's physical health, safety and well-being and places the child at risk of serious physical harm, damage and danger." Amended count b-2 alleged that mother had a history of substance abuse, including marijuana and alcohol, and was a "current abuser of alcohol." The count further alleged that mother's substance abuse and father's failure to protect S. endangered the child and placed her at risk of serious physical harm.
DCFS filed a last minute information on September 11, 2020. Father reported that he continued to participate in weekly Al-Anon sessions, but DCFS stated that father had not provided confirmation of enrollment in any services. Maternal grandmother reported that visits with both parents were going well. DCFS stated that it continued to have concerns regarding releasing S. to her parents. Mother was inconsistent with weekly drug testing and continued to live with father, and the department expressed concerns regarding their pattern of domestic violence. Although mother had agreed to find another place to live if S. were released to father, DCFS was concerned "that father would allow mother to return to the home as he has done so in the past." DCFS requested "further progress from the family in their recommended services, consistency in mother's random weekly drug tests, and insight into the current concerns of the department."
The court held the disposition hearing on September 15, 2020. Father requested release of S. to his care. Mother requested release of S. to her care, or, alternatively, to father's care. DCFS and counsel for S. requested that the child remain placed with maternal grandmother.
Father testified at the hearing. He stated that mother had agreed to move out of the home. Father acknowledged that "when she's drinking," mother drank alcohol "extensively." Father testified that he had participated in four or five Al-Anon sessions and planned to continue the classes because "it helps" by "tell[ing] me how to deal with situations and it tells me when you're in, I guess, a relationship with someone and their behaviors and teach [sic] you how to cope with them and teach [sic] you how to respond to them." Father also stated that he had decided to participate in counseling but was "waiting for intake." He acknowledged that involving S. "was a mistake of mine. I didn't realize that I was involving her by asking her to do what I did, but I did that and it was a mistake of mine. . . . I shouldn't have did it [sic], but it wasn't by choice. . . . It was just something I wasn't thinking about at the time." When asked, given what he had learned, whether he would do anything differently regarding raising S., father stated: "She's not normally involved just like I said, so I would never make that same mistake again. I know it was a mistake." He explained that he thought that asking S. to "take a picture . . . was protecting me at the time."
Father testified that he was ready to care for S. and would allow DCFS to conduct frequent and unannounced home visits. The court asked father, other than having S. make the recording, "now that you've been to some Al-Anon [meetings], is there anything else that you would have done differently thinking back?" Father replied that he could have left the house with S. The court then asked: "Other than how you handled that incident in April, . . . thinking back about the situation with the mother and the drinking and its affect on your child, is there anything else that you think you might have done differently?" Father responded that he "would have never even pulled my camera out."
The court tentatively found that, as to mother, "it's pretty clear that the department has met its burden of proof" to support removal by clear and convincing evidence. Citing mother's 2016 car accident with S. unrestrained in the car, the court found that "if someone is still drinking after something like that happens, they have a pretty serious drinking problem." The court also noted the 2015 incident where mother passed out while caring for S. and concluded that, "at this point until the mother really fully addresses her drinking problem, it is not safe to release the child to the mother."
The court found that as to father, it was "kind of a harder question." As the court explained: "There is no showing that he himself has a drinking problem. The problem is that the way that he has dealt with the mother's drinking problem has really not always kept the child safe. As I said, the prior case closed in November of 2016, sole custody to father, monitored visits to mother, and apparently right after the case closed, the parents got back together. The mother hadn't stopped drinking. [¶] Then there was this incident in April where the father explained that he now understands that handing his phone to the child to record the mother's behavior wasn't appropriate, but nonetheless that happened. Then during the investigation, it seemed that father was still kind of in denial of just how serious the impact of the situation on the child was and was really sort of angry about DCFS being involved at all. Mother was still sort of minimizing her drinking problem." Under those circumstances, the court indicated that its "very tentative" ruling, understanding "the seriousness of removing this child from her father," was to find that DCFS had met its burden of proof as to both parents. The court reasoned that S. should continue to live with maternal grandmother until father "really had a chance to come to grips with how to protect his child from the really serious emotional impact of mother's drinking and of his response to mother's drinking."
Father's counsel urged the court to consider returning S. to father with safety measures in place, including having mother move out. She noted that father had completed some Al-Anon classes, which provided him with "tools and information on how to essentially have a relationship with someone who has a substance abuse problem." Counsel also argued that frequent and unannounced DCFS visits could ensure that mother had moved out and S. was being protected. She contended that the evidence did not suggest any ongoing domestic violence. Citing the protection of the proposed safety measures, father's progress in Al-Anon, the evidence that his visits with S. had gone well, and his compliance with the court's order not to visit S. together with mother, father's counsel argued that S. would not be at substantial risk of harm if returned to father.
S.'s counsel acknowledged that S. "very much wanted to return home to her parents." However, her counsel disagreed, arguing that "this is such a long standing issue as the court noted and this happened at a time when father had sole custody and mother was supposed to have monitored visits and...was living in the home. [¶] I do not believe that the safety plan articulated by father's counsel would be sufficient to protect S[.] just yet."
The court again noted DCFS's heightened burden of proof and that "there has never been any showing that the father himself was ever abusive or neglectful towards the child except in having this blind spot . . . concerning the impact on the child of the mother's drinking." The court recognized father's expressed willingness to cooperate and stated that, in light of the proposed safety plan, "it is a little difficult to see what the clear and convincing evidence of substantial danger would be." The court also acknowledged that S. was old enough "for her views to be taken into account. Although, not obviously old enough to necessary [sic] appreciate all of the risks that may be facing her, so I really appreciate minor's counsel's candor." The court noted it was "obvious" that S. had a "strong bond with both parents but especially with her father and, you know, would suffer emotionally if removed," and indicated that it was a "close case" given "father's position today as opposed to his actions in the past," which were "influenced by denial and codependency" but it "does appear that that position has changed or is changing."
Counsel for DCFS argued that father's testimony indicated he "did not seem to quite grasp what all of the issues were that brought the case back in front of the court." She noted that father recognized the mistake of asking S. to record mother during the incident, but "that is not what the problem was. That is not why we're here. . . . Mother was once again under the influence. She was once again violent and she was living in the home and father allowed that to go on for a long period of time." Counsel cited father's statement in the jurisdiction/disposition report that the police should never have been called on April 19. She also pointed out that father had never acknowledged "that the real problem is mother has an extensive history and ongoing issues with alcoholism and father has continued to allow her to be around the child while she's in the throes of that addiction. They still live together today." If S. were released to father, she argued that "it's unclear that he would really be able to protect her" given his lack of insight, and "the long history in this family and sort of inability to see what the real heart of the problem is."
After hearing argument, the court agreed with DCFS's counsel, reasoning that "if there hadn't been that prior case, this would be a different situation. When I asked father if there was anything else he might have done differently, I was kind of hoping he would say gee, I probably shouldn't have let mom move in right after the court closed the prior case." The court noted that it closed the prior case with only monitored visitation for mother because "mother hadn't done anything to address her drinking problem." The court also cited the "first incident where the mother's drinking affected the child" in 2015, as well as the DUI in 2016 where "the child was actually injured," but after which mother and father "got back together." The court also noted the two prior calls to the police regarding mother and father in July and December of 2019. The court continued: "After all of that, the father is still angry at DCFS for intervening and kind of says this is a family matter, leave us alone." The court also pointed to mother's statement regarding the 2016 incident that she "had a couple of beers," as evidence that mother continued to struggle with "that powerful psychological force of denial" and concluded that the situation "just isn't safe."
Accordingly, the court found by clear and convincing evidence pursuant to sections 361 and 362 that it was necessary to remove S. from both parents because there was a substantial danger to S. and no reasonable means to protect S. without removing her. The court ordered family reunification services, monitored visitation for mother, and unmonitored visitation for father, with discretion to DCFS to liberalize father's visitation to overnight and extended visits.
Father timely appealed from the September 15, 2020 order.
DISCUSSION
Father appeals from the court's dispositional order removing S. from her care. He argues that the court lacked substantial evidence to find that there was a substantial risk of harm to S. if she were returned home and that there were no reasonable means to protect S. absent removal. We find no error and therefore affirm.
I. Legal Standards
The juvenile court may remove a child from the custody of a parent if it finds, by 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 from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) "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." (In re D.B. (2018) 26 Cal.App.5th 320, 328 (D.B.), citing In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
"In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (D.B., supra, 26 Cal.App.5th at p. 332, citing In re Cole C. (2009) 174 Cal.App.4th 900, 917.) The court "must also consider whether there are any reasonable protective measures and services that can be implemented to prevent the child's removal from the parent's physical custody." (D.B., supra, 26 Cal.App.5th at p. 332, citing § 361, subd. (c)(1).)
We review disposition orders for substantial evidence. (See In re V.L. (2020) 54 Cal.App.5th 147, 154 (V.L.).) "'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.'" (In re I.J. (2013) 56 Cal.4th 766, 773.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The [order] will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate 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. (2020) 9 Cal.5th 989, 1011-1012; see also V.L., supra, 54 Cal.App.5th at p. 155 [finding that "O.B. is controlling in dependency cases"].)
"The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or orders." (In re E.E. (2020) 49 Cal.App.5th 195, 206; D.B., supra, 26 Cal.App.5th at pp. 328-329.)
II. Substantial Evidence Supports Removal
Father contends the juvenile court erred in finding by clear and convincing evidence that S. was at a substantial risk of harm and there were no reasonable means to protect her without removing her from father's care. We conclude substantial evidence supports the court's removal order.
The record supports the juvenile court's finding that S. would be at substantial risk of harm if she remained in father's custody. The court's assumption of jurisdiction in 2020 followed numerous prior referrals regarding domestic violence between mother and father and substance abuse by mother, often in S.'s presence. Most notably, in 2015, mother passed out while caring for S., then struck her several times when S. tried to rouse her. Then, in 2016, mother failed to secure S. in her car seat and drove while intoxicated, causing a car accident in which S. was injured. Despite these repeated instances of a clear danger to S. from mother's continued substance abuse, father continued to downplay and deny mother's problems and insist that his family did not need services or DCFS involvement.
More concerningly, even after the court expressly limited mother to monitored visitation at the conclusion of the 2016 case, father continued to allow mother to live with the family and have unrestricted access to S. Indeed, at the time of the 2020 incident, mother was still drinking and was responsible for driving S. to and from school. During the most recent incident, mother engaged in domestic violence against father while intoxicated. S. was present for the entire incident and became involved when father asked her to record it on his phone. Afterward, father initially refused to cooperate with DCFS and then continued to deny that mother was intoxicated. As late as July 2020, he insisted to DCFS that mother had not hit him and that he had not told S. to record the incident, stated that he had deleted the videos of the incident, and suggested that the police should never have been called. Under these circumstances, the evidence supports the juvenile court's finding that S. continued to be at a risk of harm based on mother and father's denial of the serious problems posed by mother's conduct, and father's repeated failure to protect S. from that harm. (See V.L., supra, 54 Cal.App.5th at p. 156 ["A parent's denial of domestic violence increases the risk of it recurring."]; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge"].)
We also find substantial evidence from which the juvenile court could have found it highly probable that there were no reasonable means to protect S. without removing her from father's custody. (§ 361, subd. (d); D.B., supra, 26 Cal.App.5th at p. 332.) Father argues that his proposed safety plan, which included ordering mother to move out and allowing DCFS unannounced visits, would have adequately limited mother's interactions with the family and therefore protected S. The record reflects the court's consideration of these options and acknowledgment that the case was "close" regarding removal from father. But the court was also entitled to consider the evidence, as noted by counsel for DCFS, of father's continued lack of insight into the harm caused by mother's behavior and by his willingness to expose S. to that behavior. Although father had agreed to comply with the safety plan, at the time of the dispositional hearing he continued to live with mother.
Moreover, although father recognized that it was a mistake to have asked S. to record the incident with mother, he expressed no remorse about allowing mother to return home in 2016 in contravention of the court's custody and visitation orders, which ultimately led to placing S. in harm's way during the April 19 incident. As the court noted, father had begun to take steps toward compliance, including attending Al-Anon meetings and signing up for counseling. However, substantial evidence supported the court's conclusion that father had not yet gained the insight from these services necessary to be able to protect S. from further harm. Father also had a significant history of refusing to cooperate with DCFS, including yelling at and lying to social workers, interfering with their attempts to interview S., and refusing to participate in services. As such, the court was entitled to find that imposing a safety plan, which required father's cooperation, was insufficient to protect S.
"The trial court is in the best position to determine the degree to which a child is at risk based on an assessment of all the relevant factors in each case." (In re Drake M. (2012) 211 Cal.App.4th 754, 766.) Viewing the evidence in the light most favorable to DCFS, we conclude a reasonable trier of fact could have found it highly probable that placing S. with father would pose a substantial risk of harm, and that there were no reasonable means to protect S. without removal from father's physical custody.
DISPOSITION
The order is affirmed.
We concur: MANELLA, P. J., WILLHITE, J.