Opinion
B298531
03-18-2020
In re SOFIA V., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.V., Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jeanette Cauble, Principal Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP01446) APPEAL from a judgment of the Superior Court of Los Angeles County, Sabina A. Helton, Judge. Affirmed. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jeanette Cauble, Principal Deputy County Counsel for Plaintiff and Respondent.
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Mother M.V. appeals a jurisdictional finding and dispositional order of the juvenile court concerning her dependent children, Sofia V. and Andrea N. She argues that the evidence was insufficient to support jurisdiction on the allegations of the dependency petition concerning domestic violence; that the court erred when it ordered her to address domestic violence issues in individual counseling; and that the matter should be remanded for the court to comply with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) as to Sofia V. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The family, consisting of Mother, Alberto N. (Father), Sofia V., and Andrea N., came to the attention of the Department of Children and Family Services in December 2017 at a routine traffic stop. Father was given a ticket for not having a car seat for Andrea N. Mother, who appeared to be under the influence of a controlled substance, was taken into custody after a background check revealed an outstanding warrant for driving under the influence. Mother became so upset when she learned that Sofia V. would be released to Father that the police contacted DCFS.
Alberto N. is Andrea N.'s biological father. He was declared the presumed father of Sofia V. at the disposition hearing in April 2019.
When Mother was later interviewed by DCFS, she told the social worker that when she was released from jail she picked up the children from Father, and Father drove them home. On the way, Mother reported, Father drove erratically on the freeway, reaching speeds of 110 miles per hour. The children were crying and afraid. Terrified, Mother threatened to call the police if Father did not slow down. Father left Mother and the children on the side of the freeway, although he did return and pick them up. Mother told DCFS that she had not seen Father since that incident and had no plans to have contact with him.
Mother said that Father had engaged in domestic violence against her for more than eight years. Father had "kicked, pushed her, pulled her hair on several different occasions, and once he pushed her into a closet and stole her money." She never called the police or left Father because of her outstanding warrant, which Father "held over her head." Mother told DCFS that Father had assaulted her in the children's presence and as a result, the children were afraid of him.
In February 2018, Sofia V., age nine, told DCFS that she was afraid of Father and did not like to be alone with him. Andrea N., who was four years old, did not engage with the social worker when the social worker questioned her.
DCFS filed a petition in March 2018 alleging that the children came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm) and (b)(1) (failure to protect). Under both subdivisions (a) and (b) of section 300, DCFS alleged that Mother and Father "have an extensive history of engaging in violent altercations in the presence of the children. On prior occasions, [Father] kicked the mother, pushed the mother, and pulled the mother's hair in the presence of the children. The mother failed to protect the children by allowing [Father] to have unlimited access to the children and the home. The violent conduct on the part of [Father] against the mother and the mother's failure to protect the children, endangers the children's physical health and safety, creates a detrimental home environment, and places the children at risk of serious physical harm, damage, danger and failure to protect." Additionally, under section 300, subdivision (b), DCFS alleged that Mother's history and present use of illicit drugs, including methamphetamine, rendered her incapable of providing regular care and supervision to the children, endangered their safety, and placed them at risk of serious physical harm and damage.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
The children were detained from Father and released to Mother on the condition that she undergo weekly drug testing with no missed or positive tests.
In May 2018, DCFS interviewed Mother and the children again. Mother now denied that any domestic violence had occurred. She said she had been told by "the other worker that I needed to give them something about a domestic violence situation or that they would detain my children." Despite denying domestic violence, she wanted her home address to remain confidential. Sofia V. denied ever seeing domestic violence between her parents and said that she was not afraid of her parents. Sofia V. denied any abuse or neglect toward her or Andrea N. Andrea N. did not appear to know what domestic violence was, but denied any abuse or neglect of her or her sister.
In June 2018, the children were removed from Mother's custody due to Mother's missed drug tests, her excuses for missing tests, the children's poor school attendance, and the concerns of the director of Mother's recovery center.
At the jurisdictional hearing in February 2019, Mother denied all domestic violence and claimed not to have made the statements reported by DCFS. She continued to assert that the social worker told her to invent an incident of domestic violence or else lose custody of her children. According to Mother's testimony, the social worker told her to describe an incident in which Father was upset, and all she told the worker was that "one day he drove fast on the freeway, but that's because he had to go visit his grandmother who was dying." Mother denied reporting that Father had kicked her, pushed her, and pulled her hair. She denied that she had told DCFS that she was a victim of domestic violence for eight years; that she did not call the police on Father or leave him because of an outstanding warrant that Father used to control her; and that violence had occurred in front of the children.
Mother denied that Father ever drank too much, despite the fact that he had been arrested after staggering down the street, intoxicated, while caring for Andrea N. She denied that there had been any bad times in their relationship, insisting that "he was good." At the same time, Mother testified that she never let Father take care of the children when she was not present.
Father first claimed that he and Mother had never argued, then allowed that there had been "[l]ittle arguments here and there." He testified he had never raised his voice at her. He denied all domestic violence and physical abuse of Mother.
The juvenile court said, "I think one of the biggest issues for this court is that there seems to be a credibility issue with Mother and with Father from my perspective. And the biggest one might be that, if your claim is that you lied to the social worker and made up this whole story about domestic violence, it makes it difficult for me to believe anything that's being said today, and there's a big cast upon your credibility because either you made that whole story up, or you're not telling the truth here today." The court sustained the allegations of the petition.
Between the jurisdictional hearing and the dispositional hearing, both parents visited the children regularly. Mother repeatedly failed to appear for her weekly drug tests. She was twice terminated from drug treatment programs because she failed to participate. By the time of the disposition hearing in April 2019, DCFS considered Mother to be "a greater risk" than Father and requested the children be released to him. The court declared the children to be dependents of the juvenile court and released them to Father. The court ordered Mother to undergo a full drug treatment program, weekly drug testing, a 12-step program, parenting education, and individual counseling to address the impact of substance abuse and domestic violence on the family. The court granted Mother monitored visitation. Mother appeals.
DISCUSSION
I. Finding and Order Based on Domestic Violence
The juvenile court found that under section 300, subdivisions (a) and (b), domestic violence placed the children at substantial risk of harm, and it ordered Mother to undergo individual counseling concerning domestic violence. Mother argues that both the jurisdictional finding and the dispositional order were erroneous because there was no substantial evidence of domestic violence.
Mother acknowledges that the children are subject to juvenile court jurisdiction under section 300, subdivision (b) as a result of the finding that she is unable to protect the children because of her drug abuse. The children, therefore, will remain dependents of the juvenile court regardless of the outcome of this appeal. While we may decline to address allegations of insufficient evidence to support a jurisdictional finding when jurisdiction will continue because other findings afford a basis for jurisdiction (In re I.A. (2011) 201 Cal.App.4th 1484, 1492), we exercise our discretion to review the jurisdictional finding here because it is the basis for Mother's challenge to the dispositional order and must be discussed to review that order.
We review the juvenile court's jurisdictional and dispositional findings for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard of review, we examine the record in the light most favorable to the findings and conclusions of the juvenile court and defer to the juvenile court on issues of credibility of the evidence and witnesses. (In re R.T. (2017) 3 Cal.5th 622, 633.)
Contrary to Mother's claim that "the evidence showed that no domestic violence ever occurred," the record contained substantial evidence of domestic violence. Mother told DCFS that she had been a victim of domestic violence by Father for eight years; that he had kicked her, pushed her, and pulled her hair; that he had pushed her into a closet and taken her money; and that violent incidents had taken place in front of the children. Father, who previously had been convicted of cruelty to a child, had also driven Mother and the children at very high speeds on the freeway, terrifying them and then leaving them at the side of the freeway when Mother said she was going to call the police. Consistent with her disclosure of domestic violence, Mother wanted her home address to remain confidential, and she did not want Sofia V. placed with Father because she never left her alone with him. Also consistent with Mother's account, Sofia V. reported being afraid of Father. While Mother later recanted her report of domestic violence, the court found the parents' denials of domestic violence not credible. Examining the whole record in a light most favorable to the findings and conclusions of the juvenile court, and deferring to the lower court on issues of credibility of the evidence and witnesses, we conclude that the jurisdictional finding of domestic violence was supported by substantial evidence.
Based on this evidence, the juvenile court was well within its discretion to order Mother to participate in individual counseling to address domestic violence. Section 362, subdivision (a) provides that when a child is adjudicated a dependent of the juvenile court, "the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . ." The court has broad discretion in fashioning dispositional orders in keeping with its duty to protect dependent children. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1008.)
II. ICWA
On January 7, 2019, Father advised the juvenile court that he had no Indian ancestry. The clerk's transcript contains a minute order from the same date in which the court found that it had no reason to know that Andrea N. was an Indian child. The clerk's transcript does not contain a minute order pertaining to Sofia V. from January 7, 2019, and Mother argues that the court erroneously failed to rule on whether ICWA applied to Sofia V. with respect to Father.
On our own motion we take judicial notice of the juvenile court's minute order of January 7, 2019, for Sofia V. (Evid. Code, §§ 451, 459.) This minute order contains the court's finding that the court had no reason to know that Sofia V. was an Indian child. The court did not fail to rule on whether ICWA applied to Sofia V. with respect to Father.
DISPOSITION
The judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
SEGAL, J.