Opinion
E077301
12-27-2021
In re I.D. et al., Persons Coming Under the Juvenile Court Law. v. J.D., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Nos. J288531, J288532, J288533 & J288534, Annemarie G. Pace and Christopher B. Marshall, Judges.
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER ACTING P.J.
The juvenile court removed J.E. (age 15), C.D. (age 14), J.D. (age 12), and I.D. (age 11) (collectively the children) from parents' custody, finding that placement of the children with defendant and appellant, J.D. (father), the noncustodial father, would be detrimental to their safety, protection, or physical well-being. Father contends there was insufficient evidence to support the court's finding of detriment and that the court failed to make the required factual findings to support the removal of the children. Father argues the court improperly considered father's poverty in rendering its finding of detriment. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2021, the social worker received an immediate response referral alleging physical abuse, caregiver absence and incapacity, severe neglect, and general neglect to the children by mother. The reporting party alleged that mother came home extremely drunk and attacked J.E. by punching her in the face and dragging her by her hair. J.D. attempted to intervene, and mother punched him in the face. J.E. sustained bruising to her face and forearms. J.D. sustained a laceration of the side of his face and a black eye. Officers arrested mother and charged her with child cruelty.
Mother is not a party to the appeal.
The social worker interviewed the children separately; they all reported that mother had been arguing with the stepfather, at whom she threw a skateboard; mother then attacked J.E. and J.D. while the other two children attempted to intervene. J.E. said mother would drink all the time; J.E. described mother grabbing her by the hair and socking her in the head. She said it was not the first time it had happened. J.D. said mother was hitting the children hard. He confirmed that mother and the stepfather had hit each other in the past.
C.D. said mother went crazy; he attempted to restrain her but could not hold her back from attacking his siblings. C.D. said mother had attacked J.E. several times before. He reported that mother and stepfather had physically attacked one another in the past.
I.D. reported that mother had previously attacked J.E. on several occasions. She said mother and stepfather had hit each other previously. All the children said they no longer felt safe with mother.
Mother admitted being intoxicated. She said the children were fighting with her; she denied intentionally hitting any of the children. She denied any domestic violence between she and the stepfather. Mother said the children had been brainwashed by the maternal grandmother to speak negatively about her and the stepfather.
Father reported knowing about mother's history of drinking and engaging in domestic violence in her home. He said the children would call him whenever they felt unsafe in mother's care and he would come to pick them up.
On March 16, 2021, department personnel filed juvenile dependency petitions, alleging, in pertinent part, that mother had engaged in domestic violence in the presence of the children, had physically abused the children, and had substance abuse issues. As to father, department personnel alleged he failed to protect the children while he knew or should have known about mother's substance abuse issues, domestic violence, and physical abuse of the children. On March 17, 2021, the juvenile court detained the children.
In the jurisdiction and disposition report filed April 2, 2021, the social worker reported that mother had tested positive for marijuana. Mother told the social worker that on the night of the incident, she got drunk, started arguing with the stepfather, and then the children told her husband to leave the home. The stepfather left; J.E. got in mother's face; mother then "'blew up'"; the children began hitting and kicking her; she began defending herself. Mother acknowledged hitting J.E. "'because she got in my face.'" Mother reported one incident of domestic violence a year earlier when she pushed the stepfather. She said the children had never witnessed any physical violence between them. Mother said she smoked marijuana several times a week. She reported drinking every other weekend.
J.E. said there was at least one other occasion when mother hit her. She said that when mother is "'drunk, she socks me all over my body, and I cover my body.'" J.E. reported mother and stepfather would fight in their bedroom; mother would cover the injuries she would sustain to her face with makeup when stepfather would hit her. J.E. said mother would get drunk weekly. J.E. reported the maternal grandmother "'told my dad when she called the police last year when my mom hit me. He told me next time that happens, call the cops.'"
C.D. said mother would drink a lot. When mother would get drunk she would sock J.E. in the chest. Mother hit J.E. on multiple occasions. On this occasion, J.D. tackled mother to the couch because mother was hitting J.E. Mother hit J.D.; C.D. then intervened and mother tried to hit him.
I.D. reported mother "'hit us like she was actually in a fist fight.'" The children reported they threatened to call law enforcement and mother said: "'Call the cops, you guys will end up in foster care and get raped.'" The children did not wish to reunify with mother.
Father reported the children would call and say that mother drank a lot when she went out to clubs; she only drank on the weekends. Mother would text him when she was drunk, informing him that she wanted him to take custody of the children, but she would change her mind once she became sober. Father said the children never reported any physical abuse to him. Father said the children reported hearing, but not seeing, domestic violence between mother and the stepfather.
Father reported having five other children, only one of whom lived with him. He had custody of three of the other half siblings every other week; his wife watched them while he worked.
In February 20, 2018, allegations of severe neglect as to one of the half siblings had been substantiated due to father's actions. The social worker reported that father had "demonstrated benefit from previous services and accepted responsibility for his role as the father to the half-siblings. The children have a strong bond with the father and several of the children express a desire to return to his custody immediately. The father does not have adequate housing to accept custody of the children at this time."
Father "reported concerns with the domains of parenting practices, and resource management, that he reports are barriers to the safety and well-being of his children, as he has never raised his children as a single parent and needs more adequate housing to take care of his four . . . children." "The father reported he had been saving money for the children to live with him . . ., he has been looking for a bigger place to take custody of the children and would be living on his single income. He reported he is rebuilding his life to get back on track with being self-sufficient. He reported he is [in]capable of caring for his children, and does not have adequate space for them at this time. [¶] . . . Although no safety concerns have been identified for the father's home, the father reported he has insufficient space in his one . . . bedroom apartment to take custody of the children at this time. The father described a plan to obtain larger housing to accommodate placement of the children. Further assessment will be needed to determine appropriateness of placement when the father's living arrangements have been updated."
At the hearing on April 7, 2021, counsel for the department noted: "My understanding is that Father does not have appropriate housing. If he gets that, . . . can you let me know so I can have the social worker check it out?" Father's counsel responded, "Absolutely."
At the contested jurisdiction and disposition hearing on June 24, 2021, father testified that he had never entered mother's residence. He communicated with mother through J.E. J.E. never indicated any kind of abuse or neglect in the home. Father denied telling the social worker he was concerned about the safety of the children; he denied knowing that the stepfather beat mother. He was unaware of any incident a year earlier where mother hit J.E.; he never told J.E. to call the police the next time it happened. The children had called father once or twice when mother came home drunk.
Father told the social worker he did not have adequate space for the children: "I [have] a one-bedroom apartment right now, and I'm trying to save up to buy a house or get a-rent a house with . . . two- or three-bedroom[s] for the kids." However, there was no risk of physical harm, injury, or illness to the children in father's current residence.
The social worker testified she "asked the father if he's able to take his four children, and he let me know that he is not able to because he feels he has insufficient space." She had "not assessed the father's home since he informed [her] during [their] interview that he did not have sufficient space for the children to be placed with him."
The social worker testified that J.E. reported that the maternal grandmother told father that mother had hit J.E. a year earlier, which caused the maternal grandmother to call the police. J.E. said father told her to call the police next time mother hit her. Father had reported having prior knowledge of mother's extensive alcohol consumption and the domestic violence that occurred in her home. Father said he had concerns that the domestic violence might lead to violence against the children. The children told father they could hear domestic violence, but father told them it did not affect them. Father reported that J.E. previously called him saying she wanted to be picked up because mother and stepfather were in the home drunk.
Counsel for the department argued that father was aware of mother's violence toward the children: "Father is absolutely unprotective. Father absolutely did not protect these children. He was aware of the domestic violence. He was aware of the physical abuse. He was aware of the substance abuse concern[s] . . . ."
Father's counsel noted that father "has been actively searching for a more suitable home. He realizes that he does have a small residence at the moment. . . . [¶] He does want to emphasize that there is not specific danger from his home, although it does pose an inconvenience for those living there." Counsel for the department responded, "the suitability of Father's residence-or its unsuitability-comes from Father himself saying he can't care for the children right now, so placement with him is not appropriate."
The juvenile court stated that after weighing the credibility of the testimony of father and the social worker, "[t]here is information that [father] was aware of the domestic violence; that he was aware that there was likely to be . . . an issue with the mother striking these children, and the father did not take protective steps with respect to that."
The juvenile court found the allegations in petitions true as amended. The court removed the children from the parents' custody, finding placement with father detrimental to the children's safety, protection, or physical well-being. The court granted the parents reunification services.
Department personnel had filed amended petitions as to I.D. and C.D. with amendments not relevant to the issues raised herein. Similarly, the court dismissed several allegations not relevant to the issues raised herein.
II. DISCUSSION
Father contends there was insufficient evidence to support the juvenile court's finding of detriment, and the court failed to make the requisite express factual findings to support the removal of the children. Father argues the court improperly considered father's poverty in rendering its finding of detriment. We disagree.
1. Sufficiency of the Evidence
"'At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if returned home, and that there are no reasonable means to protect the child's physical health without removing the child . . . .' [Citations.] The juvenile court is statutorily required to determine 'whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home' and 'shall state the facts on which the decision to remove the minor is based.'" (In re L.O. (2021) 67 Cal.App.5th 227, 246-247.) "But, '"'[t]he 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."'" (Id. at p. 245.)
"We review a juvenile court's dispositional order removing a child from parental custody for substantial evidence, '"bearing in mind the heightened burden of proof."' [Citation.] 'Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.' [Citation.] Still, the appellant bears the burden of showing '"there is no evidence of a sufficiently substantial nature"' to support the dispositional removal order." (In re L.O., supra, 67 Cal.App.5th at p. 245.) "'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 R.T. (2017) 3 Cal.5th 622, 633.)
Here, father initially reported to the social worker that he was aware of mother's drinking and engagement in domestic violence in the home. He said he would pick up the children whenever they called because they felt unsafe in mother's care. Later, in the jurisdiction and disposition report, father reported the children would call and say that mother drank a lot. He said that mother would text him when she was drunk, informing him that she wanted him to take custody of the children, but she would change her mind once she became sober. Father said the children reported hearing, but not seeing, domestic violence between mother and the stepfather. J.E. reported that the maternal grandmother "'told my dad when she called the police last year, when my mom hit me. He told me next time that happens, call the cops.'"
The social worker testified at the jurisdiction and disposition hearing that J.E. reported that the maternal grandmother told father a year earlier when mother hit J.E. J.E. said father told her to call the police the next time mother hit her. Father had reported to the social worker having prior knowledge of mother's extensive alcohol consumption and the domestic violence that occurred in her home. Father said he had concerns that the domestic violence might lead to violence against the children. The children told father they could hear domestic violence, but father told them it did not affect them. Father reported that J.E. previously called him saying she wanted to be picked up because mother and stepfather were in the home drunk.
Although father testified that he had no prior knowledge of the occurrence of abuse and domestic violence in the home, the juvenile court made an express credibility determination that father was aware of the domestic violence in the home, and that mother had struck the children on a prior occasion. That credibility determination was the province of the court, which we do not reexamine. Thus, there was sufficient evidence that father knew mother abused alcohol, engaged in domestic violence in the home, and had previously struck one of the children, yet father had never taken any steps to protect the children.
Father had reported having five other children, one of whom lived with him. He had custody of three of the other half siblings every other week; his wife watched them while he worked. Father lived in a one bedroom apartment, which he himself said was inadequate to house four additional children. Thus, there was sufficient evidence to support the juvenile court's finding that placing the children in father's custody posed a substantial risk of detriment to them. This is because eight children at times would be living in a one bedroom home supervised only by father's wife when father had previously demonstrated a disinclination to protect the children when someone else posed a danger to them.
2. Express Findings for Removal
Father maintains "the juvenile court failed to state its reasoning" or "the facts on which the decision to remove" the children was based. (Welf. & Inst. Code § 361, subd. (e).) We disagree.
Here, the jurisdiction and disposition hearings were held simultaneously. Afterward, the juvenile court stated the following: "The Court believes that the Department has met its burden with respect to the allegations, and as specifically relating to [father], that there was a failure to protect. There is information that [father] confirmed in his testimony today as well as in the report that he was aware of the domestic violence; that he was aware that there was likely to be . . . an issue with the mother striking these children, and that father did not take protective steps with respect to that. [¶] The Court notes that the father was told by the children, who would call him and say that Mother drinks a lot when she goes out to the clubs; that Father reports . . . that he does have knowledge of Mother's drinking and domestic violence relationships, and he indicates that . . . he has told his children just to call. He's a just a phone call away. [¶] And so there's clear information that came to the father that made him aware that these children . . . have their safety and protection at issue because of the mother and the domestic violence. That does impact the children. [¶] The father didn't take legal action to protect the children. The Court notes the comments that [father] indicated from the children, but also notes that the father's already acknowledged that he was aware . . . that there was domestic violence in the home; of the mother's violent nature."
Although the juvenile court made this statement immediately prior to issuing its jurisdictional findings, it is reasonably inferable the court meant it to apply to its dispositional ruling as well. In any event, for all the reasons stated ante, it is not reasonably probable that a result more favorable to father would have resulted had the court stated facts supporting its detriment finding. (In re L.O., supra, 67 Cal.App.5th at p. 247 [Where the juvenile court "did not state any facts in support of removal or make any findings concerning reasonable means of preventing removal," based on a review of the entire record, it was "not reasonably probable that the court would have found that [the children] could safely be returned home."].)
3. Poverty
Finally, father exposits In re G.S.R. (2008) 159 Cal.App.4th 1202 (G.S.R.) for the proposition that the juvenile court erred in considering his "poverty" as a basis for its removal of the children. (Id. at pp. 1210-1216; see In re P.C. (2008) 165 Cal.App.4th 98, 106-107 [the offending parent's parental rights may not be terminated where the only remaining alleged basis of detriment to the return of the children to the parent is that parent's poverty].) We disagree.
In an appeal from the juvenile court's order terminating the father's parental rights, the Court of Appeal in G.S.R. held that a nonoffending parent's inability to provide suitable housing due to poverty was insufficient evidence for the juvenile court to find by clear and convincing evidence that there was a substantial risk of detriment to place the child with the parent such that it could terminate the parent's parental rights. (In re G.S.R., supra, 159 Cal.App.4th at pp. 1215-1216.) The G.S.R. court noted that "poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction." (Id. at p. 1212.)
Here, however, father is not a nonoffending parent. The juvenile court found true allegations against father that he failed to protect the children from substance abuse, domestic violence, and physical abuse that he knew to be occurring in mother's home. Moreover, the court did not take jurisdiction over the children with respect to father because he had unsuitable housing. There were no allegations against father with respect to housing, and the court did not render any findings regarding any unsuitability regarding father's housing. Furthermore, unlike in G.S.R., the context of the juvenile court's ruling here did not involve termination of father's parental rights.
To the extent that father's housing situation entered into the juvenile court's detriment calculus at all, it is notable that father himself informed the social worker that he was unable to provide for the children. Father "reported concerns with the domains of parenting practices, and resource management, that he reports are barriers to the safety and well-being of his children, as he has never raised his children as a single parent and needs more adequate housing to take care of his four . . . children." "The father reported he has been looking for a bigger place to take custody of the children and would be living on his single income. He reported he is rebuilding his life to get back on track with being self-sufficient. He reported he is [in]capable of caring for his children, and does not have adequate space for them at this time. [¶] . . . Although no safety concerns have been identified for the father's home, the father reported he has insufficient space in his one . . . bedroom apartment to take custody of the children at this time. The father described a plan to obtain larger housing to accommodate placement of the children. Further assessment will be needed to determine appropriateness of placement when the father's living arrangements have been updated."
At the hearing on April 7, 2021, counsel for the department noted: "My understanding is that Father does not have appropriate housing. If he gets that, . . . can you let me know so I can have the social worker check it out?" Father's counsel responded, "Absolutely." Father later testified that he told the social worker that he did not have adequate space for the children: "I [have] a one-bedroom apartment right now, and I'm trying to save up to buy a house or get a-rent a house with . . . two- or three-bedroom[s] for the kids."
The social worker testified she "asked the father if he's able to take his four children, and he let me know that he is not able to because he feels he has insufficient space." She had "not assessed the father's home since he informed [her] during [their] interview that he did not have sufficient space for the children to be placed with him." In other words, father, not the department or the juvenile court, determined that he was unable to provide for the children. Thus, the court's finding of detriment was supported by sufficient evidence.
III. DISPOSITION
The judgment is affirmed.
We concur: FIELDS J., RAPHAEL J.