Opinion
B298454
06-30-2020
In re J.S. et al., Persons Coming Under the Juvenile Court Law. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.S., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Stephen D. Watson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP01874 A-B) APPEAL from orders of the Superior Court of Los Angeles County, Craig S. Barnes, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Stephen D. Watson, Deputy County Counsel for Plaintiff and Respondent.
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In February 2019, J.S. (father) threatened C.S. (mother) with a loaded gun in the presence of 16-year-old Jae. S. and six-year-old Jan. S. The Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition alleging the children were juvenile court dependents pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b) because father's violent conduct and mother's failure to protect placed the children at substantial risk of serious physical harm. The juvenile court sustained the petition, removed the children from father, placed them with mother, and ordered the parents to engage in family maintenance and reunification services. Mother appealed.
All subsequent statutory references are to the Welfare and Institutions Code.
On appeal, mother does not challenge the jurisdictional findings against father, but she urges the findings against her are not supported by substantial evidence because the children were not injured and because mother took significant steps to protect the children from father's violence, including by separating from father after a prior violent incident. We conclude there is substantial evidence to support the juvenile court's findings against mother, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we describe the evidence in the light most favorable to the juvenile court's findings, resolving all conflicts and drawing all reasonable inferences to uphold the court's orders, if possible. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
A. Background
On February 14, 2019, father picked up the children to spend the evening with them. According to mother, the children were supposed to spend the night at father's home and return in the morning. Instead, father brought the children back at 1:00 a.m. Mother asked father why he never wanted to spend time with the children and told him to leave. Father became angry and kicked in mother's front door, came into mother's house, and, in the presence of both children, pointed a loaded handgun at mother. Father pushed Jae. out of the way when she tried to hold father back and asked him to stop. Jan. "was pulling on mommy's dress and . . . crying." Father apparently thought mother had another man in the house and kept shouting, "Where that nigga at?" When father did not find anyone else in the home, he left, and mother called law enforcement. Father was later arrested.
Regarding past domestic violence, mother said that in August 2018, father had choked her after telling the children "I am gonna shoot that bitch [mother] in the head." Mother separated from father after the incident and found a new residence. However, mother continued to allow father to see the children because she did not want to separate them from their father. After the most recent incident, father came to mother's home and saw Jae. outside the residence.
Mother said she and father had "gotten into it" in the past, and that father had pulled a gun on her a couple of times. Mother reported that father had two firearms. She also described a 2011 incident when father pushed her and broke her tailbone. The February 2019 incident was the first time father acted violently in the children's presence. She stated: "His frustration is with me and not his children. I can't say he wouldn't do anything to me but to my kids, I don't think he would hurt my kids. I don't know because he has turned into someone different."
Mother said she thought she had done the right thing by calling the police and felt she was being blamed for father's actions. She was frustrated that father had not been supporting the children financially since she and father separated, and she said the children were struggling emotionally because they missed their father. She said she too was struggling because she had not expected her marriage would end and her husband would abandon his children. On March 13, 2019, she obtained a restraining order against father in his criminal proceeding.
Father described mother as a bully and said he was "low-keyed scared of her and she knows it." According to father, mother regularly checked his phone and the phones of the children to be sure the girls did not call him. He said mother had showed up at his workplace several times, and he described mother as verbally aggressive with him in public. He also said mother had gone to his criminal court hearing, apologized for having him arrested, and offered to help him pay bail and the bills associated with his criminal case.
Father denied threatening to shoot mother in 2018, saying it had been "a dream." He also denied threatening mother with a gun on February 14; he said he was wearing his gun holster when he entered mother's home, but his gun was locked in the trunk.
The family has had periodic contact with DCFS since 2006. The family received voluntary family maintenance services in 2006 and 2007, when Jae. was three years old. In April 2007, Jae. and her older siblings were removed from parents after mother tested positive for marijuana and ecstasy, and in June 2007, the juvenile court sustained a petition alleging that mother and father had histories of substance abuse and were currently abusing drugs. In 2013, mother admitted using marijuana throughout her pregnancy with Jan., who was born seven weeks early. In 2016, DCFS received a report that mother had sought treatment at a hospital emergency room after being injured in a fight with her adult daughter, and in September 2018, DCFS received a report that father choked mother in the children's presence. Except as indicated, DCFS deemed the prior reports inconclusive.
B. Petition and Detention
On March 22, 2019, DCFS filed a juvenile dependency petition alleging jurisdiction over Jae. and Jan. pursuant to section 300, subdivisions (a) and (b). The petition alleged that on February 14, 2019, father forced his way into mother's home by breaking her front door and threatening mother with a firearm in the presence of the children. Jae. attempted to intervene by stepping between her parents. On a prior occasion in 2018, father threatened to shoot mother in the children's presence. Father's violent conduct and mother's failure to protect the children from his violence was alleged to place the children at risk of serious physical harm.
On March 25, 2020, the children were ordered detained from father and released to mother under DCFS supervision.
C. Jurisdiction and Disposition
At the May 21, 2019 jurisdiction and disposition hearing, DCFS asked the court to sustain the petition as pled, noting that father previously had broken mother's tailbone, choked her, and threatened to kill her. In light of this history, DCFS urged, mother ought not "to be sending the kids off with this man." DCFS recommended that the children remain with mother, and that father have monitored visits.
Father's counsel asked that the petition be dismissed, contending the case belonged in family court, not juvenile court. Mother's counsel asked that mother be stricken from the petition because she did not fail to protect the children, but instead tried to get away from father and called the police.
The court sustained the petition as pled. It explained: "The court has read and considered the exhibits submitted into evidence and finds there's ample evidence to support the (a)(1) and (b)(1). There was extensive history of domestic violence and threats and serious risk being posed by a father toward [the] mother and the children. [In t]his incident, [the] child was if not in the line of fire close by a deadly weapon. And these facts strongly support each of the allegations. And therefore, based on the evidence, which I think has more than adequately met the burden of proof, [the] court sustains the petition as pled."
As to disposition, the court declared the children juvenile court dependents and ordered them to remain released to mother. It directed mother to enroll in individual counseling and a domestic violence support group for victims, and it ordered father to enroll in a 52-week domestic violence program, a parenting class, and individual counseling to address domestic violence and anger management. Father was granted six hours of monitored visitation with the children each week.
Mother timely appealed from the jurisdiction and disposition findings and orders.
DISCUSSION
Mother contends substantial evidence does not support the juvenile court's jurisdictional findings as to her—namely, that she failed to protect the children from father's violent conduct. As we discuss, the claim is without merit.
I.
Justiciability
Although the juvenile court sustained allegations concerning both mother and father, mother challenges the findings only as to her. Before we address mother's contentions on the merits, therefore, we must decide whether we can provide " 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.)
Because mother has not challenged the jurisdictional findings against father, those findings will not be reversed regardless of the outcome of this appeal. As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings. (In re M.W. (2015) 238 Cal.App.4th 1444, 1452; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Nonetheless, we retain discretion to consider the merits of a parent's appeal "when the finding '(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) "could have other consequences for [the appellant], beyond jurisdiction" [citation].' (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763; see also In re D.C. (2011) 195 Cal.App.4th 1010, 1015; In re Anthony G. (2011) 194 Cal.App.4th 1060, 1064- 1065.)" (In re M.W., at p. 1452.) Because the jurisdictional finding against mother may prejudice her in future matters, we will exercise our discretion to consider the merits of this appeal.
II.
Substantial Evidence Supports
the Findings Against Mother
A. Legal Standards
Section 300, subdivisions (a) and (b), provide that a child is within the jurisdiction of the juvenile court if the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness "inflicted nonaccidentally upon the child by the child's parent or guardian" (subd. (a)), or "as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child" (subd. (b)(1)). DCFS has the burden of proving by a preponderance of the evidence that the children are dependents of the court under section 300. (§ 355, subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.)
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "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 Heather A. (1996) 52 Cal.App.4th 183, 193.) "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.] ' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." ' [Citation.]" (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)' " (In re I.J., supra, 56 Cal.4th at p. 773.)
B. Analysis
Mother contends that DCFS did not meet its burden to show that the children were persons described by section 300, subdivision (a), because they were not injured during the February 2019 domestic violence incident. She urges: "Since the children suffered no physical harm, and had not in the past, they did not meet the statutory criteria under which the juvenile court could find substantial risk of serious future physical injury."
Mother's contention is without merit. It is well established that domestic violence between parents, even without more, puts children at risk of serious physical harm. (E.g., In re E.B. (2010) 184 Cal.App.4th 568, 576 [" '[D]omestic violence in the same household where children are living . . . is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.' [Citation.] Children can be 'put in a position of physical danger from [spousal] violence' because, 'for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg. . . .' "]; In re Heather A., supra, 52 Cal.App.4th at p. 194, overruled on other grounds in In re R.T. (2017) 3 Cal.5th 622, 628 ["domestic violence in the same household where children are living is neglect; it is a failure to protect [children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it"].) Here, the children not only were present when father pointed a loaded gun at mother, they were in the gun's path when Jan. ran towards mother and pulled on her dress, and Jae. tried to pull father away from mother. The risk to the children from a violent and volatile encounter of this kind is manifest.
Moreover, our Supreme Court has expressly rejected mother's contention that a juvenile court may not find that a child is at substantial risk of suffering serious physical harm if she has not suffered injury. The Supreme Court has said: "[S]ection 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivisions at issue here require only a 'substantial risk' that the child will be abused or neglected. The legislatively declared purpose of these provisions 'is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.' (§ 300.2, italics added.) 'The court need not wait until a child is . . . injured to assume jurisdiction and take the steps necessary to protect the child.' (In re R.V. (2012) 208 Cal.App.4th 837, 843.)" (In re I.J., supra, 56 Cal.4th at p. 773, second italics added.)
Mother also contends that substantial evidence did not support the juvenile court's finding as to her because she took actions to protect the children—namely, by separating from father after the September 2018 incident and abiding by DCFS's safety plan after the February 2019 incident. In so contending, mother misapprehends our standard of review. "Under the deferential substantial evidence standard of review, findings of fact are liberally construed to support the judgment or order and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings. [Citation.] 'A single witness's testimony may constitute substantial evidence to support a finding. [Citation.] It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility.' " (Powell v. Tagami (2018) 26 Cal.App.5th 219, 231.)
In the present case, although there is evidence from which a trier of fact could have concluded that the children were not at risk of harm as a result of mother's conduct, "the test on appeal is not whether substantial evidence supports a finding the appellant wishes the court had made but rather whether substantial evidence, contradicted or not, supports the conclusions the court did make." (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925, italics added.) Here, there was evidence that mother remained in a relationship with father despite years of domestic violence between them, thus creating a risk that the children would be harmed during one of those incidents. Even after mother separated from father in August 2018, she gave him her new address and allowed father to come to her home to pick up the children, creating the opportunity for a violent encounter between them. Finally, as DCFS notes, mother continued to allow father unsupervised access to the children, even though she acknowledged she could not be sure he would not hurt them.
Our analysis is not intended in any way to suggest that mother is responsible for father's violence—he, and he alone, bears responsibility for his violent outbursts. Further, mother unquestionably has taken significant positive steps to protect the children, including by ending her relationship with father, moving out of their shared home, and following DCFS's safety plan. But mother's positive actions did not preclude the juvenile court from finding that some of her other actions put the children at risk of harm. We therefore affirm the juvenile court's jurisdictional findings.
DISPOSITION
The jurisdictional and dispositional findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.