Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD226928, JD226929
HULL, J.
A.M., mother of minors I.J. and A.J., appeals from the orders of the juvenile court entered at a combined hearing pursuant to Welfare and Institutions Code sections 388 and 364, ordering a change in the minors’ custody from mother to father. She contends the order was not supported by substantial evidence. We affirm the judgment.
Facts and Proceedings
Mother has a 10-year history with the Department of Health and Human Services (DHHS). Her parental rights as to five other children have been terminated due to issues including abandonment, refusal to provide proper care, and mother’s mental health. I.J. was born to mother and father, M.J., in September 2005. A.J. was born to mother and father, M.J., in March 2007.
On December 12, 2007, mother called police and reported that her ex-boyfriend, Bryan Kelly, assaulted her. Officers went to the motel room from which she had called. They saw no visible injuries but advised mother of her options.
On December 20, 2007, mother called the police and reported that Kelly had come to her motel room and punched a hole in the wall. She also stated that he had pushed or hit her head into the wall. Mother did not want to make a report regarding the assault, but only regarding the damage done to the motel room. The following day, Kelly was picked up on a parole violation. Mother called Kelly’s parole officer and asked him to be lenient on Kelly and said she planned to marry Kelly upon his release. Kelly was incarcerated.
On January 15, 2008, DHHS contacted mother, who agreed to sign a safety plan prohibiting Kelly from being around her or the children. At this time, A.J. was four months old and I.J. was almost two-and-a-half years old. On January 23, 2008, DHHS explained to mother that her children were at risk of abuse and neglect. Mother declined informal supervision and the children were taken into protective custody.
In a February 2008 interview with DHHS, mother denied that Kelly had ever assaulted her, and claimed he had “barely pushed her” and caused her to make the hole in the wall. She claimed she had called the police to eliminate an escalating situation.
Mother began participating in services. By April 2008, she had completed a parenting program and had been attending domestic violence/anger management counseling. She was living in a two-bedroom apartment and her visitation with the children had by then been changed to unsupervised. The father, M.J., who lived in Oakland with his wife, also had unsupervised visits.
The jurisdictional/dispositional hearing was held on June 17, 2008. The juvenile court declared A.J. and I.J. dependent children of the court and ordered them placed with mother. Father was to continue to have visits.
Around November 2008, Kelly was released from custody. He moved in with mother’s grandmother and began having contact with mother and the children. DHHS informed mother that continued contact with Kelly would be putting her and the children at risk. Mother informed DHHS that she and Kelly were intending to marry.
One of the conditions of Kelly’s release from custody was that he not have any contact with mother. As a result of his violation of this condition, he was taken back into custody in December 2008. When Kelly was arrested, mother and the children were in the car and Kelly had the children’s Medi-Cal cards in his pocket. Mother stated there was no reason for the no-contact order because the original complaint made against Kelly was erroneous. Kelly was re-released in late January or early February 2009, and the prohibition on his contact with mother was removed from the conditions of his parole. Kelly and mother resumed having contact.
DHHS made a section 388 request for modification of the current orders, requesting the children be removed from mother’s custody and placed with their father, based on the risks to the children due to mother and Kelly’s resumed contact. The hearing on the contested request for modification was held in conjunction with the section 364 hearing, on April 30, 2009, May 1, 2009, and May 5, 2009.
By the time of the hearing, Kelly had attended four or five sessions of a 52-week batterer’s program. He and mother were not living together but were seeing each other. Mother, however, repeatedly refused to say whether she was in a relationship with Kelly at the hearing. Mother did not feel that her relationship with Kelly posed any risk to the well-being of the children. She claimed that the arguments in December 2007 were caused by her conduct and that Kelly never touched her. She now claimed to have called the police because Kelly had refused to agree with her on the subject of their verbal disagreement.
The juvenile court granted the petition for modification, placed the children with their father with visitation to mother, and terminated dependency. Mother profanely swore at the court and left the courtroom with Kelly prior to the conclusion of the hearing.
Discussion
Mother contends there is insufficient evidence to support the juvenile court’s finding by clear and convincing evidence that there would be a substantial danger to the physical or emotional well-being of the children if not removed from her home. We disagree.
At the hearing on a Welfare and Institutions Code section 388 petition for modification, the party requesting the modification has the burden of proof. (Cal. Rules of Court, rule 5.570(h); In re Amber M. (2002) 103 Cal.App.4th 681, 685.) If the request is for removal of the child from a parent’s home, the hearing is to be conducted in the same manner as a dispositional hearing, and the petitioner “must show by clear and convincing evidence that the grounds for removal in [Welfare and Institutions Code] section 361(c) exist.” (Cal. Rules of Court, rule 5.570(h)(1)(A).) Section 361, subdivision (c), provides that a child may be removed from the parent’s home where, inter alia, there would be a substantial danger to the physical or emotional well-being of the child if not removed from the home. (Welf. & Inst. Code, § 361, subd. (c).) On review, we must determine whether the record contains substantial evidence for the juvenile court to make this finding by clear and convincing evidence. (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284-285; In re Basilio T. (1992) 4 Cal.App.4th 155, 169-171.)
In arguing that the risk to the minors was ameliorated, mother emphasizes that she had completed her domestic violence/anger management classes. The evidence, however, suggests that mother’s completion of these classes did little to eliminate the risk to the minors. Mother completed her anger management classes on July 12, 2008. Yet, on January 26, 2009, she struck I.J. during a visit when he ran from the room to use the bathroom and set off an alarm. Thereafter, on February 5, 2009, she threatened the father during a telephone conversation. On February 15, 2009, she cursed at and threatened the visitation monitor who had reported that mother had struck I.J. during the visit. And as if the court needed any more evidence of mother’s continuing inability to control her anger or exercise the restraint that supposedly she had learned in her anger management classes, she chose to swear at the trial judge during the hearing and leave the courtroom before its conclusion.
Mother also continued to minimize Kelly’s prior abuse. Mother initially reported in December 2007 that Kelly had assaulted her on two occasions, one in which Kelly had pushed or hit her head into a wall. She later claimed that Kelly had “barely pushed her,” not hit her. By the time of the last hearing, she claimed Kelly never touched her and the hole in the wall had been made by her hip when she was leaning against it. Moreover, she not only believed Kelly was no risk to the minors’ safety, she did not even understand why her relationship with Kelly was relevant to the safety of the minors.
In arguing that the risk had been eliminated, mother also emphasizes the fact that the reported domestic violence between mother and Kelly was “a year and a half earlier” and there had been no further reports of domestic violence between them. Kelly, however, had been incarcerated for all but, at most, six months of that time and has a prior history of domestic violence with his ex-wife. In her reply brief, mother states that Kelly was out-of-custody for over a year of the 18 months between the originating domestic violence and the April 30 to May 2, 2009 hearing. The record, however, reflects that mother called the police on December 20, 2007, and Kelly was picked up on the following day. Kelly was incarcerated. He was released in “late 2008” (reported to the social worker on November 12, 2008) and reincarcerated in December 2008. He was not released again until either January 26, January 28, or February 2, 2008.
Immediately upon Kelly’s release in February 2009, he was accusatory and threatening on the telephone with the social worker. And at the time of the hearing, he had attended only four or five classes of his 52-week domestic violence/batterer’s program.
Finally, mother argues that there was no risk to the minors because there was no evidence that she was living with Kelly. Certainly, individuals need not be living together to engage in domestic violence. Indeed, mother and Kelly were not living with each other in December 2007, when the previously reported domestic violence occurred. They were not even dating. At the time of the hearing, however, mother and Kelly did, as the juvenile court reasonably found, have an ongoing relationship. Although mother refused to answer questions directly on the matter, Kelly admitted they still saw each other, and mother had stated a few months earlier that she intended to marry Kelly. The fact that Kelly may not be cohabitating with mother does not eliminate the risk that the minors would be exposed to their domestic violence.
Exposure to domestic violence places minors at risk, even when the violence is not directed specifically toward them. (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) Here, there was little evidence to establish that mother had addressed the domestic violence risk at all, let alone evidence that she would protect the minors from exposure to it. Substantial evidence supports the juvenile court’s finding that the minors would be at risk of such exposure if they were in mother’s custody.
Disposition
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P. J. BUTZ, J.