Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Valerie L. Skeba, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK75246.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant L.L. (mother) appeals from an order removing her daughter, A.L. (the minor, born Aug. 2007), from her custody pursuant to Welfare and Institutions Code section 361. Because the juvenile court’s order is supported by substantial evidence, we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition and Detention Report
This family consists of R.L. (father), mother, and the minor.
Father is not a party to this appeal.
On October 28, 2008, the Department of Children and Family Services (DCFS) received a referral indicating a history of domestic violence between father and mother. The most recent incident occurred on October 19, 2008, when father became angry and punched mother in the face, head, and arms multiple times. Mother sustained three cuts on her lips and bruising on her face and arms. Law enforcement was called, and father fled the scene.
Following the referral, DCFS social worker Belinda Marquez (Marquez) went to the family home, but no one was home. She left a voicemail message for the family and left a business card on the door of the home.
Later that same day, Marquez spoke with a legal advocate for the YWCA Wings program. The advocate advised Marquez that she had assisted mother with preparing a temporary restraining order against father, and that the hearing on the restraining order was set for November 10, 2008. The advocate also stated that mother intended to remain in the family home and that she would seek a “move-out” order against father.
After several attempts, Marquez finally reached mother by telephone. Mother confirmed that she had received Marquez’s business card but had neglected to call her. Mother agreed to meet Marquez the following day. She assured Marquez that she and the minor had not had any contact with father since the last domestic violence incident on October 19, 2008. But, mother then stated that she did not want to pursue criminal charges against father and that, as of October 28, 2008, she had lifted the temporary restraining order against him.
The following day, mother was not at home when Marquez arrived for the scheduled appointment. She knocked on the door several times and called the home telephone number. Although no one answered, the social worker noted that there were two vehicles parked in the driveway.
Marquez then proceeded to the City of Industry Sheriff’s station, where she learned that there was a report taken on October 19, 2008. Father had not been arrested because he fled the family home prior to the deputies’ arrival. He was, however, expected to appear at the station on November 4, 2008, at which time he would be arrested.
Next, Marquez telephoned father on his cellular telephone number. He informed her that mother and the minor resided in the family home. He stated that he also lived there, but that he had not been home since the October 19, 2008, incident. He refused to discuss the details of what had occurred on October 19, 2008.
Marquez telephoned the family home on October 31, 2008, again with no success. She then called father and informed him that mother was not cooperating and that, if necessary, she would detain the minor in order to protect her. Shortly thereafter, mother called Marquez. Mother explained that she was not at the family home and that she had missed her appointment with Marquez because she was meeting with a cousin. She made a new appointment for November 3, 2008, at DCFS’s offices.
Mother appeared for the appointment. She informed Marquez that she met father in Mexico, married him, and they moved to California, all in 2006. The couple’s first incident of domestic violence occurred in July 2007, when mother was seven months pregnant. Father became upset when a fellow student, a male, drove her home from class. They argued, and then father punched mother in the face with a closed fist, more than once. She sustained bruising and internal bleeding to her right eye and several cuts on her lip. She did not call the police or seek medical attention.
The second incident occurred in July 2008, when the minor was approximately 11 months old. Mother and father got into a verbal altercation. Father told mother to leave the house and pushed her outside, causing her to fall. At the time, father was holding the minor in his arms. Again mother did not call law enforcement.
The most recent incident occurred on October 19, 2008. Mother described the incident as follows: Before father left the home for work, his adult nephew arrived at the home, intoxicated. Mother wanted the nephew to leave the home and father refused to kick him out. When father left for work, she and the minor had no food to eat and father did not leave mother any money to buy food.
That evening, father arrived home from work and was about to eat soup, the only thing in the house to eat. Mother became upset and told father not to eat the soup because she and the minor were going to eat it. Mother and father began arguing, and mother pushed father. Father pushed mother back, causing her to fall. Father proceeded to walk out of the room and mother elbowed him in the stomach. Father reacted by punching mother with a closed fist on the head, face, and arms numerous times. Mother sustained a large cut on her head that was bleeding and required medical attention. She also sustained bruising to her right eye, a busted lip, and bruising to her left arm.
Mother then locked herself in a room and telephoned the police. Father overheard mother’s telephone call and fled, leaving the minor in the living room. The police arrived, photographed mother’s injuries, and then took mother to the hospital for treatment.
Mother confirmed that she originally sought a restraining order against father. However, on October 28, 2008, she requested that the restraining order be lifted because father told her that he was going to change and that it would not happen again; she believed him. She also stated that “‘everybody deserves a second chance.’”
Marquez informed mother that she could go to a domestic violence shelter with the minor, but mother refused, stating that she did not want to leave father. She did not believe that the minor was in danger. He never abused the minor and loved her very much. She said: “‘He is going to change because he loves his daughter very much and she [cannot] be without her father.’” Mother refused to get a restraining order.
On November 4, 2008, the City of Industry Sheriff’s Department informed Marquez that father had been arrested that morning and was being charged with willful infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)).
Based upon the foregoing, DCFS decided to detain the minor.
At the November 6, 2008, detention hearing, the juvenile court detained the minor. Furthermore, it denied mother’s request that the minor be released to her, noting: “I am not sure that she understands the seriousness of the situation.”
Jurisdiction/Disposition
DCFS reinterviewed mother on January 5, 2009. She reported that she had not seen father since the October 19, 2008, incident. She recanted her prior statement that father had hit her in the 2007 and 2008 incidents. This time, according to mother, father had only pushed her on those two occasions; although she fell, she did not suffer any pain.
Although the parents claimed that they had not seen each other, another DCFS social worker made an unannounced visit to the home on December 31, 2008, and saw father’s vehicle in the driveway. This social worker believed that the parents minimized the domestic violence in their relationship.
Attached to the jurisdiction/disposition report was a copy of the police report of the October 19, 2008, incident. The report confirmed father’s acts of violence to mother. Moreover, at that time, mother informed the Sheriff’s deputies that father had abused her before, but she did not report the incidents to law enforcement because father threatened that she would be deported. She told the Sheriff’s deputies that she wanted father prosecuted.
At the January 12, 2009, hearing, mother submitted to the allegations of the section 300 petition. Allegation b-1 of the petition was sustained: “The [minor’s parents] have a history of engaging in violent physical altercations. On or about 10/19/08, the mother sustained physical injuries, including bleeding and lacerations on her face as a result of such altercations. Further, father was convicted in criminal court for Inflicting corporal Injury on a spouse from said incident. Such violent altercations on the part of Father against mother endangers the child and places the child at risk of harm.”
The case was continued for disposition.
Continued Disposition Hearing
In its last minute information for the court, DCFS advised the juvenile court that it attempted to contact mother regarding father’s car being seen at her home and to obtain updated information regarding mother’s domestic violence program. DCFS was unable to speak with mother because her telephone was no longer in service. The same was true for father’s telephone.
The foster mother reported that father had told her that he continues to live with mother in the same residence and: “‘No one will ever separate us and the Judge is the only one that knows that we live together and the Judge is okay that we are living together. Plus, we are getting [our] little girl back on the next court date.”
The social worker did not believe that the parents were “taking any measures to resolve the domestic violence issues that brought them to the attention” of DCFS “and led to the removal of their child. The parents continue to live together, per the father’s comments to the foster mother and have not informed [DCFS] of any progress with their programs.” Therefore, DCFS recommended that the minor remain suitably placed in foster care.
At the disposition hearing on February 3, 2009, father’s attorney indicated that father was parking his car and was on his way to the courtroom. DCFS’s reports were admitted into evidence. Father’s counsel objected to the statements in the last minute information for the court, and the juvenile court indicated that it was not going to give that document very much weight.
Mother testified. She stated that she was four months pregnant, and that father was this baby’s father as well. She testified that since first going to court in November 2008, father had not spent a single night at the family home. In fact, he had never gone to the home when she was present. The reason his car was in the driveway was because she and father had been unable to pay for their automobiles and they were being repossessed by the dealer. According to mother, the cars could not be used.
She stated that she would not let father into the home; if he appeared at the front door, she would call the police. She was willing to move out of the family home and move in with a relative (whose address was “[n]ot exactly” known to father) in order to have the minor returned to her custody.
Regarding what mother had done to address the underlying domestic violence issues, mother stated that she had attended five individual counseling sessions; she also had participated in domestic violence counseling and parenting classes. She learned “that a woman should never allow herself to be mistreated like that by men. First, she must protect the children. And before forgiving the husband—before returning to the husband, the children are first.”
Mother admitted that she did not currently have a restraining order against father. She testified that she would be willing to obtain another restraining order to protect the minor.
Finally, mother stated that father had made no attempt to see her.
After entertaining oral argument, the juvenile court noted that mother had “made some good efforts to start to address the problems. But I have a lot of concern. This was a case where the—the domestic violence initially occurred when the mother was pregnant with [the minor]. [¶] There were at least two other ones that she initially told us—told the social worker—the emergency response worker about that were pretty significant, where she was being hit multiple times and knocked down. She sort of backtracked from that and, I think, really minimized what exactly happened. [¶] She chose not to proceed on the restraining order. While it isn’t a requirement, on top of the minimization, it does give me concern that she really had no intention of keeping away from the father. And, certainly, their cars being parked at the address also on New Year’s Eve gives me some concern as well. [¶] So I think the mother has made a start. But I think she really has not begun to grapple with the issues involved in domestic violence. I’m not at all convinced that she is really willing to separate from father. [¶] And I’m concerned that the father, apparently, is around here somewhere and hasn’t come into the courtroom. He was in the parking lot.... He’s not around. And I think that’s very odd.”
Thus, the juvenile court found by clear and convincing evidence that a substantial danger existed to the minor’s physical and emotional health and safety and no reasonable means existed to protect the minor without removal. The minor was ordered suitably placed. The juvenile court further ordered DCFS to check out mother’s cousin to determine whether the minor could be returned to mother in the custody of that cousin.
Mother’s timely appeal ensued.
DISCUSSION
I. Applicable Law and Standard of Review
Section 361, subdivision (c)(1), provides, in relevant part, that in order to remove a child from her parents, the juvenile court must find by clear and convincing evidence that: “There 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 parents’... physical custody.” (§ 361, subd. (c)(1).)
We review the juvenile court’s order for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
II. Substantial Evidence Supports the Juvenile Court’s Order
The evidence submitted at the disposition hearing indicates that the parents have a history of domestic violence. Specifically, mother informed law enforcement and DCFS of at least three incidents of father’s abuse, including the most recent incident on October 19, 2008, at which time the police were called and mother required treatment at a hospital. Undeniably, exposing the minor to domestic violence constitutes a risk of harm to her. (In re Heather A. (1996) 52 Cal.App.4th 183, 195–196; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562; In re S.O. (2002) 103 Cal.App.4th 453, 462.) And, the minor was particularly at risk here given mother’s recantation and minimization of the prior incidents of the abuse father inflicted upon her.
Moreover, mother did not follow through on adequate steps to protect herself or the minor. She refused Marquez’s offer to help her move to a domestic violence shelter. Although she initially obtained a restraining order against father, within two weeks of his most recent attack upon her, mother requested that the restraining order be lifted. While mother testified at the disposition hearing that she would obtain a restraining order if necessary, the juvenile court was free to disbelieve her. (In re Casey D. (1999) 70 Cal.App.4th 38, 52–53.) After all, it took Marquez about a week to meet with mother, in spite of making numerous telephone calls and at least one appointment with mother that mother failed to attend. And, tellingly, mother had previously informed the social worker that she did not want to leave father, that she believed father would change, and that she believed everyone deserved a second chance.
Furthermore, ample evidence indicates that mother had decided not to separate herself from father. Although mother denied that she had seen father, both of their cars were seen in the driveway of her home. While mother explained that the cars were there because they were not being used and were going to be repossessed, the juvenile court was free not to believe mother’s explanation. (In re Casey D., supra, 70 Cal.App.4th at pp. 52–53.)
Mother argues that other reasonable means existed by which the minor’s physical health could have been protected, namely she could have lived with mother in the home of mother’s cousin. However, the mere fact that mother could have lived with her cousin does not compel the conclusion that the minor would have been protected. And, as the juvenile court pointed out, although the parents had been in and out of the courtroom on multiple occasions, the first time mother made the juvenile court aware of this cousin was the date of the disposition hearing. Under these circumstances, it was reasonable for the juvenile court to instruct DCFS to investigate whether the cousin was “really available to take care of the” minor and revisit the issue at a subsequent hearing date.
Mother’s reliance upon In re Steve W. (1990) 217 Cal.App.3d 10 is misplaced. In that case, the juvenile court ordered an infant removed from the physical custody of his mother because of the slaying of the infant’s five-year-old half brother committed by the infant’s father. (Id. at p. 12.) The Court of Appeal reversed, finding that she was not present when the prior injuries to the half brother occurred, she made inquiries concerning their nature, she assisted in the prosecution of the father for the murder, and she expressed a desire never to have anything to do with the father. (Id. at pp. 21–23.) In contrast, the evidence here indicates that mother does not completely understand the seriousness of the problem that led to DCFS intervention; and, mother had not demonstrated a commitment to stay away from father until the domestic violence issues are completely resolved.
Similarly, In re Henry v. (2004) 119 Cal.App.4th 522 is unavailing. In that case, the Court of Appeal reversed a removal order because (1) the physical abuse suffered by the child was a single occurrence that neither the social services agency nor the juvenile court considered to be an obstacle to reunification, and (2) the juvenile court did not consider the existence of alternatives to out-of-home placement. (Id. at p. 529.) In contrast, there have been at least three instances of domestic violence here. And, unlike the evidence presented at the hearing in In re Henry v., supra, at pages 529–530, there was no evidence presented that in-home services may have been appropriate.
Finally, mother argues that the juvenile court’s order must be reversed because the juvenile court failed to “explicitly state that there were no reasonable means to protect the child’s physical health without removing her from her mother.” We cannot agree. At the hearing, the juvenile court stated “that substantial danger exists to the minor’s physical and emotional health and safety.” Moreover, both the minute order and the juvenile court’s comments made at the disposition hearing indicate that it found by clear and convincing evidence that no reasonable means existed to protect the minor short of removal.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: BOREN, P.J., CHAVEZ, J.