Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK 84691, Robert L. Stevenson, Juvenile Court Referee.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White Svec, Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
Luis H. the father of minors Celina, Brian and Susana, appeals from the order declaring the children dependents and sustaining the Welfare and Institutions Code section 300, subdivision (b) petition. Father contends the order removing the children from his custody must be reversed because the court did not order removal and the finding on the only allegation naming him was not supported by substantial evidence of current risk of harm to the children. We affirm as modified by striking the portion of the order removing the children from father’s custody.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Detention
The family came to the attention of Los Angeles County Department of Children and Family Services (Department) on April 9, 2010, after an incident in which Veronica, the mother of the children, was intoxicated, throwing things and screaming and crying in the presence of the children. Mother admitted attacking father, who sustained a scratch to his eye. Law enforcement was called. Mother agreed to participate in voluntary family maintenance services and to enroll in an outpatient alcohol program.
The Department interviewed the family in May. Mother and father acknowledged emotional abuse was a problem in their relationship and agreed to take corrective action, including attending an alcohol program, random alcohol testing, participation in family preservation services, parenting classes and counseling to address case issues. Mother and father were no longer living together. Father stated he could not take care of his children and preferred mother receive the help she needed to assure the safety of the children. Mother said she would participate in services in order not to lose her children. The family’s preservation worker had not observed any visible signs of neglect or abuse.
On September 30, mother had a positive toxicology screen for alcohol. The case manager at mother’s substance abuse program told the Department that mother had reported she had relapsed. During a family preservation meeting in October, Celina stated mother had relapsed on September 29 and 30 and October 1 and 3. Celina stated that she had been responsible for her siblings when mother went out to drink and that she was no longer willing to care for her siblings while mother was trying to recuperate from drinking the night before. Mother had been drinking in the presence of Brian and Susana.
Father was unable to care for the children due to his current housing situation; he rented a room in a shared apartment with limited space. Father had a history of unstable housing. Father had engaged in past domestic violence altercations and emotional abuse against mother. The Department was concerned that although father and mother were separated and living apart, they were communicating better and father continued to insist that he wanted to return to the family home so he would not have to continue paying child support. Father discussed his issues with mother and child support payment issues with the children and asked them about mother’s boyfriend.
In October, the Department held a team decision making meeting with the parents. The parents agreed to a safety plan under which the children would remain in the home of mother while mother received family maintenance services. Mother was to re-enroll in a substance abuse program. The family would attend family counseling until individual counseling was available. If mother relapsed, she was to call father or other family to ensure the children were taken care of appropriately. Father was to participate in parenting classes and anger management and not to discuss case issues with the children. If father had any safety concerns, he was to call the child abuse hotline.
Celina stated, “‘I am tired of having to take care of my brother and sister because [mother] doesn’t feel well after having drinks and she is not herself.’” Susana stated, “‘My mom drinks with her friends at their house when they have a party.’” Father stated he was willing to offer support so the children would not have to be detained.
On October 18 the Department filed a section 300 petition on behalf of the children. The petition alleged, in part, that the children had been exposed to a violent confrontation between mother and father and mother had a history of alcohol abuse, was a current abuser of alcohol and remedial services had not resolved the family’s problems. The juvenile court found a prima facie case, detained the children from father and released them to mother pending the next hearing. The court ordered family preservation services and ordered the Department to provide mother and father with low cost and/or no cost referrals for individual counseling to address domestic violence. The court ordered father could have unmonitored visits, but mother could not be present.
II. Jurisdiction/Disposition
A. November Department Report
Celina stated she was aware mother had hit father on his face because she had taken her siblings outside of the room where the altercation was occurring to prevent them from witnessing the violence. Celina said, “‘[Father] told me about it, but I knew it (domestic violence) was happening. I always took the children in the room because I did not want them to see the fighting.’” When asked if she was afraid during her parents’ physical confrontations, Celina replied, “‘More for the children and not for me. When Susana cried I had to comfort her and calm her down so she could go to sleep.’”
Celina stated she was in charge of watching the children when mother drank alcohol or else mother would take them with her when she went out. Mother usually returned home around 1 a.m. When asked if father could provide care for her and her siblings, Celina replied that everything was now fine at mother’s house and mother was not drinking alcohol.
Brian reported his parents fought sometimes though “‘not now’”; his parents fought because mother was drinking alcohol; Brian saw mother hit father “‘[a] lot.’” When asked how he felt when his parents fought, Brian replied, “‘I thought my mom was going to kill my dad.’” Brian disclosed that “‘When we were living in the other home, my dad wanted to come in and my mother did not want him to come in. She closed the door on him while he was attempting to get in and his fingers got stuck in the door because my mom did not want to let him in.’” Brian said Susana was afraid when his parents fought and sometimes she cried; “‘I hugged her so that she would not be afraid.’” Brian and Celina used to take care of Susana when mother went out. Brian said mother “‘told us not to go out and nothing ever happens because I know I have to take care of my sister.’” Brian did not know if father could care for him and his sisters, but he stated they were all doing fine at home with mother.
Susana reported it was common for the parents to fight and the parents used to fight when they drank beer. Susana said the fighting made her feel “‘[a]fraid, I cried on my bed and my brother gave me a hug and a kiss.’” Susana stated mother hit father with her hands when she was wearing rings. The last time mother had a beer was, “‘One year, my dad was drinking too.’” Susana did not know whether or not father could care for her.
Mother admitted she and father used to argue and overlook the fact the children were present; they argued about once a month. Mother denied throwing objects at father, but admitted she had tried to scratch him. Mother acknowledged the domestic violence incidents had occurred when she was drinking alcohol, but she denied currently using alcohol. Mother reported father could not provide care for the children because he did not have the patience to care for them. Mother stated she and father had been separated for about three years and he helped her financially.
Father stated that when he and mother had only their first daughter, they did not argue as much and had fewer problems. Father claimed mother started changing when he told her, around 1993, soon after their marriage, that he did not want to have “intimate relations” with her. The last domestic violence incident happened about seven months ago; the children had telephoned him to tell him that mother was out of control and had broken several items in the house. Father went over and comforted mother, but when he was about to leave, mother began hitting him. Father, who claimed the domestic violence occurred about every other month, confirmed the children had witnessed the altercations.
Father admitted that he and mother used to go out at night and the children used to stay home alone: “‘I have to accept that it was partially my fault. I told my wife I wanted her to dedicate some time to me.’” Father stated he was not used to having the children with him all the time because he was “‘too nervous, I do not think that I can provide care for them. I can put up with them for a little while, but not too long.’” Father stated, “‘The mother is the one that always takes care of the children and she just has more responsibility. I do not think that I could be a mother and father for them. I would have to think twice about it.’”
Father stated: “‘I am not going to work anymore if I am not going to be with my children. I do not want to pay for rent when I can use that money to help raise my children instead of paying rent somewhere else. I should be at their home and use the money for that, otherwise I have to use it to pay rent, on the children. I will work if I am home with them.’” “‘I did not want to have children but I do not like to use protection when I have intimate relations and well, that is the reason, the children came and I said, if god wants he will give us children. I have not taken the decision of separating from her (mother); she continues to be my wife.’”
Father asked the social worker if she could tell him if there was a way for him to get rid of his child support bill. Father stated that if he could not get rid of his child support obligation, he was going to go back to Mexico. If there was a way father could get out of paying child support, then he would continue to live apart from mother, otherwise he was going to return to the family home. Father did not want mother bringing other men into the home because he did not want his “girl” to be in any type of danger. Father thought mother’s problem was not alcohol abuse, but that she was hurt because he had told her he did not want to have intimate relations with her anymore. Father said he was not in love with mother, he was only fond of her and they had married after dating for two years, mostly via telephone as they only saw each other sometimes because he lived in the United States and she lived in Mexico. Father married mother because someone dared him to. Father stated they always had problems in their marriage, but the problems had become severe recently. Father had been unemployed since January 2009.
The Department reported the children appeared to be physically healthy and happy in mother’s home and were attending school.
B. The Adjudication
The court received the Department reports into evidence and listened to argument. The court sustained the petition as amended. With respect to mother, the court sustained the counts alleging mother had a history of alcohol abuse (count b-1), left the children home alone for long periods of time (count b-2) and domestic violence (count b-3). The court indicated it believed mother still had “issues” concerning domestic violence; it did not think the risk had been mitigated.
With respect to father, the court sustained count b-3, which alleged the children had been exposed to a violent confrontation between mother and father and such a violent altercation endangered the children’s physical and emotional health and placed them at risk of harm. Regarding count b-3, the court noted:
I think there is a risk of domestic violence there. I think there has been a history. The children have seen the domestic violence at the time when Celina tried to take the children into the bedroom so they wouldn’t see it. [¶] But they talked about that there was a lot of domestic violence in the home and may have ended some time in April. But I’m not convinced that they have done anything to show me today that there is not a current risk of domestic violence.
The court declared the children dependents pursuant to section 300, subdivision (b), and ordered them placed in the home of mother under Department supervision. The court ordered continued family maintenance services for mother and family reunification services for father. The minute order reads “custody is taken from father.” (Emphasis deleted.) The court further ordered father could have unmonitored visits as arranged between the parents.
Father’s attorney stated individual counseling was not affordable for his client, who was unemployed, and requested the court order group domestic violence counseling as that was more affordable. Father admitted he had not started group domestic violence counseling. The Department suggested father be ordered to attend Alanon, which was free of cost. The court then ordered father to participate in a Department approved program of parent education, domestic violence group counseling, and Alanon family group counseling.
Father filed a timely notice of appeal from the jurisdiction/disposition order.
DISCUSSION
I. Removal from Custody Order
Father contends this order must be reversed because removal was never ordered by the court, because the children remained placed with mother and were not removed from him, and because the court used an erroneous burden of proof in adjudicating the only count pertaining to him.
Even though father could not have objected to the order at the hearing as the court did not make an express finding removing the children from his custody, he could have brought the matter to the court’s attention when he received the minute order as part of the appellate record. (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)
Father asserts the removal order must be vacated because the court required the parents to show there was no longer a potential for domestic violence rather than requiring the Department to carry its burden of demonstrating there was a current risk of harm to the children stemming from domestic violence. (See In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.) Father’s position is based on the court’s statement: “But I’m not convinced that they have done anything to show me today that there is not a current risk of domestic violence.” Just prior to that statement, the court observed: “I think there is a risk of domestic violence there. I think there has been a history. The children have seen the domestic violence at the time when Celina tried to take the children into the bedroom so they wouldn’t see it. [¶] But they talked about that there was a lot of domestic violence in the home and may have ended some time in April.” Thus, the court did not employ an erroneous burden of proof, but essentially found the history of domestic violence placed the children at current risk. Accordingly, father’s counsel was not ineffective for not raising this issue.
Under placement findings, the minute order for November 18, 2010, (the order father appeals from) states: “custody is taken from father.” (Emphasis deleted.) Father argues the removal order must be vacated as the court made no such order. At the hearing, the court did not expressly make that finding. Father notes that where there is a discrepancy between a minute order and the reporter’s transcript, the transcript controls. (See People v. Carter (2003) 30 Cal.4th 1166, 1199 [“[W]here the clerk’s and reporter’s transcripts conflict, the latter controls when, under the circumstances, it is the more reliable.”].) However, in the case at bar, there was no conflict between the clerk’s and reporter’s transcripts; rather the minute order contained an additional finding.
Father notes the “court ordered disposition case plan” signed by the court made no mention of removal and the recommendations in the Department’s jurisdiction/disposition report did not mention removal. Citing In re Albert T. (2006) 144 Cal.App.4th 207, 219, father posits it would be inappropriate to imply findings. In Albert T., the court reasoned: “Given the importance of reunification services in the dependency system, we have considerable doubt as to the propriety of implying findings from an otherwise silent record to justify denial of those services, particularly when the Legislature has not only mandated findings by clear and convincing evidence before applying any section 361.5, subdivision (b), exception but also specifically repeated the requirement of court findings with respect to the no-reasonable-efforts prong of subdivision (b)(10).” (Ibid.)
The November 18 order continued the matter to May 19, 2011, for a section 364 review hearing, which is held when a child is not removed from a parent’s custody. Had the court intended to remove the children from father’s custody, it should also have scheduled a section 366.21, subdivision (e) hearing, at which the court has to order the return of the child(ren) unless it finds by a preponderance of the evidence that return would create a substantial risk of detriment to the child(ren). The court not having done so, we decline to conclude or imply the court intended to order the removal of the chidren from father’s custody and agree the portion of the order stating custody is taken from father should be stricken.
II. Substantial Evidence
Father contends that count b-3 was not supported by substantial evidence of any current risk of harm to the children. (See In re James C. (2002) 104 Cal.App.4th 470, 482 [Jurisdictional findings are reviewed for substantial evidence.]; In re Brison C., supra, 81 Cal.App.4th at p. 1379 [“‘While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.’” (Italics deleted.)]; In re Janet T. (2001) 93 Cal.App.4th 377, 388 [There must be some reason to believe the acts may continue in the future.].) As quoted above, the court found the history of domestic violence between the parents placed the children at risk.
Father posits the court might have speculated the parents could be involved in future incidents and asserts there was no substantial evidence of any current risk because the domestic violence incident was over six months old, the parents were living apart and there was no indication either of them wished to reconcile or resume living together, and any contact during visitation was without incident. Father notes the children had not been actually harmed by their parents’ fighting, but the youngest child stated she had been frightened by the fighting and the oldest child had to act in the role of parent to protect and supervise her siblings.
Even though the incident which brought the family to the attention of the Department was over six months old, the record demonstrated that the issue of domestic violence was not a one-time event, but an ongoing occurrence in the relationship between the parents, especially due to mother’s drinking. “[D]omestic violence in the same household where the children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk.” (Italics deleted.) (In re Heather A. (1996) 52 Cal.App.4th 183, 194; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 562.)
Although the parents were living apart, the domestic violence occurred where the children were living. The children had all witnessed the parents fighting, and the parents admitted domestic violence was an issue. Moreover, father indicated to the Department that he wanted to return to the family home so he could avoid his child support obligations. Although the children stated they were fine with mother, she had relapsed during pendency of these proceedings, less than two months prior to the disposition hearing. Father had not attended any domestic violence counseling as he had agreed in the voluntary safety plan. Thus, there was reason to believe domestic violence might occur in the future as the parents had not resolved their problems.
Father argues reversal is required even though mother did not appeal because the babysitting count (count b-2) does not appear to be supported by substantial evidence. Even if father had standing to raise that issue, the court also sustained the petition as to mother based on counts b-1 (mother’s history of alcohol abuse) and b-3 (domestic violence). “The reviewing court may affirm a juvenile court judgment if the evidence supports the decision on any one of several grounds.” (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.).
DISPOSITION
The court is directed to strike the portion of the November 18, 2010, order stating “custody is taken from father.” In all other respects, the order is affirmed.
We concur: PERLUSS, P.J., JACKSON, J.