Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Randolph Hammock, Temporary Judge.
Pursuant to California Constitution, article VI, section 21.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
CROSKEY, Acting P. J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), I.S., Mother of the subject minor children (Mother), appeals from a disposition order that removed the minors from her custody and placed them with their father Jesus S. (Father) pursuant to a home of parent order under the supervision by the Los Angeles County Department of Children and Family Services (the Department). Mother contends there was insufficient evidence to support the dependency court’s findings that there is a substantial risk that the minors will suffer serious physical harm due to Mother’s permitting her boyfriend (or former boyfriend, it is not clear), who is a known gang member, to keep drugs in the home she shared with the minors and him, and a substantial risk the minors will suffer harm due to the boyfriend’s violence against Mother. Mother also contends there was insufficient evidence to support the court’s disposition order whereby it removed the minors from her care. Our review of the appellate record convinces us that substantial evidence supports both the dependency court’s jurisdiction findings and its disposition order.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
BACKGROUND OF THE CASE
1. The Dependency Petition
The minors in the case are Clara S., Christian S. and Brenda S. At the time the section 300 petition was filed they were 14, 13 and 9 years old, respectively, and were living with Mother in an apartment in Canoga Park. Mother’s boyfriend, Hector, was also living in the family home.
The section 300 petition in this case alleges two counts under subdivision (b) of that section. Count one alleges that Mother established a detrimental home environment for the minors that endangers their health and safety in that on March 24, 2010, cocaine, methamphetamine and marijuana were found in the minors’ home within their reasonable access, and Mother knew or should have known that the drugs were present in the home within the access of the minors. Count two alleges Mother and Hector engaged in a violent altercation in the presence of minors Clara and Brenda during which Hector placed a knife against Mother’s throat and refused to permit Mother and the minors to leave the home; this violent conduct by Hector endangers the minors’ physical and emotional health and safety; Mother failed to take responsibility and timely action to protect the minors from domestic violence; and this failure constitutes a current and substantial risk that the minors will suffer serious physical harm.
Subdivision (b) of section 300 provides in relevant part that a child comes within the jurisdiction of the dependency court when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.” Subdivision (b) contains an admonition that a child continues to be a dependent child under that subdivision “only so long as is necessary to protect the child from risk of suffering serious physical harm or illness”
On March 26, 2010, the dependency court detained the three minors from Mother’s care and released them to Father. A jurisdiction hearing was scheduled for April 28, 2010.
2. The Various Reports
Much of the background of this case depends on what report one reads, specifically, the two police reports, the Department’s detention report, and its jurisdiction/disposition and interim reports. What does appear to be consistent in the reports is that Mother and minors, Clara and Brenda reside in an apartment and Hector stayed there with them some or all of the time. They all shared the same bedroom. Mother and Hector shared a bed, and the girls use bunk beds situated next to that bed. Minor Christian was living with the children’s father, Jesus S. (Father), because he was having problems at school.
a. Police Reports
According to a police report for March 15, 2010, taken at 10:45 p.m., Mother went to the Los Angeles Police Department’s Topanga Division and spoke with the desk officer. Mother related that she and Hector have lived together for eight years but are not married. Mother stated that on the previous day at approximately 3:00 p.m., she and Hector were arguing because he believed Mother had cheated on him, and during that argument he pressed a six-inch pocket knife against her throat and told her he was going to kill her because no one makes a fool of him. He then stopped the assault all of a sudden because he received a telephone call, and he left the home. Mother stated that the following day, the day she made the police report, she and Hector began to argue again. That happened when she returned home from work, about 2:30 p.m. Hector told Mother he would come to where she works and kill her. Mother told him she was going to call the police and he replied this would make things worse for her and the police would do nothing for her. Mother told the police she was in fear for her life and she came to the police station as soon as she could and could not come sooner because she does not drive and she did not have a ride to the station. The police report states that two offices went to Mother’s home to locate Hector but could not find him. The police report does not mention anything about Hector blocking Mother and the minors from leaving the home. Indeed, it does not mention the minors at all.
A follow-up investigation report from the police, dated March 30, 2010, states that on March 24, nine peace officers from the Los Angeles Police Department (seven officers and two detectives, including an experienced narcotics officer), went to Mother’s home. The report states the narcotics officer was already working in plain clothes and an unmarked vehicle when he received information from one of the other officers that Hector was a suspect wanted for assault with a deadly weapon. The narcotics officer went to Mother’s home, saw Hector washing his car windows, and “recognized him as the Suspect and advised the involved officers.” Hector was arrested without incident. Minors Brenda and Clara came outside through the front door to their home and because they left the door open the narcotics officer was able to see a clear plastic bag of a green leafy substance resembling marijuana on top of a dresser next to a television. Hector signed a form giving his consent to search the home and the officers recovered digital scales, weapons and narcotics from the home, including cocaine, methamphetamine and marijuana. Regarding that recovery, a plastic container of marijuana seeds was found in “the center console”; in addition to the bag of green leafy substance near the television there was also a digital scale next to the television; there was a second digital scale and a replica handgun in the second dresser drawer under the television and a large black hunting knife in the rear area of Hector’s vehicle, and there was marijuana, methamphetamine and cocaine in a lock box on top of a dresser located by the bunk beds, and next to the lock box were keys to unlock it.
Hector admitted to the police that he owned the narcotics and admitted that the knife was used by him against Mother. Regarding the narcotics, he stated he was selling it to raise money for child support and he does not use it. He stated he sells each bindle of cocaine for $20. Regarding the narcotics in the living room, he stated they were his and “some guy kicked me down the stuff when I hooked him up with a dealer in front of the 7 11.” He stated he had been living at Mother’s home for a year and they had been together for five or six years. He gave Mother’s address as his address. He told the police that “home care” is his occupation. The arrest report for him has the following written on it: “*Gang Member: CPA*.”
Mother told the police that after Hector’s threats on March 14 and 15 she told him he was not allowed back into her home but minor Clara told her that he was coming back to the home every morning after Mother left for work and he stayed all day. Mother said she was not aware there were drugs in the home when Hector was arrested.
b. The Department’s Reports
After Hector was arrested the Department detained all three of the minors. Although he had been living with Father and had not been present during Hector’s domestic violence, Christian told the social worker he wanted to be detained with his sisters to give them moral support.
In interviews with the Department social workers for the detention and jurisdiction/disposition reports, Mother and the minor girls gave varied descriptions of Hector’s domestic violence. The cause of the argument(s) between Mother and Hector that preceded the violence was reported to be that Hector accused Mother of cheating on him, but it was also reported to be that Hector wanted to chase away minor Clara’s male friend that had come to see Clara and Mother told Hector to leave Clara alone. The dates of the violence also varied. In one interview Mother and Clara stated all of the violence was on one day, while in another interview they stated the knife incident occurred on one day and Hector’s blocking Mother and the minors from leaving the house occurred on the following day. Brenda’s description of the incidents gives the impression they occurred on the same day. What did not vary was that Mother and the girls stated the girls witnessed the violence against Mother, the girls were very upset by it and by Hector’s blocking them and Mother from leaving the home, they had never seen Hector be abusive towards Mother before that, and Hector had never been abusive towards them before that. Minor Christian also stated he had never seen Hector be abusive towards Mother. Clara and Mother stated that after the knife incident Mother and the girls left the home and Hector was still there. Then when Mother and the girls came back later and went to bed he was gone but he returned later.
When Hector was interviewed by the social worker he stated Mother did not know the drugs were in her home and she had nothing to do with them. However in a subsequent interview he stated it was possible that Mother had knowledge of the marijuana being in her home but not the other drugs. He also stated that on the day of his arrest marijuana and a scale were in reach of the minors. He stated the drugs (apparently meaning the other drugs) were in a lock box and the box was locked and hidden under a bed and the minors did not have access to it. Regarding his relationship with Mother, he stated they are just friends and are not in a romantic relationship, they do sleep together sometimes, he only visits her from time to time, and he stays with a friend or a cousin, not at Mother’s home. He stated the argument he had with Mother escalated to his use of the knife to threaten her after she objected to him going outside to chase Clara’s friend away.
Clara told the social worker that Mother is loving and kind with the minors and provides them with clean clothes and good food. She stated Hector slept over with Mother about two times a week. She stated she did not know that he was involved with drugs, however, she was hesitant in her answer when she was asked whether she had ever seen his drugs. Brenda stated Hector was arrested because the police found drugs and she saw a bag of drugs. She stated she is uncomfortable around Hector ever since she witnessed him threaten Mother with the knife and block her and Mother and Clara from leaving home. She stated Mother’s care and protection of the minors is good.
Mother told the social worker she was at work when Hector was arrested. She stated she had no knowledge that there were drugs in her home and because Hector had his own key to the home he must have been accessing the drugs while she was at work. However, she would neither admit nor deny that there was a black box by the bunk beds that were situated where she and Hector sleep. She stated she is a supervisor at a company that sews fabrics and she works from early morning to about 2:30 p.m. She stated Hector had never been violent towards her before. She stated she has never used illegal drugs, rarely has a social drink, and does not drink to excess. Regarding her relationship with Hector, Mother stated she dated him for a short time after they met and then he moved into her home and has been there for a little over a year. She and the social worker discussed a safety plan. Mother would obtain a restraining order against Hector the following day; she would have the lock on her door changed (apparently she that on March 25); the police agreed they would not give Hector the key to Mother’s that they had taken from him; if Hector tried to come into the home Mother or the girls would call 911, and Mother would end her relationship with Hector. A TRO was issued against Hector on March 25 and apparently a three-year restraining order followed.
The police officers told the social worker that the reason a narcotics officer went along to the home to arrest Hector was because Hector is a known gang member and likely was dealing drugs. The social worker went to Mother’s home and observed it to be neat and clean, with food and clean clothes for the minors. The social worker was concerned that Mother permitted Hector to remain in the family home after the domestic violence incident and that the drugs were in the home and accessible by the minors.
Mother’s visits after the March 26 detention hearing did not begin until April 26 and after that she was visiting the children weekly and calling them several times a week. Prior to beginning the visits she had telephoned them weekly. Father monitored the visits and reported Mother was appropriate with the minors, the visits went well, and the children were happy to see her. The social worker found that Father was caring for the minors well, the children’s paternal aunt was caring for them when they came home from school, and they were stable and attending school regularly. They stated they preferred to live with Father while Mother was taking her programs and things became stable, and Clara and Brenda stated that then they wanted to return to living with Mother. Father reported the minors were not showing emotional or mental problems and he was going to enroll them in counseling. He stated they should remain in his care because Mother could not care for them at that time. Mother stated the children should be returned to her care because she has never put them in any danger, she had left her home with the girls when Hector put the knife to her throat, and she reported Hector’s violence to the police when it occurred. By the time of the disposition hearing she had a total of three negative random tests and one missed test. A May 18, 2010 letter from the Valley Center for the Prevention of Family Violence states that on April 26 Mother enrolled in parenting classes and individual counseling and had attended three counseling sessions and two parenting classes. It was not clear if she was enrolled in a domestic violence program.
An interim review from the Department for the May 26, 2010 disposition hearing states Hector told the social worker he was sentenced to a year in county jail and five years probation, and was ordered to attend 52 sessions of a domestic violence program. He acknowledged the restraining order against him. He stated that with time served he would be released on November 1, 2010, and would live with a friend in Van Nuys. Thus, he would be out of jail five months after the disposition hearing.
3. The Court Hearings
At the April 28, 2010 adjudication hearing the court sustained the two counts in the section 300 petition that we set out at the beginning of this opinion.
The disposition hearing was held on May 26, 2010. Mother testified Hector had not made any attempt to contact her from jail. The court asked her what she thought she did that caused the court to detain her children from her. Mother responded it was that she left her children alone and went to work, and she allowed a person to live in her house “without me knowing what would happen there.” She added that in her class she learned that she had to not trust men. She stated she should not have trusted Hector because “[h]e had drugs in my house, but I didn’t know. I didn’t know that he had drugs in my house.” Asked whether she knew about “the scale on the dresser or the money or any of that stuff, ” Mother stated she did not know about them. She stated she did not want Hector to come back to her house because he hurt Clara and Brenda and her. Asked how he hurt them, Mother responded: “Because my children were detained and now I am here in court.” Asked why she believed she should not trust men, she answered she did not want the minors to “go through the same thing that they are going through now.” Asked if she felt all men are a danger to the minors, she stated she did not know. She stated she would abide by her therapist’s advice as to when the therapist feels Mother has enough insight to choose a proper mate to bring into her home, and she would abide by a court order prohibiting her from bringing men into her home while the minors are there.
The attorneys representing the minors, Mother and Father all argued to the court that the Clara and Brenda should be returned to Mother’s care and Christian should remain with Father. They argued that Mother had obeyed the visitation order, Hector would remain in jail for several more months, there were no other men in Mother’s life, Mother could be ordered to not permit men to come into her home unless they are relatives or the court gives its permission, Mother was attending her programs, pursuant to an offer of proof the minors would testify they feel safe with Mother, and the Department would continue to monitor the family and make unannounced visits to Mother’s home, and although Mother did not yet have “the insight that everybody would like her to have” there was no clear and convincing evidence that returning the minors to her care would be detrimental to them. The Department disagreed. It argued that Hector is merely a symptom and Mother’s testimony shows she did not currently have the insight to protect the minors because the issue is not rejecting trust of all men, and moreover the children’s welfare is threatened by more than men.
The minors were declared dependents of the court under subdivision (b) of section 300, and the court found by clear and convincing evidence that the Department met its section 361, subdivision (c) burden of showing that there would be a substantial danger to the minors if they were returned home and there are no reasonable means by which the children could be protected, including issuing an order regarding Mother’s allowing men into her life, without removing them from Mother’s physical custody. The court stated Mother should be able to comprehend that the danger presented to the minors is that she permitted Hector to be in her home, and yet when she articulated her understanding of the problem it was that the minors were in danger and suffered harm because they were removed from her care and it was upsetting them. The court stated that the “men are dangers to children” is a simplistic approach and given that Mother had only just begun parenting and counseling she had not reached an insight to understand why the minors were detained by the Department and how to protect them from “these types of environments.”
The court issued a home of parent order placing the minors in Father’s care and ordered family reunification services for Mother and the minors, including domestic violence classes for victims, parenting classes, conjoint counseling with the minors when their therapist deems them ready for it or recommends it, and eight random consecutive drug tests, and if there are any dirty or missed tests then completion of a drug treatment program. A review hearing was set for November16, 2010. The court also set a 60 day progress hearing for July 27, 2010, for reports from Mother’s counselor to determine if the minors could be returned to Mother’s care or visitation could be liberalized to overnights or weekends.
Mother filed a timely appeal from the disposition order.
DISCUSSION
1. Standard of Review
Jurisdiction findings are reviewed under the substantial evidence test. If there is any substantial evidence (contradicted or uncontradicted) to support the findings of the juvenile court, a reviewing court will uphold those findings. All reasonable inferences are made in support of the findings, and the record is viewed in the light most favorable to the dependency court’s jurisdiction order. (In re James C. (2002) 104 Cal.App.4th 470, 482; In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) We do not reweigh the evidence, judge credibility, or express an independent judgment on the evidence. (In re Laura F. (l983) 33 Cal.3d 826, 833; In re Heather P. (l988) 203 Cal.App.3d 1214, 1226, disapproved on another point in In re Richard S. (l99l) 54 Cal.3d 857, 866, fn. 5.)
Unlike jurisdiction findings, which are made using the preponderance of the evidence burden of proof, a decision in the disposition phase of a dependency case to remove a child from the physical custody of the parent with whom the minor resided at the time the dependency petition was filed must be made by the dependency court using the clear and convincing evidence standard of proof. (§ 361, subd. (c).) On appeal “we review the record in the light most favorable to the dependency court’s order to determine whether it contains sufficient evidence from which a reasonable trier of fact could make the necessary findings by clear and convincing evidence.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 441.)
2. The Jurisdiction Findings Are Supported by Substantial Evidence
The dependency court’s section 300, subdivision (b) jurisdiction finding regarding the drugs in Mother’s home is supported by substantial evidence. According to the police report, when the officers and detectives arrived at Mother’s home on March 24, 2010, Hector was outside washing the windows on his car and the narcotics officer saw a clear plastic bag of a green leafy substance sitting next to a television when he looked into the home through the open front door. The front door was open because Brenda and Clara had exited the home and left the door open when the police arrived. From those facts it can reasonably be inferred that Hector felt comfortable leaving the bag of marijuana in plain view of the minors. Moreover, drugs were found in the lock box situated by the beds used by the family, and whether that box was locked or not, the keys to it were found next to the box. Drugs were found in a dresser drawer and a “center console.” A digital scale was sitting next to the bag of marijuana on the television, and a second digital scale was in a dresser drawer. These things were in easy access of the minors and Mother. Clara and Mother denied seeing drugs in the home, but in her initial interview with the social worker Clara was hesitant in answering when she was asked whether she had ever seen Hector’s drugs. Hector told the social worker that it was possible that Mother had knowledge of there being marijuana in her home, and he admitted that on the day of his arrest the marijuana and a scale were in the reach of the minors. When Brenda was questioned about the events on the day of Hector’s arrest, she stated she saw a bag of drugs.
It is not an unreasonable to infer from the evidence in this case that Mother was aware that Hector kept drugs in her home. Or, to be charitable and “stretch[] one’s credulity” as the trial court put it, Mother should have been aware of the presence of drugs in her home. The drugs posed a substantial risk to the minors in that they might decide to experiment and try the drugs. Further, someone who knew that Hector was selling drugs and might be keeping them in the home could enter the home to rob it when the minors were present and the children could be harmed. Additionally, drug enforcement agents might receive a tip that Hector was dealing drugs and the minors could be injured or killed in a law enforcement attempt to investigate that tip.
There is also substantial evidence to support the court’s jurisdiction finding that Mother and Hector engaged in violent altercations in the presence of minors Clara and Brenda and Mother failed to take responsibility and timely action to protect the minors from domestic violence, and these events endanger the minors’ emotional and physical health and safety. Hector is a member of a street gang. Mother had known Hector for a number of years when this case was filed. It is reasonable to infer that Mother knew he is a gang member. Certainly the police did. A narcotics detective recognized him, and nine members of the Los Angeles Police Department, including an officer with substantial narcotics enforcement training, were dispatched to Mother’s home to arrest him. The follow-up police report states that Hector was strip searched when he was taken to the Van Nuys jail because of “the circumstances of the arrest.”
Street gangs are not benevolent societies. They are not the Kiwanis or the Fraternal Order of Eagles. Street gangs are groups of violent individuals who deal drugs. Hence, Mother should have realized that Hector posed a danger of both violence and drugs in her home, and this reality was born out by the violent events in May 2010. Mother permitted this violent drug dealer to live in her home and be around her children for a long period of time. That was a significant lapse in judgment and it placed her children in harm’s way each and every day. Mother reported the domestic violence to the police on March 15 but Hector continued to come to her house and it is reasonable to infer that she saw him there or that Clara and Brenda told Mother that he was coming there. Only his being arrested stopped him from being in the home.
Thus, the court had sufficient evidence from which it could infer that if Hector were to be released on bail, or when he is released from jail after a conviction, there would be a risk that he would return to Mother’s home and she would permit it, or she would become involved in a domestic relationship with someone else who would put the health and safety of the minors at risk. The court observed that while it was true that Mother had obtained restraining orders against Hector and changed the lock on her home, those actions would have to be weighed against “the fact that the mother still denies certain things and still tends to minimalize certain things.” The court stated it needed to “determine whether or not her current state of mind is as such which would [sic] present that substantial risk of danger for having these types of relationships and allowing them to continue despite what should be clear facts.” The court made that determination on the side of sustaining the domestic violation allegation.
The evidence supports the court. Mother failed to contact the police immediately after Hector put the knife to her throat and threatened to kill her. She waited until violence occurred the following day. She returned to the home on March 14 with the girls despite knowing that Hector could be there because he had a key, and thus she placed the minors in danger again. Danger materialized the very next day when Hector again threatened to kill her, and still she did not act to prevent him from coming into her home. She never asked Hector for his key, never changed the lock, and he kept returning. Mother only obtained the restraining order and changed the lock after the Department intervened and the social worker sat her down and devised a safety plan. This is not sufficient evidence that Mother was convinced that Hector was a threat to the minors’ safety and well-being, and not sufficient evidence that in the future she would not take up with a man similarly as lacking in civility as Hector is.
3. Substantial Evidence Supports the Dependency Court’s Disposition Order Removing the Minors from Mother’s Physical Custody
The evidence and analysis which we have just recited to affirm the dependency court’s taking jurisdiction over the minors also supports that court’s decision to remove the minors from Mother’s physical custody. It is clear that Mother failed to recognize and take responsibility for that fact that it was her allowing Hector to be a part of her life that caused the Department and the court to become involved with her family. Thus, the dependency court was concerned about her then-current ability to prevent the minors from suffering serious physical harm, and that caused the court to remove them from her physical custody. When the court asked Mother what she thought she did that caused the court to detain her children from her at the detention hearing, Mother responded it was that she left her children alone and went to work, and she allowed a person to live in her house “without me knowing what would happen there, ” and she denied she knew Hector had drugs in the house. She stated that in her class she learned that she should not trust men. She said that trusting men could cause the minors to “go through the same thing that they are going through now.” Her reasons for not wanting Hector to return to her home were that he had caused the minors to be detained and caused her to be in court. She stated she would rely on her therapist to tell her when she had developed judgment enough to decide who would be a proper man to have a relationship with.
The Department correctly argued that Hector is merely a symptom, and that Mother’s testimony shows she did not currently have the insight to protect the minors because the issue is not rejecting trust of all men, and the children’s welfare is threatened by more than men. The court correctly stated that Mother should be able to comprehend that the danger presented to the minors is that she permitted Hector to be in her home, and yet, said the court, when she articulated her understanding of the problem in the case she said it was that the minors suffered harm because they were removed from her care and it was upsetting them. The court stated that because Mother had only just begun parenting and counseling she had not reached an insight to understand why the minors were detained by the Department and how to protect them from “these types of environments.” The court observed that Mother’s “men are dangers to children” is a simplistic approach. In short, there is no cause to reverse the disposition order.
The Department informs this court that at the July 27, 2010 60-day progress hearing the dependency court terminated the home of parent-Father order that it made at the disposition hearing and placed the minors in the “home of parent(s), ” and at a November 16, 2010 review hearing the court terminated jurisdiction over the minors. The Department argues that Mother’s contention that the trial court erred at the disposition hearing when it removed the minors from her physical custody is now moot because the minors were returned to her care, and we therefore need not address the disposition order. However, we believe a parent has a right to make his or her case that a child would not have been in danger had the child been allowed to live with the parent. A parent should not have to live with being found to be then-currently unable to protect his or her children if there was no substantial evidence to support such a determination. For that reason, we did examine whether there was sufficient evidence to support the disposition removal order.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
We Concur: KITCHING, J., ALDRICH, J.