Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Terry Truong, Juvenile Court Referee. Los Angeles County Super. Ct. No. CK73731
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Senior Associate County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
J.D., Sr., (Father) appeals from the order declaring his daughters D.D. and L.D. dependents of the court under Welfare and Institutions Code section 300, removing his daughters from his custody and requiring him to attend parenting classes and counseling programs.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Father contends (1) substantial evidence does not support the juvenile court’s findings that he sexually abused L.D. and that L.D. and D.D. were persons described under section 300, subdivisions (b), (d) and (j); (2) substantial evidence does not support the court’s determination of domestic violence under section 300, subdivision (b); (3) the court erred in removing D.D. and L.D. from Father’s custody and care; and (4) the court erred in refusing to order an Evidence Code section 730 psychological evaluation of the family. We agree that the juvenile court’s finding of domestic abuse must be reversed but find no merit to Father’s remaining contentions.
BACKGROUND
Father and M.M. (Mother) are not married but have lived together for 20 years. Together they have two daughters, L.D. and D.D., and one son, J.D., Jr.
Mother is not a party to this appeal.
In May 2008, after Father left for a work-related trip to China, L.D. (then 8 years old) confided in Mother that Father had touched her inappropriately in October or November 2007 on the day Father gave L.D. “‘a little purse with a dogface on it.’” Specifically, Father had reached down inside L.D.’s pants and inserted his finger into her anus.
Prior to this disclosure, Mother had noted a distinct change in L.D.’s behavior and her guarded nature in Father’s presence. L.D. became withdrawn and cried a lot. When Mother inquired why L.D. was anxious or nervous, L.D. would note that Father was coming home or say, “‘“I’ll tell you later.”’” When Mother asked what was happening, L.D. said nothing was wrong. Mother took L.D. to the doctor and was informed that nothing was wrong. Mother had also observed blood on L.D.’s panties. L.D. could not explain the presence of blood. Mother attempted to talk to Father about her concerns, but he was dismissive and suggested that perhaps L.D. was starting her period.
After L.D.’s disclosure, Mother called the Department of Children and Family Services (DCFS) and left a message on its child abuse hotline. Receiving no response for five or seven days, Mother then went to the Foothill police station to file a restraining order. The police, in turn, informed mother that she had to go to court to seek such an order. Mother did so and thereafter moved her children out of the family home while Father was out of the country.
On May 29, 2008, a social worker from DCFS made an unannounced visit to the address on the referral but was unable to enter the complex. He called and left a message asking for a return call to discuss the allegations. Mother returned the call later that day and left a message explaining that she already had “taken action.” She further stated, “‘Thank you for your services but I have already filed papers against father, I thought you guys would respond faster.’”
Despite the social worker’s repeated attempts to contact Mother, he did not hear from her until July 1, 2008. At that time, Mother explained that she had taken all necessary means to protect her children from Father. She and the children moved, and she filed for custody and child support in the family law court. The social worker met with the family later that day.
L.D., who was hesitant at first, eventually explained to the social worker that Father bought her a “pink poodle [purse]” and asked if she liked it. L.D. said she did, after which Father “‘put his hand down her pants and stuck his finger in her butt.’” When the social worker inquired as to the frequency of such acts, L.D. became “quiet and defensive.” After the social worker explained that it was his job to keep children safe and happy, L.D. stated that Father “‘did it two times.’” The abuse occurred in L.D.’s bedroom and in the hallway. L.D. told the social worker that she did not want to see Father and did not want him to know where she lived.
The social worker also spoke with L.D.’s siblings. J.D., Jr., stated he believed L.D. because she did not lie. Also, she cried when she disclosed the abuse, a disclosure that “‘[c]ame out of nowhere.’” J.D., Jr., denied any abuse by his Father or anyone else.
According to D.D., L.D. had been “‘[c]rying and acting weird’” before she told Mother what Father had done. Like J.D., Jr., D.D., too, believed L.D. D.D. denied that Father had made any sexual advances toward her.
In the meantime, on June 8, 2008, Los Angeles Police Detective R. Garrett, who was assigned to the Foothill Area Detectives Sexual Assault Unit, interviewed L.D. after Mother reported that L.D.’s alleged Father had sexually assaulted her. When questioned by Detective Garrett, L.D. denied that anyone had touched her inappropriately.
Due to Mother’s persistence, Detective Garrett asked L.D. if Father had touched her inappropriately in the chest or private area. L.D. said no. When the detective asked if Father had ever touched her accidentally, L.D. described two incidents. The first occurred when L.D. was seven. She was going to take a shower when Father touched her breast area over her clothes. He told her to shower and then walked away. On another occasion, L.D. was stretching when Father walked by and touched her buttocks. L.D. did not think the touching was intentional and called it a “‘slip.’”
When Detective Garrett walked L.D. to meet with Mother, Mother questioned L.D. Mother “was upset, very emotional, crying and trying to persuade [L.D.] to tell [Detective Garrett] the ‘truth.’” The detective took L.D. back to the interview room and asked her to tell him the truth. At this juncture, L.D. told Detective Garrett that she was standing in front of Father when he gave her a hug. He then placed his hand inside her pants and touched her buttocks. L.D. denied any penetration.
Detective Garrett asked L.D. if she was afraid to tell him what happened. She said she was afraid of Father, who she described as “‘big.’” L.D. denied any other type of touching.
In his report, Detective Garrett noted that a month before two other detectives had questioned L.D. Inasmuch as L.D. had denied that Father sexually molested her, no report had been taken.
On June 19, 2008, Detective Hamilton interviewed L.D. L.D. told Detective Hamilton that she had lied to Detective Garrett about her Father accidentally touching her breast and buttocks outside her clothes. L.D. was adamant, however that on one occasion Father had placed his hand inside her pants and touched her buttocks. L.D. said nothing about Father putting his finger inside her anus.
It seemed to Detective Hamilton that Mother pressured L.D. into making the disclosure. The day after the interview, Mother returned to the police station with a tape recording of a discussion Mother had with L.D. On the recording, L.D. states she is embarrassed to talk about Father touching her buttocks. At one point, L.D. asks Mother why she slapped her. Mother explained, “‘You wouldn’t do the right thing.’”
Mother acknowledged making a recording of L.D. describing what Father did to her. According to Mother, L.D. was emotionally upset after talking to Detective Hamilton, in that L.D. did not want to talk about the abuse. L.D. was crying and stated she wished she were dead. Mother, who was driving at the time, turned back and slapped L.D. on the knee to discourage her from talking like that.
On July 3, 2008, L.D. underwent a forensic sexual abuse examination at Northridge Hospital Medical Center. L.D. told the examiner that a while back Father “‘hugged her face to face then put his hand down her pants and underwear and his finger went inside [her] butt hole.’” This happened only once. As the examiner anticipated, L.D.’s anal-genital examination was normal due to patient “perception/lapse of time.” Mother told the examiner that abuse occurred in November 2007.
On July 17, 2009, two social workers spoke to Father on the telephone. Father denied the sexual abuse allegations and voiced his belief that Mother was coaching L.D. to make false allegations against him.
On July 22, 2008, DCFS filed a petition alleging that all three children were dependents of the court within the meaning of section 300 due to Father’s sexual molestation of L.D. At a detention hearing held the same day, the court ordered the children detained as to Father only and released them to Mother. D.D., who was almost 17, and J.D., Jr., who was almost 18, requested unmonitored visits with Father. The court granted their request but ordered Father’s visits with L.D. to be monitored. The court also ordered family maintenance services for Mother, family reunification services for Father, and individual counseling and medical services for L.D. On July 24, the juvenile court issued a mutual stay away order directed at the parents.
On August 27, 2008, DCFS filed a first amended petition, which added an allegation that both parents engaged in domestic violence in the presence of the children. The original petition was dismissed.
In its jurisdiction/disposition report, DCFS recounted that J.D., Jr., heard his parents argue. He had not heard them yell loudly at each other, call each other derogatory names or fight physically, however. Similarly, D.D. and L.D. witnessed their parents arguing but never heard them call each other derogatory names or saw them become physical with one another.
Mother and Father both acknowledged that several instances of domestic violence occurred between them. While the children were in the house when some of these instances occurred, neither parent stated that the violence occurred in the children’s presence.
DCFS further reported that during an August 5, 2008 interview, L.D. recounted the molestation stating, “‘He [h]ugged me tight and he sticks his hand inside my private in the back (buttocks) he put his finger inside my underwear and inside my back private.’” L.D. said it hurt. Later, when she went to the bathroom, she saw a little blood in the toilet. L.D. also noted that Father once touched her chest over her clothes and demonstrated by passing her hand across her chest area. L.D. denied that Father ever touched her “‘front private part.’”
At an adjudication hearing held on December 2, 2008, L.D. was the first to testify. When the questioning commenced, L.D. started to cry. L.D. testified that Father had touched her in a way that made her feel uncomfortable. When asked to explain, she said, “I don’t know that much.”
L.D. recalled that Father had bought her a pink poodle purse. She further recalled telling a social worker that when Father gave her the purse, Father put his hands down inside her pants and put his finger in her “butt.” L.D. confirmed that it was true that her Father put his finger in her anus. L.D. pushed Father away, went to Mother’s room and locked the door, where she turned on the TV. L.D.’s body did not hurt but she did cry. She did not notice any stains on her underwear or notice any bleeding.
Although L.D. recalled that the incident happened at home, she could not recall the room in which it occurred or when it occurred. L.D. denied that there had been other incidents with Father in her bedroom or the hallway.
L.D. confirmed that she told the police about the incident with the poodle purse. She denied that Mother, the social worker or the police told her what to say, and she testified that she told the social worker and the police the truth and was telling the truth in court.
L.D. did not recall telling a social worker that once when she was going to take a shower, that Father touched her breast. She also did not recall telling a social worker that Father touched her butt when she was stretching. Other than the incident involving the poodle purse, Father did not touch L.D. on her body in a way that made her feel bad.
Although L.D. was afraid of Father on the day he put his finger in her anus, she was not afraid of him at the time of the adjudication hearing. She had had a number of visits with Father, and the encounters had gone well. L.D. confirmed that her mother, the social worker and the police did not tell her what to say.
Mother testified after L.D. In 2007, Mother became concerned about L.D.’s behavior. L.D. “cried a lot” and begged Mother not to leave her alone with Father. Everything made L.D. angry; everything made her cry.
Mother first began seeing these changes in L.D. in November 2007 on the day she left L.D. home with Father. On that day, Father and L.D. visited Mother at work. L.D. acted different on that occasion. She would not make eye contact with Mother, did not respond to Mother’s greeting and “had no spirit.” When Mother asked what was wrong, L.D. did not respond. Father asked Mother, “What was all those questions?” Mother replied, “‘I have the right to ask her what’s wrong with her.’” At that point, Mother did not know what was wrong.
Later, while doing laundry, Mother became concerned when she found blood on three of L.D.’s panties. Mother asked L.D. to explain, but L.D. could not; neither could Mother obtain a satisfactory explanation from anyone else in the family. During this same time period, Mother was moving furniture when she found a shirt belonging to L.D. Mother thought there was semen on the shirt.
Mother did not take any of these articles of clothing to the police or have them tested.
As a result of her concerns, Mother took L.D. to be examined by Dr. Danielle Roden-Flowers on November 13, 2007. L.D. told the doctor that no one had touched her inappropriately. Mother also consulted with a social worker at the school district for which Mother worked. Following the advice of the social worker, Mother located a health consultant that provided L.D. play therapy.
In April 2008, Mother confronted Father regarding her concerns about L.D. Mother asked Father why L.D. seemed afraid of Father and noted that L.D.’s behavior had changed. Father “was in denial” and “kept away.” He did not seem to care. Due to her concerns about L.D., Mother did not talk to Father for a month.
On May 26, 2008, after Father left for China, L.D. made a revelation to Mother. L.D. explained that on the day Father gave her the poodle purse, he “put his fingers inside, behind her rectum.” L.D. demonstrated on Mother where the touching occurred. L.D. was in tears. She stated she was frightened and did not trust Father anymore. Armed with this information, Mother contacted DCFS. At no time did Mother tell L.D. what to tell DCFS or law enforcement; neither did Mother tell L.D. what to testify in court. Prior to May 30, 2008, Mother had dreams that Father molested L.D.
Father testified on his own behalf at the adjudication hearing. He admitted that he gave L.D. a pink poodle purse on November 11, 2007, but he denied that he ever touched her inappropriately. He also denied doing or saying anything that would cause her to accuse him of sexual wrongdoing.
In response to Mother’s allegations that Father sexually abused L.D., Father called a family meeting. Father asked L.D. to tell Mother and her siblings if Father had ever touched her. L.D. said, “‘I told my mom N-O, it’s no.’” In May 2008, Father went to China for work. Before he left, he tried to talk to Mother, but she refused to talk to him for a month. When Father returned home four weeks later, he returned to an empty apartment. Mother and the children were gone, along with the family’s household furnishings.
Mother denied that Father called this family meeting.
With regard to the allegations of domestic violence, Father noted that Mother had slapped him in the face in December 2007. On another occasion, Father got out of the car and was hanging on the door when Mother started driving 30 miles per hour. Father screamed for Mother to stop. Mother finally stopped after 10 minutes’ of driving. Father described this as “the worst day of my life.” According to Father, no criminal charges had been filed against him as a result of L.D.’s accusations against him.
Father was fed up with Mother’s accusations against him. Mother previously had accused Father of molesting their son and older daughter. Mother also accused her brother-in-law of molesting their son. Father did not believe the accusation and refused to press charges. At one point, Mother accused their son of molesting L.D. because L.D. was developing breasts. Mother took L.D. to the hospital and was advised that it was normal.
Father was shocked by L.D.’s testimony at the adjudication hearing but believed Mother had coached her. Father did not believe law enforcement personnel had coached L.D. Father believed the police reports were accurate to the extent they reported that L.D. had denied that any molestation occurred.
At the conclusion of the adjudication hearing, the juvenile court dismissed J.D., Jr., from the petition, in that he had reached the age of 18. As to L.D. and D.D., the court found by a preponderance of the evidence counts b-1, b-2, d-1 and j-1 of the petition to be true as amended to conform to proof and found L.D. and D.D. to be persons described by section 300, subdivisions (b), (d) and (j). The court explained its findings as follows: “The court bases this decision for the amended language on, essentially, L[.D.]’s testimony. I did find L[.D.] to be credible. I did not find that her testimony was rehearsed.
Counts b-1, d-1 and j-1, as amended to conform to proof, provide: “On prior occasions, the children [D.D. and L.D.]’s father [J.D., Sr.] inappropriately sexually touched the child, [L.D.], including digitally penetrating the child’s anus, causing the child pain in the genital area. The father’s inappropriate touching of the child [L.D.] endangers the child’s physical and emotional health and safety and places the child and the child’s sibling [D.D.] at risk of physical and emotional harm.”
“While the father would like for me to believe that the mother has coached L[.] in the past, it’s not clear to me whether that was done or not done by the mother. I do not see any evidence of that in her testimony today. She has been consistent in what she has indicated to the social worker and to this court today.
“While I understand that L[.D.] was not forthcoming to the, I believe, two different police officers prior to a third visit to the police department, I can also understand that she does — this is not an issue she would like to talk about, that she would like to speak badly [of] her father.
“While the father also would like for me to focus on how well the visitation is going, I’m also not surprised that the visitations are going well between him and L[.D.] and D[.D.] because he still is [their] father, and they still want him to be their father. That does not mean — that does not mean that this did not occur. It does not mean that.
“The father also focuses on the fact that there’s no criminal charges pending. They have a beyond a reasonable doubt standard, which is much, much higher than what I have to find here. All I have to find is 51 percent, and I find that in L[.]’s testimony as well as in her statements to the social worker in this case.
“The examination, again, I’m also not surprised that the exam resulted in a normal finding. I did find she is credible. So this incident occurred in November. The scan did not occur, I believe, until July, which is seven months after this incident.
“I doubt if we’re going to find any evidence of anus penetration by a finger seven months after. Granted, I am not a medical doctor, I’m not a medical professional, but I am not surprised that there’s no tearing. The exam was normal in this case.”
The juvenile court found by clear and convincing evidence that there would be a substantial danger to L.D.’s and D.D.’s physical health, safety, protection if they were returned to Father and there was no reasonable means by which they could be protected absent removing them from Father’s physical custody. The court ordered L.D.’s and D.D.’s removal from Father and placed them with Mother. The court further ordered DCFS to provide Mother with family maintenance services and Father with family reunification services.
Counsel for Mother objected to DCFS’s recommendation that the family participate in an Evidence Code section 730 evaluation “to determine the type of counseling and issues that need to be addressed.” Mother’s counsel argued that such an evaluation was unnecessary, and counsel for the children agreed. Counsel for Father, on the other hand, maintained that a family study by a court-appointment expert was appropriate in this case. The juvenile court declined to order an Evidence Code section 730 evaluation.
The court ordered individual counseling for each parent relating to parenting and domestic violence and conjoint counseling with both daughters when deemed appropriate by the therapist. The case plan further specified that, as to Father, counselor was to address sexual abuse, anger management, conflict resolution, appropriate parenting, meeting children’s needs, trust, communication and relationship with children. In addition, counseling was ordered for L.D., as well as conjoint counseling with both parents when deemed appropriate by the therapist. The court granted Father unmonitored visits with D.D. and monitored visits with L.D.
This appeal followed.
DISCUSSION
A. Jurisdictional Findings
1. Standard of Review
The juvenile court’s function at the jurisdictional hearing is to determine if a child falls within one or more categories set forth in section 300 and thus within the jurisdiction of the court. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) On appeal, we will uphold the juvenile court’s jurisdictional findings if they are supported by substantial evidence, i.e., reasonable evidence of solid value. In assessing the sufficiency of the evidence, we review the entire record. In so doing, we resolve all conflicts in favor of the court’s findings and draw all inferences in support of the judgment to the extent they are reasonable. (Ibid.)
2. Domestic Violence—Section 300, subdivision (b)
Subdivision (b) of section 300 provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent’s failure to adequately supervise or protect the child or provide adequate medical treatment. Domestic violence that takes place in the presence of children constitutes neglect within the meaning of section 300, subdivision (b). (In re Heather A. (1996) 52 Cal.App.4th 183, 194.)
Father’s challenge to the court’s decision to sustain the domestic violence count of the operative petition (count b-2) has merit, in that substantial evidence does not support the finding. Although the parents acknowledged that they engaged in domestic violence, all three children denied seeing any physical altercations between their parents. Stated otherwise, there is no evidence that the parent’s domestic violence was witnessed by, took place in the presence of or affected any of the children. (Cf. In re Alysha S. (1996) 51 Cal.App.4th 393, 398.) Absent such evidence, DCFS failed to establish that the parents, as a result of their mutual domestic violence, failed to protect their children within the meaning of section 300, subdivision (b). We therefore conclude that substantial evidence does not support the juvenile court’s decision to sustain count b-2 of the first amended petition. (In re Veronica G., supra, 157 Cal.App.4th at p. 185.)
3. Sexual Abuse—Section 300, subdivisions (d) & (j)
Subdivision (d) of section 300 “relates to children who have been or are at risk of being sexually abused.” (In re Carlos T. (2009) 174 Cal.App.4th 795, 802.) It provides in pertinent part that a child may be adjudged a dependent of the juvenile if “[t]he child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent.”
Contrary to Father’s assertion, substantial evidence supports the juvenile court’s finding that Father sexually abused L.D. We previously set forth the juvenile court’s detailed explanation for the findings it made at the adjudication hearing. This explanation readily reveals that the court evaluated all the evidence, before finding that Father sexually abused L.D. In no uncertain terms, the court found L.D. to be credible and based its decision on her testimony and statements to social workers. We will not disturb the court’s assessment of L.D.’s credibility (In re Joseph B. (1996) 42 Cal.App.4th 890, 901), and we conclude that L.D.’s testimony that Father put his finger in her anus constitutes substantial evidence supporting the court’s finding that Father sexually abused L.D. (In re Veronica G., supra, 157 Cal.App.4th at p. 185.)
We summarily reject as specious Father’s assertion that any touching was not for the purpose of sexual arousal, appeal or gratification within the meaning of Penal Code section 11165.1.
Inasmuch as the record is devoid of evidence that Father sexually abused D.D., the court’s exercise of jurisdiction over D.D. pursuant to subdivision (d) of section 300 can be upheld only if D.D. was at risk of sexual abuse at the time of the jurisdictional hearing. We conclude she was.
In In re P.A. (2006) 144 Cal.App.4th 1339, Division Three of this District held that a father’s sexual abuse of his daughter presented a risk of future abuse of the son, aptly noting that “aberrant sexual behavior by a parent places the victim’s siblings who remain in the home at risk of aberrant sexual behavior.” (At p. 1347, fn. omitted; see also In re Karen R. (2001) 95 Cal.App.4th 84, 89-90.) It therefore follows that Father’s sexual abuse of L.D. placed D.D. at substantial risk of sexual abuse by Father should she remain in his custody. That D.D. was older than L.D. does not compel a contrary conclusion.
We therefore uphold the court’s determination that D.D., like her sister, was a dependent of the court within the meaning of subdivision (d) of section 300. In light of this holding, we need not determine if the juvenile court also properly exercised jurisdiction over the sisters under subdivision (b) and over D.D. under subdivision (j). (In re Shelley J. (1998) 68 Cal.App.4th 322, 330.)
B. Removal Order
Defendant contends the juvenile court erred in removing his daughters from his custody, in that substantial evidence does not support a finding of detriment. We disagree.
Section 361 provides in pertinent part that a dependent child may not be removed from the parent unless the child or sibling has been sexually abused, or is at substantial risk of being sexually abused by a parent, and there are no reasonable means by which the child can be protected without removing the child from his or her parents. (Subd. (c)(4)). We have already upheld the court’s determinations that L.D. was sexually abused by Father and that D.D. was at substantial risk of being sexually abused by Father. Given Father’s insistence that he has done nothing wrong, we conclude that substantial evidence supports the court’s determination that there was no reasonable means to protect the sisters without ordering their removal from Father. (In re Javier G. (2006) 137 Cal.App.4th 453, 462-463.)
In light of our conclusion, we need not, and do not, reach the merits of DCFS’s argument that Father’s failure to object to removal below precludes him from raising the issue for the first time on appeal.
C. Psychological Evaluation of Family
Father’s final contention is that the juvenile court abused its discretion in refusing to order an Evidence Code section 730 (section 730) evaluation for his family. Father maintains that such an evaluation was necessary to determine the family reunification services needed by the family. We are not convinced.
In its jurisdiction/disposition report, DCFS recommended that the family participate in a section 730 evaluation “to determine the type of counseling and issues that need to be addressed.” DCFS’s recommendation appears to stem from the “difficult[y it had in] in determin[ing] to what extent there was inappropriate sexual contact between the father and the child L[.D.]”
At the disposition hearing, counsel for Mother argued that a section 730 evaluation was unnecessary, and counsel for the children agreed. Counsel for Father, on the other hand, maintained that a family study by a court-appointment expert was appropriate in this case. The juvenile court declined to order a section 730 evaluation, apparently agreeing that such an examination was unnecessary.
The decision to appoint an expert witness is a matter of discretion. (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.) On appeal, therefore, we review the court’s decision not to appoint an expert to conduct a section 730 evaluation under the abuse of discretion standard. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341.)
Father’s assertion that the court abused its discretion in refusing to order a section 730 evaluation is premised on his faulty assertions that “the record is devoid of substantial evidence that Father sexually abused L[.D.]” and that an evaluation would have disclosed the absence of such abuse. Inasmuch as we have rejected Father’s challenge to the sufficiency of the evidence supporting the court’s unwavering finding of sexual abuse and implicit rejection of Father’s denial of wrongdoing, the foundational premise for Father’s present contention fails. No abuse of discretion has been demonstrated.
DISPOSITION
The juvenile court’s finding of domestic violence is reversed. In all other respects, the dispositional order is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.
Count b-2, as amended to conform to proof, states: “On numerous occasions, the children [D.D.] and [L.D.]’s mother [M.M.] and father [J.D., Sr.] engaged in domestic violence in the children’s presence, including the mother slapping the father in the face, the mother calling the father derogatory names, the mother throwing a bottle at the father, and the father slapping the mother in the face. Such domestic violence on the part of the parents endangers the children’s physical and emotional health and places the children at risk of physical and emotional harm.”