Opinion
B309617
07-28-2021
In re I.A., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.S., Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Nos. 20CCJP05055A, 20CCJP05055B, 20CCJP05055C, Rudolph A. Diaz, Judge. Affirmed.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
THOMAS, J. [*]
A.S. (mother) appeals from the juvenile court's disposition order removing her three children, I.A. (age 7), R.A. (age 5), and A.A. (age 22 months), from her custody. We affirm.
BACKGROUND
The Department of Children and Family Services (DCFS) received a referral in August 2020 reporting two incidents of domestic violence between mother and father that occurred in front of the children. One happened in June 2020, and the other occurred the previous year.
Father is offending under the sustained petition but is not a party to this appeal.
According to mother, the violence between her and father began in 2012 when she was 19. Mother next described an incident that occurred in 2015, when I.A. was eight months old, in which father punched mother's face and back while she held the baby. Father was arrested and charged with three counts of willful infliction of corporal injury. He was placed on probation and served with a three-year protective order. Father violated the protective order, mother did not enforce the order, and the parents resumed their relationship. Father hit mother and “tossed” her, causing her to fall to the floor when she was seven months pregnant with R.A. Throughout their relationship, father would move in and out of mother's home irrespective of any protective order.
In June 2017, while the 2015 protective order was still in effect, mother called the police after an argument with father escalated. She threw a rock at him and he broke a car window and mother's car key. Mother told the police that there had been “plenty of” domestic violence between her and father but that she had only called law enforcement twice. The police arrested father for the incident and for violating the protective order. Mother admitted that father was living with her and the children despite the protective order.
Mother was arrested in September 2018. She had become angry when she saw father give money to the mother of his other child. Mother and father tussled over a beer bottle until it broke, after which mother grabbed a crowbar and broke the windows of father's car. She denied that the children were present that day. She explained that she would send the children to maternal grandmother when father was having a “bad day.” In 2017 and 2018, mother promised DCFS she would seek full custody of the children, but she never followed up.
In early 2020, the parents tried reconciling. Father moved in with mother and the children for a short while and then moved out. Then, according to mother, in March 2020 father became angry at her because she was in a car with his friend and the children. Father asked mother to lower the car window, but she refused and so he “[c]ussed [mother] out” and confronted his friend. The friend drove off with mother and the children and father chased them, “[b]umper to bumper, ” for 90 minutes to two hours, scaring the children. When the friend stopped the car, father banged on the windows. Father threatened mother with harm at home and so she went to stay with maternal great aunt. I.A. confirmed the events and explained that mother was trying to find a hiding place and had called father's girlfriend to calm father down.
In the June 2020 incident cited in the instant referral, mother asked father for a ride to work. When father arrived and saw evidence of mother's current boyfriend, he swore at mother, called her names, and punched her in the eye, causing it to gush blood and her eyelid nearly to split. A neighbor took mother to the hospital, where she told staff that she had fallen in the shower. Mother's vision in that eye remains blurry. Mother did not call the police until later. She was granted an emergency protective order but did not seek a restraining order until September 2020 after DCFS became involved. She explained that the children were not home when the incident took place, and they believe she was injured at work.
Later that month, mother explained that father and his girlfriend began harassing mother at work by driving by and threatening her, and by sending threatening text messages. Mother said father was arrested but there was no restraining order.
Mother admitted calling father in September 2020 for help when her car died late at night, stranding her and the children at the beach. She also admitted being afraid of father. Mother believes father will end up killing her one day because she does not know what he is capable of when he's enraged. Asked about other incidents of physical violence, mother responded that there were “[w]ay too many.” She further stated that father has choked her “[p]lenty of times.” She added that father was violent with the mother of his other child.
I.A. made it clear in her interview with DCFS that she was aware of the violence between her parents. Seeing her parents fight made I.A. feel fear and disappointment. I.A. did not feel safe with father because he hit and screamed at mother and was “mean to us.” R.A. stated that when her parents fight, she feels sad.
Mother pleaded with DCFS not to remove the children from her. She admitted there have been too many domestic violence incidents to count and acknowledged that she saw father despite restraining orders protecting her from him. Mother promised to obtain another such order but also stated her work schedule made it difficult to apply for one. She explained that she and father separated in March 2020 and that he was no longer living with the family. The parents were now communicating by text message and father dropped necessities for the children off at the apartment complex gate.
The juvenile court ordered the children detained and placed under DCFS supervision. At the jurisdiction and disposition hearing, the court sustained a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1). The petition alleged that mother and father have a history of engaging in violent physical and verbal altercations in the children's presence; mother failed to enforce, and father failed to comply with, a restraining order; father has a history of methamphetamine and marijuana abuse and mother knew of father's substance abuse; and that mother failed to protect the children by allowing father to reside in the home and have unlimited access to them. The court ordered the children removed from the parents' custody and awarded the parents monitored visitation. Mother appealed.
All further statutory references are to the Welfare and Institutions Code.
The court also sustained allegations under section 300, subdivision (b)(1) that that the parents have mental and emotional problems that render them incapable of caring for the children.
DISCUSSION
Mother's sole appellate challenge is to the removal order. Once the juvenile court finds by a preponderance of the evidence that a child falls within its dependency jurisdiction, it conducts a disposition hearing at which it decides, among other things, whether the child will remain in the parent's physical custody during the period of the court's supervision. (In re N.M. (2011) 197 Cal.App.4th 159, 169; § 361.) The court may remove a dependent child from a parent's physical custody if it finds by clear and convincing evidence that there is a substantial danger to the child's physical or emotional well-being if the child were not removed from home, and there are no reasonable means to protect the child without removing him or her from the parent's physical custody. (§ 361, subd. (c)(1).)
“ ‘The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly.' ” (In re D.P. (2020) 44 Cal.App.5th 1058, 1071.) We review the juvenile court's dispositional order, including the order removing a child from a parent's physical custody, for abuse of discretion (ibid.; In re K.T. (2020) 49 Cal.App.5th 20, 25), and we review the findings of fact on which the removal order is based for substantial evidence (K.T., at p. 25). Because the facts underlying the juvenile court's exercise of discretion must be established by clear and convincing evidence, the question before this court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
Mother contends that the evidence is insufficient to support the finding by clear and convincing evidence that there is a substantial danger to the children's physical or emotional well-being, so as to justify removing them from mother's custody. We find, to the contrary, that the record reflects a long history of recurring, unresolved domestic violence between the parents. The children, moreover, were present for episodes of violence and its consequences, and could have themselves become casualties of father's aggression. Father punched mother while she was holding infant I.A., threw her to the floor when she was pregnant with R.A., and recently chased mother and the children in a car, bumper to bumper, for nearly two hours. We recognize that the record does not reflect physical harm to the children (although it plainly demonstrates emotional injury). But, as we have held, “[e]ven if a child suffers no physical harm due to domestic violence, a ‘cycle of violence between... parents constitute[s] a failure to protect [a child] “from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.”' ” (In re V.L. (2020) 54 Cal.App.5th 147, 156.) We are further aware that father was the perpetrator of most of the serious violence in the relationship, and mother was the victim of such violence. Yet, the “parent need not be dangerous... before removal is appropriate. The focus of the statute is on averting harm to the child.” (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
Mother's argument that there is no reason to believe that domestic violence between the parents would re-occur is unavailing. Citing In re Daisy H. (2011) 192 Cal.App.4th 713 at pages 716 to 718 and In re Henry V. (2004) 119 Cal.App.4th 522 at page 529, mother observes that the incident in which I.A. was present occurred five years earlier and the last violent incident occurred in June 2020, after which the parents separated and mother obtained a restraining order against father, who no longer lived with the family. But the record demonstrates that, unlike in both of those cases, there were more than five years of violence in mother and father's relationship, spanning from when mother was 19 to the March 2020 car chase. Daisy H. and Henry V. are thus inapposite. The fighting between mother and father here is not a one-time event, but chronic, and the children's risk of physical harm from that violence only ceased after DCFS intervened, removed the children, and filed the instant petition.
In re Steve W. (1990) 217 Cal.App.3d 10, cited by mother, is instructive although factually inapt. The Steve W. court recognized that the more likely it is that the parents “ ‘will have further contact..., the more the child's welfare is jeopardized.” (Id. at p. 22.) Unlike the facts in in Steve W., however, mother has repeatedly seen father despite the existence of protective orders, resisted obtaining new restraining orders, and resumed her relationship with father; called him for rides; and, even though she is afraid he will kill her one day, protected him by lying to the hospital staff about how her eye was damaged. Mother has, furthermore, called police a total of only three times despite there being too many incidents of violence at his hands to count. The juvenile court reasonably could conclude that mother will have further contact with father and that the children will thus continue to be exposed to father's violence. On the whole record, a reasonable trier of fact could find it highly probable that returning the children to mother would pose a substantial risk of harm through such exposure. (§ 361, subd. (c)(1).)
Mother next contends that the juvenile court failed to assess all of the factors in determining that removal was necessary. She argues that “strict supervision” in the form of unannounced visits and regular interviews of the children constitute reasonable alternatives to removing the children. But, because the record indicates that mother has repeatedly had contact with father irrespective of protective orders, the court could reasonably infer that there is no reasonable means of protecting the children short of removing them from mother's custody.
DISPOSITION
The order is affirmed.
We concur: EDMON, P.J., LAVIN, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.