Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK74360, Marilyn Mordetzky, Juvenile Court Referee. Affirmed.
Harry Zimmerman, 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, Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Jaime C. appeals from an order adjudicating his minor children, Nathan M. and Matias C., dependents of the court and removing them from his custody. He contends there is insufficient evidence to support the juvenile court’s decision to remove the children from his custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jaime C. (Father) and M.L. (Mother) are the parents of Nathan M., born in 2005, and Matias C., born in 2008.
Father also has a daughter, Alicia C., and Mother has a daughter, Sarah M. This appeal concerns only Nathan and Matias, and Mother is not a party to the appeal.
Nathan and Matias were detained on January 11, 2009. The Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 on January 14, 2009. A second amended complaint filed on February 10, 2009 alleged that the boys were at risk of serious physical harm due to the parents’ domestic violence (id., subd. (a)) and failure to protect them (id., subd. (b)), and each boy was at risk of harm due to abuse or neglect of his sibling (id., subd. (j)).
All further section references are to the Welfare and Institutions Code.
Father and Mother began a relationship in 2004, broke up, then restarted their relationship and moved in together in 2007. On October 24, 2008, Father and Mother got into an argument. Mother swung at Father and hit his daughter, who was in his lap, in the head.
Father tried to get his sister, who was at their home, to take his daughter and leave in his truck. Mother, holding Matias and her daughter, ran out and stood behind the truck. When Mother stepped aside, Father tried to keep her there and told his sister to go. Mother then threw Nathan under the truck. Father had his sister stop the truck and retrieved Nathan.
This incident resulted in a DCFS referral. Father and Mother agreed to comply with voluntary family maintenance and receive family preservation services.
On November 1, 2008, Father and Mother were at a party and both were drinking. Mother got upset at Father and threw a flowerpot.
In early January 2009, Father and Mother got into an argument and physical altercation. Matias, who was sleeping in his bassinet, awoke. He stood up, fell out of the bassinet and hit his head on the nightstand, lacerating his eyebrow. Mother called 911. The police arrested Father and took Matias to the hospital.
In interviews, Father and Mother accused the other of being the aggressor. Father accused Mother of abusing the children. Mother admitted having a problem with anger and that Father had stepped in to protect the children from her.
According to Nathan, Father took care of him when Mother hurt him and protected him when Mother got angry.
Following the jurisdiction/disposition hearing, the juvenile court noted “that when you have a domestic violence situation, it really isn’t who the aggressor was. Of course, the court looks at that. But the way I interpreted the evidence and the testimony by the father and the mother in this case is you’re both culpable in this case.”
The court told Father and Mother that they had “to learn how to co-parent together, how to be able to communicate together and how to get along.” Had the court not intervened, the children could have been seriously injured. Additionally, “[d]omestic violence is how you two interact with one another. When the children see you act the way you do and in a way that’s been presented to this court, it’s secondary abuse. It’s emotional abuse.”
The court hoped that Father and Mother would learn from their classes “what the domestic violence cycle encompasses, and hopefully these children can be returned to you and that you can learn to act like adults when you are with your children.”
The court sustained the section 300 petition as amended. It declared Nathan and Matias dependents of the court under subdivisions (a), (b) and (j) of section 300. It found by clear and convincing evidence under section 361, subdivision (c), that there was a substantial danger to the children if they were returned to their parents’ physical custody, and there were no reasonable means to protect the children without removing them from their parents’ physical custody. It therefore ordered the children removed from Father’s and Mother’s physical custody.
It ordered Father and Mother to participate in a 52-week domestic violence counseling program, parent education to deal with cooperative parenting and divorce. Father was also ordered to submit to on-demand alcohol testing on suspicion.
DISCUSSION
Father contends there is no substantial evidence that there were no reasonable means to protect the children without removing them from his custody or that it posed a substantial risk to return them to his home as long as Mother was not present. He also claims he was prejudiced by the juvenile court’s failure to make factual findings as to why removal of the children from his custody was warranted.
Contrary to DCFS’s claim, Father’s challenge to the sufficiency of the evidence to support the dispositional order is not forfeited by Father’s failure to submit a written argument on the matter below. (Cf. In re P.C. (2006) 137 Cal.App.4th 279, 287-288.)
Before the juvenile court may make a dispositional order physically removing a child from his or her parent, “it must find, by clear and convincing evidence, that the child would be at substantial risk of harm if returned home and that there are no reasonable means by which the child can be protected without removal.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917, review den. Aug. 19, 2009; accord, § 361, subd. (c)(1).) The court’s “jurisdictional findings are prima facie evidence that the child cannot safely remain in the home. (§ 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child. [Citations.] In this regard, the court may consider the parent’s past conduct as well as present circumstances. [Citation.]” (Cole C., supra, at p. 917.)
Father relies on evidence that Mother was the aggressor in the incidents of domestic violence, and that he protected the children when she turned her anger on them. This evidence does not establish that the children would not be at substantial risk if returned to his home without Mother present, however.
As the trial court noted, “[d]omestic violence is how you two interact with one another.” Even if Mother was the aggressor, Father participated, placing the children at risk of physical injury and emotional harm. That Mother no longer lived with Father did not remove the risk. Father would still have to deal with Mother with respect to visitation. If he could not do that in a mature and responsible fashion, the children remained at risk.
It is especially telling that, despite previous incidents of domestic violence and abuse of the children by Mother, with voluntary family maintenance and family preservation services, the problem remained. Father participated in domestic violence with Mother, resulting in the injury to Matias, DCFS referral, and removal of the children from the parents.
Father also complains of the juvenile court’s failure to “state the facts on which the decision to remove the minor is based.” (§ 361, subd. (d).) Assuming arguendo the court’s discussion at the hearing did not meet the requirements of section 361, subdivision (d), any error was harmless. The court made clear its belief that Father needed to address his domestic violence issues before he could safely co-parent the children. Otherwise, there was a risk that the domestic violence would be repeated. “Because the reasons for [removal] are clear from the evidence and discussion at the hearing and support the court’s decision, the court’s failure to make findings is harmless. It is not reasonably probable such findings, if made, would have been in favor of [father].” (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
DISPOSITION
The order is affirmed.
We concur: WOODS, Acting P. J.ZELON, J.