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In re T.A.

Court of Appeal of California
Sep 5, 2008
No. E044788 (Cal. Ct. App. Sep. 5, 2008)

Opinion

E044788

9-5-2008

In re T.A. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.A., Defendant and Appellant.

Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent. Julie E. Braden, under appointment by the Court of Appeal, for Minors.

Not to be Published


The juvenile court entered judgments declaring T.A. and C.R. dependents of the court (Welf. & Inst. Code, § 300, subd. (b)) and removing T.A. and C.R. from the physical custody of their mother, J.A. (Mother) (§ 361, subd. (c)(1)). Mother contends the juvenile court committed reversible error because (1) the evidence supporting the courts jurisdictional findings does not meet the substantial evidence standard; (2) the evidence supporting the courts dispositional findings does not meet the substantial evidence standard; and (3) the court failed to make the required findings prior to ordering the children be removed from Mothers physical custody. We affirm the judgments.

All subsequent references to code sections are to the Welfare and Institutions Code.

FACTS

T.A., age five, and C.R., age 13, lived with Mother and B.A. (Father), who is the presumed father of T.A. On May 18, 2007, the Riverside County Department of Public Social Services (the Department) received a report alleging that T.A. and C.R. were being neglected and emotionally abused.

On July 30, 2007, a Department employee spoke with Mother. Mother informed the Department employee that there had been incidents where Father had been "out of control." Mother said that Father had taken anger management classes, but still had anger issues. Mother reported that earlier that day, she and Father had a disagreement concerning which show to watch on television. The disagreement escalated, and Father called Mother "whore" and accused her of having venereal diseases. When Mother attempted to leave the motel room, in which they were staying, Father threw a package of cigarettes at her and refused to let her leave. Eventually, Mother was able to get into a van with the children. Father climbed "halfway" into the van to prevent Mother from leaving. T.A. cried while witnessing the events. When T.A. described the incident to a Department employee he said, "I was crying. Mommy turned the steering wheel. He was still in there. He was trapped!"

Mother described her relationship with Father, who is her husband, as "on and off." Mother stated that she had previously failed to enforce restraining orders protecting her from Father. When Father was interviewed on July 30, 2007, he denied abusing alcohol, but smelled strongly of alcohol and admitted drinking "four to five beers" that day. Father confirmed that he suffered prior arrests for domestic violence and driving under the influence.

A Department employee directed Mother to obtain a new restraining order. T.A. and C.R. were taken into protective custody.

On August 3, 2007, the court held a detention hearing in the matter. The court found that returning T.A. and C.R. to Mothers or Fathers custody would place the children in substantial danger. The court ordered that T.A. and C.R. be placed in the custody of the Department and that Mother and Father receive reunification services. The court found that Father is the presumed father of T.A. and that D.R. is the presumed father of C.R.

On August 17, 2007, C.R. was interviewed by a Department employee. C.R. stated that he wanted to return to Mothers care and did not want to live with D.R. C.R. denied ever being afraid of Father. C.R. said that Mother and Father yell at each other, but he had never seen them be physically violent. C.R. informed the Department employee that when he and T.A. are in trouble, Mother and Father send them to their rooms; C.R. denied that he and T.A. are physically disciplined. When asked what Mother and Father could do to make their home safer, C.R. responded, "[S]top drinking."

When T.A. was interviewed by a Department employee he said that he felt safe with Mother and Father, and never felt afraid of them. T.A. indicated that Father punished T.A. by spanking him with his hand. T.A. said that Mother did not hit him. T.A. said to a Department employee, in regard to Mother and Father, "They just fight. They drink. They start to drink beer. Sometimes they drink beer and sometimes they drink water. . . . She gets drunk. They fight back and forth." T.A. said that Mother and Fathers arguments are verbal, not physical.

Mothers mother, S. (Grandmother), stated that Mother and Fathers "big issue is alcohol." Grandmother explained that she never witnessed physical violence between Mother and Father, but Mother had told her about incidents involving shoving, and Grandmother had seen bruises on Mother. Grandmother reported that Mother and Father share an 18-pack of beer every night. Grandmother stated that when Mother and Father have a "bad argument," Mother will bring T.A. and C.R. to Grandmothers house. Grandmother said that T.A. and C.R. are usually asleep when Mother and Father argue. Grandmother did not believe that Mother drove with the children in the car while under the influence of alcohol.

On September 18, 2007, Father was interviewed by a Department employee. Father admitted that he had suffered a prior conviction for domestic violence against Mother in 2003. Father said that he drank a 12-pack of beer every night, but stopped drinking on a nightly basis in March 2007, and now only drinks occasionally. Father agreed to participate in an alcohol treatment program. Father informed the Department that he was homeless and "going from `place to place."

Mother informed a Department employee that she was living with Grandmother. Mother admitted that she suffered a conviction for driving under the influence in 2005. Mother said that she used to drink "three or four beers in one sitting," but she had stopped drinking alcohol.

On October 15, 2007, Mother applied for a restraining order against Father. In her application, Mother made three allegations of recent abusive incidents. First, on October 6, 2007, Father called Mother "bitch" and "whore." Mother alleged that Father pushed her and threw household objects. Mother reported that she suffered bruises and soreness after the incident. Second, Mother alleged that on October 7, 2007, Father called her "cunt" and "whore." Mother reported that Father twisted her finger and punched the outside of their trailer. Third, Mother alleged that on October 8, 2007, Father told Mother that he wished she would die. Father shoved Mother, kicked her, and spit in her face. Mother indicated that the police responded to all three incidents.

At a contested jurisdictional hearing, on October 18, 2007, the court found true the allegations that (1) Mother and Father engage in domestic violence in the presence of the children, which places the children at risk of suffering serious physical harm; (2) Mother failed to comply with the Departments safety plan; and (3) Mother and Father abuse alcohol, which places the children at risk of suffering serious physical harm. The court ordered that C.R. be placed with D.R. T.A. was moved from his maternal relatives home to the California Family Life Center, at the request of his relatives who could not control his behavior.

The Departments November 27, 2007, addendum report reflects that Father completed an intake appointment for substance abuse counseling, and Mother withdrew her consent to the release of information concerning her substance abuse counseling.

On November 27, 2007, the court held a contested disposition hearing. The court found placing T.A. in Mothers or Fathers care would be contrary to T.A.s welfare. The court ordered that T.A. be removed from Mothers and Fathers custody, and be placed in the custody of the Department. The court found placing C.R. in Mothers care would place C.R. at substantial risk of harm. The court ordered that C.R. be placed with D.R.

DISCUSSION

1.

JURISDICTION HEARING

Mother contends the juvenile courts findings that T.A. and C.R. come within the jurisdiction of the juvenile court are not supported by substantial evidence. We disagree.

We note that counsel for C.R. and T.A. join in the Departments arguments.

"The purpose of the section 300 jurisdictional hearing is to determine whether the child is a person described by section 300 . . . ." (In re C.T. (2002) 100 Cal.App.4th 101, 108; see § 355.) Section 300, subdivision (b), provides a child is subject to the jurisdiction of the juvenile court if the "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 . . . or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians . . . substance abuse." Essentially, the question for the court at a jurisdiction hearing "`is whether circumstances at the time of the hearing subject the minor to the defined risk of harm and [whether] `"[t]here [is] some reason to believe the [abusive] acts may continue in the future." [Citation.]" (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)

"`"The petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child . . . comes under the juvenile courts jurisdiction." [Citation.] On appeal from an order making jurisdictional findings, we must uphold the courts findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inference in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.]" (In re Veronica G., supra, 157 Cal.App.4th at p. 185; see also § 355.)

The following evidence provides substantial support for the courts jurisdictional findings: (1) Mothers report on July 30, 2007, that Father threw a package of cigarettes at her and refused to let her leave the motel room during their argument; (2) Mothers report on July 30, 2007, that she drove a van, with the children inside, while Father was only partially in the vehicle; (3) Father smelling strongly of alcohol and admitting drinking "four or five beers" on July 30, 2007; (4) Grandmothers report that Mother and Fathers "big issue" is alcohol and that Mother takes C.R. and T.A. to Grandmothers house after "bad arguments" with Father; (5) T.A.s and C.R.s reports of Mother and Fathers drinking and fighting; and (6) Mothers application for a restraining order alleging three incidents of abuse in October 2007.

We conclude this evidence provides substantial support for the courts jurisdictional findings for three reasons. First, it can be reasonably inferred from the evidence that Mother drives drunk with the children, because Mother takes the children to Grandmothers house when she has a "bad argument" with Father, and the arguments typically occur after Mother and Father have been drinking. An example of this behavior is the incident at the motel where Mother drove the children in a van when Father was only partially in the vehicle. Grandmothers statement that she does not believe Mother drives with the children while she is drunk is contradicted by Grandmothers own statements that Mothers "big issue" is drinking and that Mother takes the children to Grandmothers house after "bad arguments" with Father.

Second, it can be reasonably inferred that the children are in danger of being hit by a thrown object during one of Mother and Fathers arguments. Mother reported that Father threw a package of cigarettes at her on July 30, 2007. Mother also alleged, under penalty of perjury, that Father threw objects at her on October 6, 2007. Mother and Father do not have stable housing and sometimes stay in motel rooms or their van. Accordingly, when the family is at a motel, if Mother and Father begin arguing when the children are asleep, the children are likely sleeping in the same room where Mother and Father are arguing and throwing objects. Accordingly, the children are at risk of being hit by a thrown object.

Third, it can be reasonably inferred that Mother and Fathers arguments are an ongoing problem, because (1) Mother applied for a restraining order three days before the jurisdiction hearing alleging, under penalty of perjury, three separate and recent incidents of domestic violence committed by Father; (2) both T.A. and C.R. described Mother and Fathers drinking and fighting as though it were a regular occurrence; (3) Mother and Father have prior convictions for driving under the influence; and (4) neither Mother nor Father were participating in treatment for alcohol abuse.

In sum, substantial evidence supports the courts finding by a preponderance of the evidence that T.A. and C.R. were at a substantial risk for suffering serious physical harm, as a result of the failure or inability of Mother to adequately supervise or protect the children.

We now address Mothers arguments. First, Mother contends the courts finding that she failed to comply with the safety plan, i.e., obtain a restraining order against Father, is not supported by substantial evidence. We disagree.

When the Department employee met with Mother on July 30, 2007, the employee directed Mother to obtain a restraining order. At the jurisdictional hearing, it was revealed that on July 31, 2007, Mother was informed by the Family Resource Center that she would likely not qualify for a restraining order, because "mother reported she was not at risk and really did not need help." On October 15, 2007, three days before the jurisdictional hearing, Mother filed an application for a restraining order.

The courts finding that Mother did not comply with the safety plan is supported by Mother not applying for the restraining order in a timely manner. Mother was directed to apply for the restraining order based upon her reported fight with Father at the motel where Father threw a package of cigarettes at her and tried to prevent her from leaving with the children. Mothers decision to report to the Family Resource Center that she was not at risk and did not need help provides substantial evidence of noncompliance with the safety plan, because it can be reasonably inferred that Mother did not disclose all the facts concerning her fight with Father when discussing the restraining order with the Family Resource Center. In sum, substantial evidence supports the courts finding that Mother did not comply with the safety plan.

Mother goes on to argue that any delay in applying for the restraining order should not have concerned the juvenile court because the issue at the jurisdiction hearing is whether circumstances at the time of the hearing subject the minors to a defined risk of harm. Essentially, Mother contends that since she applied for the restraining order three days before the jurisdiction hearing, the circumstances at the time of the hearing were safe. The flaw in this argument is that Mother had previously failed to enforce restraining orders against Father. If the new restraining order had been applied for in a timely manner, there would have been time to assess whether Mother would enforce the new restraining order; however, because Mother delayed in obtaining the new restraining order, there were no means by which the court could assess if this new restraining order would actually provide for the childrens safety. Accordingly, we find Mothers argument unpersuasive, because substantial evidence supports the juvenile courts finding that the minors were still subject to a defined risk of harm due to Mother not complying with the safety plan in a timely manner.

Second, Mother contends there is no competent evidence supporting a finding that Mother and Fathers fights expose T.A. and C.R. to a substantial risk of physical harm. As concluded ante, it can be reasonably inferred that T.A. and C.R. are at risk of physical harm when Mother drives with them while under the influence of alcohol or when Mother and Father throw objects at one another. Accordingly, we find Mothers argument unconvincing.

2.

DISPOSITION HEARING

A. Sufficiency of the Evidence

Making a similar argument as that made ante, Mother contends that the trial courts order removing the children from her physical custody was not supported by substantial evidence. We disagree.

"`[I]n dependency proceedings the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor[s are] to be removed from [their] home. [Citations.]" (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) Before custody of a child may be awarded to a nonparent, the petitioner must prove by clear and convincing evidence that placing the child in the offending parents custody would be detrimental to the child because "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor." (§ 361, subd. (c)(1); see In re Isayah C., supra, 118 Cal.App.4th at p. 694.)

Although C.R. was placed with his presumed father, D.R., who is a nonoffending parent (§ 361.2), we analyze the evidence as though both children were placed with nonparents.

"We review the record in the light most favorable to the trial courts order to determine whether there is substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing evidence standard. [Citation.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.]" (In re Isayah C., supra, 118 Cal.App.4th at pp. 694-695.)

As detailed ante, it can be reasonably inferred from the record that Mother drove with the children while she was under the influence of alcohol; that the children were present when Mother and Father threw objects at one another; and that these behaviors would likely continue because Mother was not seeking treatment for her alcohol abuse.

We note that Mother sought a restraining order against Father prior to the jurisdiction hearing; however, there is nothing in the record at the disposition hearing showing that Mother was enforcing the restraining order. Rather, the record reflects that Mother repeatedly tried to contact Father, but had been unsuccessful because Father was homeless. Because Mother was attempting to contact Father, it can be reasonably inferred that their arguments would continue to be an ongoing issue, and therefore the children would not be safe in Mothers care.

Additionally, Mother claimed to be attending Alcoholics Anonymous meetings; however, Mother withdrew her consent for the release of information regarding her substance abuse counseling, which meant no report was provided concerning whether Mother was progressing in her sobriety.

In sum, we conclude the evidence detailed ante provides clear and convincing proof that it would be detrimental to T.A.s and C.R.s welfare to return them to Mothers care, because there is or would be a substantial danger to the physical or emotional well-being of the children.

B. Findings

Mother contends the juvenile court erred by not making the proper findings prior to ordering the children be removed from her physical custody. We disagree.

In her appellants opening brief, Mother notes that prior to ordering a child be removed from a parents physical custody, a court must (1) determine whether reasonable efforts were made to prevent the removal; and (2) state the facts that caused the court to conclude that the child must be removed. (§ 361, subd. (d).) Mother writes that the "court failed to do the latter," i.e., state the facts. However, Mother goes on to argue that the court "failed to consider less drastic measures." In order to ensure that we address whichever argument Mother is attempting to advance, we will analyze whether the court completed both requirements.

When a court removes a child from the custody of an offending parent, it must (1) determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home"; and (2) state on the record "the facts on which the decision to remove the minor is based." (§ 361, subd. (d).)

(i) Stating the Facts

We begin by analyzing whether the court stated the facts on which it based its decision to remove the children from Mothers custody.

When the court rendered its ruling at the disposition hearing, it noted that it adopted the findings on page 19 of the Departments November 27, 2007 report. Page 19 of the Departments report, includes the following finding: "The extent of progress that has been made by the parents, [Mother and Father], toward alleviating or mitigating the causes necessitating placement has been unsatisfactory." Also included on page 19 of the report is the finding that "[t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody."

We conclude that the courts statement on the record that it adopted the findings in the Departments report satisfies the requirement that the court state the facts on which it based its decision to remove the children. In sum, we conclude the court did not err.

(ii) Reasonable Efforts

Next we analyze whether the court determined if reasonable efforts were made to prevent or eliminate the need to remove the children from their home.

As to T.A. the court stated, "I do find that reasonable efforts have been made to prevent or eliminate the need for the removal of the minor from the home."

In regard to C.R., the court said, "I do find that reasonable efforts have been made to prevent or eliminate the need for the removal of the minor child from the home of the mother."

Based upon the these two statements, we conclude that the court made the required findings that reasonable efforts had been made to prevent or eliminate the need for removing the children from their home.

DISPOSITION

The judgments are affirmed.

We concur:

Hollenhorst, Acting P.J.

Gaut, J.


Summaries of

In re T.A.

Court of Appeal of California
Sep 5, 2008
No. E044788 (Cal. Ct. App. Sep. 5, 2008)
Case details for

In re T.A.

Case Details

Full title:In re T.A. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE…

Court:Court of Appeal of California

Date published: Sep 5, 2008

Citations

No. E044788 (Cal. Ct. App. Sep. 5, 2008)