Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Commissioner, Super. Ct. No. NJ13627 A-D
BENKE, Acting P. J.
Amber L. and Rodolfo L. appeal the dispositional judgment in the dependency case of their children Valerie, Anthony, Angelica, and Alexia L. Amber and Rodolfo contend the court erred by removing the children from their care because there were less drastic means of protecting the children. We affirm.
I.
PROCEDURAL BACKGROUND
On April 5, 2007, when Valerie was nine years old, Anthony was seven years old, Angelica was three years old, and Alexia was 11 months old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions. The petitions alleged as follows. Beginning in February, the children were periodically exposed to violent confrontations between Amber and Rodolfo. Rodolfo hit Amber and grabbed her by the hair. They had a history of violent confrontations dating back approximately 10 years, including an incident where Rodolfo hit Amber in the head, causing a concussion.
At the jurisdictional and dispositional hearing, the court modified the petitions by replacing "hit" with "kicked."
The three younger children were detained in separate foster homes, then Alexia was moved to Angelica's foster home. Valerie, who was in Mexico with her paternal grandmother when the younger children were detained on April 2, 2007, was detained in a separate foster home one week later. By the time of the June 1 jurisdictional and dispositional hearing, Anthony had been moved to Valerie's foster home.
At trial, Rodolfo testified Valerie's foster mother told him, the previous week, about an incident between the foster father and Valerie. Rodolfo and Amber asked Valerie about it, and she said when they were playing with blocks, the foster father placed a block by his private parts and asked Valerie to get it. Valerie told the foster mother's stepdaughter, the stepdaughter told the foster mother, and the foster mother talked to Valerie and called the social worker's supervisor. At trial, the social worker stated she talked to Valerie on May 29, 2007, her first day back from vacation; prohibited the foster father from being alone with Valerie or Anthony; and planned to move the children that day. She said Valerie was going to Casa de Amparo, and Anthony and Alexia were going to a foster home — Alexia's foster parent had given a seven-day notice. The court inquired whether the Agency had undertaken an investigation, and expressed its confidence protocol would be followed.
The court entered true findings on the petitions. It found, by clear and convincing evidence, there would be a substantial danger to the children's physical health if they were returned home, there were no reasonable means of protecting them without removing them from Amber and Rodolfo's physical custody (Welf. & Inst. Code, § 361, subd. (c)(1)) and reasonable efforts had been made to prevent or to eliminate the need for removal (§ 361, subd. (d)). It declared the children dependents, ordered they be removed from parental custody and placed in foster care, and ordered the Agency to use its best efforts to place them together.
All statutory references are to the Welfare and Institutions Code.
II.
FACTUAL BACKGROUND
A. History
Amber and Rodolfo's relationship began in 1995 when they were teenagers. Their arguments involved pushing and hitting. On one occasion, Rodolfo bit Amber's arm, leaving a scar. Amber verbally abused Rodolfo in the children's presence.
In 1995 Amber hit Rodolfo in the back, and he hit her on the side of the head. She suffered a concussion and went to the hospital. He also hit her when she was pregnant with Anthony. In 2001 Amber and Rodolfo separated.
The next violent incident occurred in 2002. Amber was smoking methamphetamine and blew smoke in Rodolfo's face. He hit her and was arrested and ordered to attend a 52-week domestic violence program. Amber was incarcerated for at least a year for a drug-related offense and a fraud offense. Amber and Rodolfo had their first voluntary contract (§ 301) with the Agency for approximately one month in 2002.
There was another violent incident in 2003. Amber and Rodolfo separated at some point, reuniting in 2005. The family had a second voluntary contract with the Agency from August 31, 2005 to November 15, 2006. During that time they received marital counseling. On November 3, 2006, Rodolfo sought a dissolution of marriage and a restraining order against Amber, claiming she slapped Valerie and drew blood, verbally abused the children, and verbally abused him in front of the children.
Amber and Rodolfo have a child welfare history dating from 1998. It includes substantiated reports of physical and emotional abuse by Amber, neglect, and "substantial risk."
B.
The February 2007 Incident
Amber reported that on February 27, 2007, Rodolfo punched her in the face when the children were present in the home. At the time of this incident, the family had another voluntary contract with the Agency.
A social worker interviewed Valerie and Anthony. They denied seeing their parents hit each other, but stated Amber said "bad words." Valerie and Anthony also stated Amber yelled at Anthony and spanked him, and once, a long time ago, used a hanger.
The social worker interviewed Amber on March 6, 2007. Amber said Rodolfo "slapped her on the top of the head with an open hand," rather than punching her. She minimized the children's presence. She said she cursed at Rodolfo and left the home. The social worker asked Amber whether she would consider another voluntary contract that would require her to continue taking a parenting course, participate in an anger management program, and possibly receive marital counseling. Amber said she was not sure. At trial, she testified that in February Rodolfo merely tapped her head with the four fingers of his open palm.
The social worker interviewed Rodolfo on March 7, 2007. He denied punching Amber in the face but admitted "smacking [her] on the top of her head with his open hand." He said he understood that domestic violence affected the children emotionally and psychologically, but was unsure whether he would agree to another voluntary contract. At trial, Rodolfo testified he did not hit Amber and did not remember tapping her.
On March 19, 2007, Amber and Rodolfo called the social worker and asked her to come to their home. The social worker first interviewed Rodolfo alone. He said that when he came home for lunch, Amber was not there; she had left the children with a maternal uncle, but the uncle was taking a shower and his girlfriend was in the home. Rodolfo was angry because he believed Amber had left the children alone. Amber, who did not have a driver's license, had driven to the drug store to ask the pharmacist what kind of medicine was appropriate for a sick child and for herself. When the social worker spoke to Amber and Rodolfo together, they said they wanted a voluntary contract.
On March 26, 2007, Rodolfo called the social worker and said Amber allowed the children to go swimming in the community pool alone. Amber told Rodolfo someone was watching the children, but Rodolfo did not know who that person was. They argued and she left. At 9 p.m. Amber returned and they argued again. She left again, taking Valerie with her. Amber and Valerie apparently returned later that night. Rodolfo told the social worker he had changed the locks and was going to seek a dissolution of marriage and custody of the children.
Anthony told the social worker he swam in the pool by himself or with his friends. He also said he watched his sisters at the playground and knew to go home when it got dark.
C.
The March 2007 Incident
On April 2, 2007, the social worker went to the home in response to another report of domestic violence. The three younger children were home, along with two other children Amber was babysitting. It appeared Amber was lying in her bedroom rather than supervising the children.
Amber said that the past weekend she and Rodolfo argued, and he called her demeaning names, grabbed her hair, pulled it, and punched her in the side of the head. Amber showed the social worker a nickel-sized faint bruise on her shin and said Rodolfo kicked her. Amber said Anthony yelled for Rodolfo to stop, but he would not stop, and Alexia started crying. Amber admitted she did not call the police.
The social worker interviewed Anthony. He said that while he was lying on Amber and Rodolfo's bed with them, Rodolfo started yelling at Amber, she yelled back, they both swore, and he grabbed her by the hair and yanked it hard. Anthony was scared and yelled at Rodolfo to stop, but he would not stop. Valerie and Angelica were asleep in the living room, but Alexia woke up and cried because of the yelling.
On April 2, 2007, after the social worker took the three youngest children into custody, Amber said she wanted a voluntary contract. Amber and Rodolfo told the social worker they intended to remain together.
On April 3, 2007, Rodolfo telephoned the social worker and said he could not go on with the marriage and had to get the children back on his own. He said Amber was moving out of the home. On April 4 Amber telephoned the social worker and said Rodolfo made this statement because "others" told them they could get the children back faster if they separated. Amber said she was still living with Rodolfo. Later that day Rodolfo told the social worker he and Amber were living together only because she had nowhere to go.
At trial, Amber testified Rodolfo did not kick her; he merely grabbed her shirt to get her to stop swearing, and unintentionally pulled her hair in the process. She testified she told the social worker she probably got the bruise when Rodolfo poked her in the head, and she bumped into the bathroom door. Amber testified that she understood that witnessing the incident upset and frightened Anthony, the children did not like to witness the arguments and it was not good for them.
Rodolfo testified he did not pull Amber's hair, he grabbed her shirt because she was trying to get Anthony out of the bed although he was asleep. He testified he did not remember that she hit her head on the door and could not say whether it happened.
Amber and Rodolfo both testified they intended to remain together.
III.
DISCUSSION
Amber and Rodolfo contend the court erred by removing the children from their care because there was minimal danger to the children and there were less drastic means of protecting them. Amber additionally contends the court failed to determine what reasonable efforts were made to keep the children in their home (§ 361, subd. (d)).
Section 361, subdivision (c)(1) states: "A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds [by] clear and convincing evidence . . . [t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents' . . . physical custody. . . . " Section 361, subdivision (d) provides: "The court shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based."
"A removal order is proper if it is based on proof of parental inability to provide proper care for the minor and proof of a potential detriment to the minor if he or she remains with the parent. The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, citations omitted, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) "[V]iolence in the same household where children are living is a failure to protect [the child] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." (In re Heather A. (1996) 52 Cal.App.4th 183, 194.) The juvenile court is entitled to consider the parents' past conduct and current situation, and gauge whether they have progressed sufficiently to eliminate the risk to their children. (In re S. O. (2002) 103 Cal.App.4th 453, 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.) "[A] measure of a parent's future potential is undoubtedly revealed in the parent's past behavior with the child." (In re Laura F. (1983) 33 Cal.3d 826, 833.)
"Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we 'accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]' (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 [82 Cal.Rptr.2d 426].) The appellants have the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420 [159 Cal.Rptr. 460].)" (In re Diamond H., supra, 82 Cal.App.4th at p. 1135.)
Amber and Rodolfo have a history of violence and a child welfare history of many years' duration. They have received three voluntary contracts with the Agency and the latest was in effect during the February 2007 incident of violence. Amber and Rodolfo were offered services including a 52-week domestic violence program for Rodolfo, approximately one year of in-home parenting instruction, and marital counseling. They worked on their communication skills and wrote rules concerning their interaction with each other, including no name-calling or intentional angering of each other, respecting boundaries, taking time-outs, and airing grievances when they arose. During one of the voluntary contracts, Amber was "highly encouraged" to participate in an anger management program.
At the inception of this case, the children were also receiving counseling.
Amber did not participate in an anger management program. Although Rodolfo completed a domestic violence program several years before the inception of this case, he continued to be violent. He admitted he should have walked away and left Amber alone, but could not explain why he failed to do that. Amber's former social worker instructed her that when violence occurred, she should leave rather than react. After the February incident, the current social worker explained to Amber how domestic violence affects children emotionally and psychologically, outlined the child abuse laws and the need to protect the children, explained "the power and control wheel and safety plan," and gave her a packet of information. Within several weeks of that conversation, there was more violence. This violence occurred while Anthony was lying on a bed with Amber and Rodolfo, and Amber did not call the police. As stated above, "violence in the same household where children are living . . . is a failure to protect [the child] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." (In re Heather A., supra, 52 Cal.App.4th at p. 194.) This principle applies with yet more force to violence in the same bed where a child is resting.
At the time of trial, Amber was enrolled in a domestic violence program and had attended four classes. She was also in individual therapy for the first time in her adult life, and had attended three or four weekly sessions. Rodolfo had attended four sessions of a new domestic violence course and three sessions of individual therapy. He testified he now understood that Amber's molestation as a child affected her behavior. Amber accepted that "when you curse and stuff like that," it negatively affects children. She testified that her arguments with Rodolfo probably escalated into physical confrontations because she had "a lot of anger from [the] past." Thus, Amber and Rodolfo had just begun to attempt to resolve their recurring violence. The court found they were genuinely concerned about the children, but greatly minimized the violence that had occurred. This finding is supported by substantial evidence. In addition to the testimony cited above, at trial Amber disagreed with the notion there had been "a lot of conflicts" in her 12-year relationship with Rodolfo. She told the social worker that she and Rodolfo "rarely hit one another [and] rarely call each other names." Rodolfo told the social worker that he had done everything the Agency and the court had asked him to do.
In view of their minimization of the domestic violence, it is difficult to see how Amber and Rodolfo could be trusted to comply with any conditions imposed to keep the children safely at home. The children were young: one, three, seven, and nine years old. Speaking honestly about any violent incidents — which would be critical to the children's safety — is not something either parent did at trial. Furthermore, Rodolfo articulated what he should have done, but continued to be violent, and had no insight into his behavior. Clearly, allowing the children to remain in the home with just one parent was not an option, as Amber and Rodolfo stated their intent to remain together.
Amber relies on In re Basilio T. (1992) 4 Cal.App.4th 155, in which this court reversed the dispositional order. (Id. at p. 169.) The basis for the removal order in that case was former section 361, subdivision (b)(1), which required a substantial danger to the child's physical health. (In re Basilio T., supra, 4 Cal.App.4th at p. 170.) The statute at issue here, on the other hand, requires a substantial danger to the child's "physical health, safety, protection, or physical or emotional well-being." (§ 361, subd. (c)(1); but see In re Isayah C. (2004) 118 Cal.App.4th 684, 698.) Furthermore, in In re Basilio T., supra, 4 Cal.App.4th at p. 155, the only viable evidence comprised two incidents of domestic violence. (In re Basilio T., supra, 4 Cal.App.4th at p.171.) Such is not the case here.
In re Isayah C., supra, 118 Cal.App.4th at page 698, the court stated: "The case law, while not discussing the issue explicitly, appears to interpret paragraph (1) of section 361(c) to require a threat to physical safety, not merely emotional well-being, in order to justify removal. [Citations.] We concur in this interpretation, which is bolstered by the existence of a separate provision within section 361(c) governing removal based on emotional harm, which requires 'severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior . . . .' (§ 361(c)(3).) If we interpreted paragraph (1) to permit removal based on a danger only to the minor's emotional well-being,' this would violate the rule that a statute should not be construed to render any of its provisions superfluous. [Citation.]"
Finally, we reject Amber's contention the court failed to determine what reasonable efforts were made to keep the children in their home (§ 361, subd. (d)). As mentioned above, this family had two voluntary contracts with the Agency and was offered extensive services. The court determined an additional voluntary contract was not appropriate, stating, "This is a very serious case of domestic violence. It's one that requires much more close monitoring than a voluntary contract arrangement would provide."
Substantial evidence supports the removal order.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., McINTYRE, J.
Amber's counsel incorrectly assumes the court's finding was pursuant to section 361, subdivision (c)(3).