Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.) Jacqueline H. Lewis, Commissioner. Petition denied. Los Angeles County Super. Ct. No. CK65573
Law Offices of Alex Iglesias, Steven D. Shenfeld and David Moore for Petitioner.
No appearance for Respondent.
Robert E. Kalunian, Acting County Counsel, and Navid Nakhjavani, Senior Associate County Counsel, for Real Party in Interest Los Angeles County Department of Children and Family Services.
BIGELOW, J.
Petitioner J.B. (father) is the father of I.M., a six-year-old girl who was first detained from her mother’s custody in late 2006. After I.M.’s detention, the juvenile court sustained various dependency petition allegations, including one alleging that I.M. was at risk because of exposure to domestic violence between her parents. Father received reunification services and appeared to have made sufficient progress for the juvenile court to place I.M. with him in January 2008, after which father began receiving family maintenance services. However, I.M. was redetained five months later, after father was arrested for physically abusing his girlfriend. The juvenile court then sustained a supplemental dependency petition based on this most recent domestic violence incident, as well as father’s history of domestic violence.
I.M.’s mother is not a petitioner in this writ proceeding. Accordingly, our discussion focuses on father.
In June of this year, following a contested 18-month review hearing, the juvenile court terminated services for father and scheduled a hearing for the selection and implementation of a permanent plan for I.M. (Welf. & Inst. Code, § 366.26).
All statutory references are to the Welfare and Institutions Code.
Father filed a writ petition challenging the juvenile court’s decision. (Cal. Rules of Court, rule 8.452.) He claims substantial evidence does not support the juvenile court’s finding that returning I.M. to his custody would create a substantial risk of detriment to her. The Los Angeles County Department of Children and Family Services (Department) filed a letter advising that it is not taking a position with respect to father’s petition.
We conclude that substantial evidence supports the challenged finding. Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, the Department received a child abuse hot line referral alleging general neglect and physical abuse of the oldest of I.M.’s three older half-siblings. (For simplicity, we refer to the half-siblings as siblings.) At the time, then three-year-old I.M. and her siblings were living with their mother. I.M.’s father – who was never married to I.M.’s mother – did not reside in the same home, but he was reportedly involved in I.M.’s life.
The Department received the referral after police responded to the oldest sibling’s school, where they observed several scratches on the 12-year-old sibling’s arm. The child confirmed that mother had inflicted the scratches and reported that mother was drunk at the time. According to the child, mother drank alcohol on a daily basis and was often drunk. The child claimed to have observed domestic violence altercations between mother and father. The child declared she was afraid of residing at home and she expressed a desire to be placed with I.M.’s father.
The two fathers of the three older siblings were reportedly not involved in their children’s lives.
The second-oldest sibling (then age nine) offered similar statements. He also reported hearing father threaten to kill mother. The third sibling (then age six) denied having knowledge of any of the facts reported by his siblings. I.M. was too young to offer any meaningful statements.
Mother admitted that she and father had been involved in physical altercations in the children’s presence. Father denied exposing the children to domestic violence, but admitted the children were present when mother threw a telephone at him on one occasion, and when she attempted to attack him with a machete on another occasion. He denied being arrested for domestic violence, while at the same time stating that he was on probation and was attending domestic violence classes. According to father, he and mother had not been involved in a relationship for the past year. He expressed a desire to reunite with I.M.
The Department detained all four children, placed them in foster care, and filed a dependency petition on their behalf. The petition contained several allegations concerning mother’s alcohol use and physical abuse of two of I.M.’s siblings, as well as allegations concerning father and mother’s exposure of the children to domestic violence.
At the conclusion of the detention hearing, the juvenile court found a sufficient basis for the detention and ordered that the children remain in foster care. The court ordered monitored visits for father and mother.
In a jurisdictional/dispositional report from December 2006, the Department reported on various interviews it had conducted. I.M.’s oldest sibling claimed father had slapped mother three or four times. She also reported waking up one night to find father choking mother. The child tried throwing a pool ball at father, but father let go of mother when he saw her (the child).
The second-oldest sibling also reported that father “chokes my mom.” He also claimed father pulls mother’s hair and related one incident when father pushed mother against a fence, causing her lip to swell.
In his interview, father admitted fighting with mother. He denied threatening to kill mother, choking mother, striking her, pulling her hair or pushing her against a fence. He admitted only that he and mother “would push each other.” He claimed there were only two incidents of domestic violence. In 2005, mother “made allegations to the Court.” According to father, he did not want to go to trial, so he went to domestic violence counseling. Father recently completed a domestic violence program. He and mother separated in December 2005. Father lives with another woman, with whom he has one child.
It appears that sometime in December 2006, the children were placed with their maternal grandmother, but they were redetained that same month and placed in foster care after the grandmother requested their removal.
The grandmother’s request came after the second-oldest child reportedly threatened to kill her. It was also reported that the same child would hit and kick his siblings. He was described as being out of control. Another child also reportedly would not listen to the grandmother.
At the end of January 2007, the Department reported that father’s monitored visits with I.M. were going well. The Department recommended that the court approve unmonitored visits, with discretion to liberalize to overnight visits.
In early February 2007, father pled no contest to an amended petition which included findings that all children were at risk because they had been exposed to domestic violence between father and mother (including one involving a gun). As part of the negotiated disposition, father was ordered to attend family counseling. Father was permitted to have unmonitored visits with I.M., including overnight visits.
In June 2007, and in anticipation of the six-month review hearing, the Department reported that father had been visiting I.M. (along with her siblings) consistently. No problems were reported. Father had complained to the Department that mother calls him and threatens him with violence. On one occasion, she confronted him outside a store, yelled profanities at him, kicked him and tried to choke him. The Department also reported that I.M. (then almost four years old) claimed that father and her oldest sibling had sexually abused her. She was taken to a hospital for a forensic interview. The referral was closed as unfounded. The Department also noted that father had not yet participated in family counseling.
The six-month review hearing was continued. In July 2007, the Department reported that father was living in a two-bedroom home with his girlfriend and her two daughters, one of whom is father’s. Father wanted I.M. to be placed in his home. The Department also reported that I.M.’s oldest sibling had advised that a relative of father was claiming father’s girlfriend was verbally abusive toward I.M. In addition, the sibling claimed I.M. disclosed to her that the girlfriend hit her and pulled her hair. I.M. denied to both her foster parent and a Department social worker that the girlfriend had hit her. When the foster parent asked I.M. if she wished to live with father, sometimes she responded in the affirmative and sometimes in the negative. The Department asked that the court order father’s unmonitored visits to take place outside his home until it could further investigate the allegations concerning father’s girlfriend.
In July 2007, the juvenile court again continued the six-month review hearing. It ordered the Department to provide a supplemental report regarding the allegations involving father’s girlfriend. In the interim, it ordered that I.M. not be left alone with the girlfriend. The court also issued a temporary restraining order against mother, requiring her to stay away from father and from the children when they are in father’s care.
Later that month, the Department reported that I.M. had advised both a Department social worker and an emergency response worker that she did not want to live with father, but she would not explain why. Father and the girlfriend both claimed I.M. was never left alone with the girlfriend. The girlfriend denied ever hitting I.M. I.M.’s foster mother did not observe any signs of abuse or neglect when I.M. returned from overnight weekend visits.
In early August, the court ordered additional services for father, but it advised father that if I.M. could not be returned to his custody at the 12-month review, reunification services could be terminated and a section 366.26 hearing scheduled for the selection and implementation of a permanent plan for I.M.
In anticipation of the 12-month review, the Department reported in December 2007 that father’s visits with I.M. had been consistent. Father had started participating in parenting classes. Mother had allegedly told I.M. that father had beaten her, prompting I.M. on one occasion to not want to talk to father when he called. I.M.’s foster mother reported that father appears to take good care of I.M. and I.M. does not want to part from him when he returns her from visits. The Department recommended that the court return I.M. to father and that he be provided with family maintenance services.
In January 2008, the juvenile court terminated reunification services for mother, and it placed I.M. with father, while ordering the Department to provide family maintenance services.
The court also scheduled a section 366.26 hearing for the selection and implementation of a permanent plan for I.M.’s three siblings.
According to a May 2008 Department report, father was participating in parent education classes and I.M. was doing well in his home. The following month, however, the Department detained I.M. and filed a supplemental dependency petition on her behalf. The Department took this action after father was arrested following a domestic violence incident with his girlfriend. When police arrived, the girlfriend claimed father had punched her. Police observed a one-inch cut under the girlfriend’s nose with dried blood around it. When the Department filed its detention report, father was still in custody. The Department placed I.M. in foster care. The juvenile court approved the detention and ordered that I.M. remain in foster care. It ordered that father’s visits with I.M. be monitored.
In a report prepared in July 2008 in anticipation of the jurisdictional hearing on the supplemental petition, the Department offered father’s version of the events leading up to his recent arrest. According to father, he went out at night to play pool with friends. Someone at the girlfriend’s workplace told her that father was at a bar. When the girlfriend came home from work (apparently close to 2:00 a.m.), she was upset and complained to father. Father claimed he and the girlfriend did not raise their voices, but the girlfriend “came at [him]” and scratched him on the neck. Father maintained that he covered himself, pushed her away and told her to get out. The girlfriend called 911, but then hung up. When the 911 operator called back, father stated that everything was okay. The girlfriend left and sat on the porch outside. The police arrived and arrested father. Father claimed he did not know the girlfriend had a bloody nose until police showed him pictures at the police station. Father claimed the incident occurred outside I.M.’s presence.
The police report contained the girlfriend’s version of events. She claimed that she and father argued over finances and her late night whereabouts. Father became upset and punched the girlfriend in the face. The girlfriend then scratched father on the side of the neck to keep him from hitting her again. The girlfriend also claimed father picked up the phone and threw it on the floor. As a result, she used father’s cellphone to call police.
The jurisdictional report noted that father had enrolled in a once-weekly domestic violence program. He had also completed 20 sessions in a parenting program, which he was expected to complete in August 2008. Father was visiting I.M. at her foster placement. When he visited for the first time, I.M. did not want to talk to him. The foster mother believed I.M. was upset that father had been gone for days (presumably because of his arrest) and that she was in placement. Subsequent visits took place without incident.
A contested adjudication took place over two court days in October 2008. Before the adjudication began, the Department advised the juvenile court that father was not living with his girlfriend due to a restraining order. Father claimed he and the girlfriend intended to live together again when permitted to do so by the court. Father was visiting with I.M. on a regular basis and the visits were going well.
At the conclusion of the adjudication, the juvenile court sustained the supplemental petition. Among other things, the court found that father had made no progress toward alleviating the problems necessitating I.M.’s removal from father’s custody. However, the court ordered the Department to provide father with additional reunification services. Father was ordered to attend a batterer’s intervention program and individual counseling. Father’s visits with I.M. were to be monitored, though the Department was given discretion to liberalize.
In anticipation of the 18-month review, the Department reported in May 2009 that father had completed parenting classes and 41 of 52 domestic violence counseling sessions. He had also enrolled in individual counseling. Father was absent from I.M.’s life for about one month because he was detained and deported for having an expired visa. Since his return, he has visited with I.M. on a regular basis and the visits were going well. The Department recommended that I.M. be returned to father with family maintenance services.
In late May, the parties appeared for an 18-month review hearing with respect to I.M., and a section 366.26 hearing with respect to I.M.’s three siblings. In connection with I.M.’s matter, I.M.’s counsel stated that I.M. wished to return to father, but counsel declared that father should first complete his domestic violence classes.
Without objection, the juvenile court questioned father under oath regarding the domestic violence that led to his arrest. Father claimed it was “a misunderstanding.” He admitted hitting his girlfriend, but he claimed he did so accidentally. He claimed he did not punch her. He just moved his arm. The court continued the matter for a contest.
The Department submitted another report shortly before the contested hearing in June 2009. Father’s visits were reportedly going well and I.M. stated she wished to live with father. I.M. was acting out sexually, and was also acting out aggressively toward her oldest sibling. The Department reported these matters to I.M.’s therapist. According to the report, father claimed that although he had enrolled in individual counseling, his counseling was suspended because of his deportation and he was placed on the wait list.
At the start of the contested 18-month review hearing in mid-June 2009, the court admitted two recent Department reports into evidence. The first witness to testify was the Department social worker who has been handling I.M.’s case since February 2009. During her testimony, confusion arose concerning the Department’s recommendation. Initially, the social worker stated that the Department was recommending I.M. be returned to father. However, following a short break in the proceedings, the Department’s counsel advised the court that she had spoken with her client and the Department had decided to submit on the court’s tentative (which, presumably, was to not return I.M. to father). The following day, however, the social worker testified that the Department was recommending that I.M. be placed with father.
The social worker testified that she had not observed any anger management problems with father, though she had never observed him with his girlfriend. During her first day of testimony, the social worker testified that she had never seen pictures of the injuries father’s girlfriend sustained during the incident leading to his arrest. When the social worker testified the following day, she stated that she had seen the pictures that morning. The social worker claimed father admitted to her that he hit his girlfriend. But father also told the social worker it was not a domestic violence incident. Father told her he and the girlfriend had an argument, he tried to push her off of him, and “in the process... he caused her injury.” Father stated he caused the injury with his hand, but it was not on purpose. According to the social worker, father admitting to accidentally causing injury was an admission of domestic violence.
The social worker believes father has made substantial progress with respect to domestic violence based on her contacts with him, “the programs that he’s done,” and the fact that “the people around him and the girlfriend and [I.M.] feel safe.” The social worker admitted that she had never spoken with the girlfriend. She was relying solely on what the previous case worker told her.
The social worker testified that father was living with his girlfriend and there have been no additional reports of domestic violence. Even though the social worker had not spoken to the girlfriend about it, she believes the girlfriend would report any additional domestic violence incidents.
Father has completed 44 of 52 domestic violence program sessions. He has also completed a parenting course and participated in family counseling. The girlfriend completed a domestic violence program for victims.
According to the social worker, father has been having weekend visits with I.M. since February. There have been no problems with those visits. I.M. reports that she gets along well with father and his girlfriend. I.M. would like to return to father.
Father testified that he perpetrated acts of domestic violence against both I.M.’s mother and his current girlfriend. When asked what caused his domestic violence against the girlfriend, father responded: “We had an argument because of her jealousy. And,... I was not in the mood when she started demanding things [of] me. She was also upset. And when she saw that I wasn’t paying attention, and I was not listening to her, I just covered myself with my blanket. [¶] I covered myself with my blanket and she pulled it out and scratched my back. So I did like this. (Indicating.) I told her, ‘[g]et away.’ Because it doesn’t make any sense to start fighting.”
When asked if he was claiming that what happened to his girlfriend was an accident, father responded that he did not know how to answer the question. He felt he had mistreated the girlfriend. When asked how he had mistreated her, father responded: “We mistreated each other verbally, because of the excess of words....” When asked whether he had mistreated her physically, father responded: “No. Just what happened on her face.” Later, he testified that he just pushed the girlfriend when she scratched him on the back and he told her to get away. “That’s all that happened.” He admitted pushing her out of anger. The blood on the girlfriend “was caused by the way that [he] pushed her with [his] hand.” Father did not even see the blood until he was shown a picture.
The domestic violence incident he had with his girlfriend was the only domestic violence incident he had since he was placed on probation for the domestic violence involving I.M.’s mother. Father claimed he and his girlfriend currently have no arguments at all. Father did not think he would be violent with his girlfriend because he is on probation and would be punished if he did, and because of his children.
Father claimed that the incidents with mother never involved hitting. “I never hit her or nothing like that.” Father told her to get out and he “forced her out.” Father admitted the incident was his fault because he pushed her out.
Father claimed he “used to” have a problem with anger. He declared he was now “in control” because of the classes he took. Father took one year of domestic violence classes after being placed on probation because of the domestic violence involving I.M.’s mother. However, he was not paying attention when he attended those classes. He went only because they were court-ordered. Father claims he has a different attitude with respect to the current domestic violence classes.
After father testified, counsel for the parties argued. Counsel for the Department stated the Department was recommending that I.M. be placed with father.
I.M.’s counsel acknowledged that I.M. wants to go home. But I.M. was only five years old. (She has since turned six.) Based on father’s testimony, I.M.’s counsel did not believe father had made sufficient progress to warrant returning I.M. to father. I.M.’s counsel would be open to reconsidering the issue in the future by way of a section 388 petition.
Mother’s counsel argued I.M. should not be returned to father. She claimed father was in denial about his domestic violence problems.
Father’s counsel argued that father was not in denial and was not minimizing his domestic violence problems. Counsel asked the court to place I.M. with father.
The juvenile court found that father had not made substantial progress to resolve the issues that led to I.M.’s initial removal. The court noted that father had testified on three separate occasions during the dependency proceeding, and he had yet to take responsibility for his actions. The court observed that father’s testimony did not match the girlfriend’s statements in the police report. In addition, although father testified most recently that the girlfriend scratched him on the back, the police report referred only to scratches to the neck. The court also opined that the girlfriend’s injuries are not consistent with the push described by father. Father has had domestic violence problems with two women and has made no progress after two batterers’ intervention programs. The court was critical of what it described as the Department’s focus on father’s participation in programs, and not on his progress. The court stated it was disconcerting that the current caseworker had never spoken to the girlfriend.
The court was referring to father’s testimony on the original 18-month hearing date in May 2008, his testimony at the contested 18-month review hearing, and apparently his testimony at the adjudication.
After finding that returning I.M. to father would create a substantial risk of detriment to her safety, protection, physical or emotional well-being, the court terminated reunification services for father and scheduled a section 366.26 hearing for the selection and implementation of a permanent plan for I.M.
Father filed a writ petition challenging the juvenile court’s decision. The Department filed a letter advising that it is not taking a position with respect to father’s petition.
DISCUSSION
I. Substantial Evidence Supports the Juvenile Court’s Finding That Returning I.M. to Father Would Create a Substantial Risk of Detriment.
Father’s sole contention is that substantial evidence does not support the juvenile court’s finding that returning I.M. to his custody would create a substantial risk of detriment to her safety, protection, physical or emotional well-being. He claims that in reaching its conclusion, the juvenile court “failed to consider his near-completion of the reunification plan,” noting that father had completed all court-ordered programs except from “a few sessions of domestic violence.” Father is mistaken, and we find substantial evidence supports the juvenile court’s determination.
Section 366.22, subdivision (a), provides in pertinent part that at the conclusion of the 18-month review hearing, “[t]he court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.”
We review the juvenile court’s findings of fact under the substantial evidence test, which requires us to determine whether there is reasonable, credible evidence of solid value to support the order. (In re Brian M. (2000) 82 Cal. App.4th 1398, 1401; Curtis F. v. Superior Court (2000) 80 Cal. App.4th 470, 474.) In so doing, we must resolve all conflicts in support of the court’s determination and indulge all legitimate inferences to uphold the court’s order. If substantial evidence exists, we must affirm. (James B. v. Superior Court (1995) 35 Cal. App.4th 1014, 1020-1021; In re Rocco M. (1991) 1 Cal. App.4th 814, 820; In re Katrina C. (1988) 201 Cal. App.3d 540, 547; In re Tracy Z. (1987) 195 Cal. App.3d 107, 113.)
Here, the juvenile court did not fail to consider father’s participation in court-ordered programs. Instead, the court noted that father’s participation was not sufficient. The court was to look to see if father made sufficient progress in dealing with the domestic violence problems that led (in part) to I.M.’s initial detention. “The fact [a parent] satisfied the requirements of the reunification plan does not mean she was entitled to custody of the minor regardless of the substantial risk of detriment that reunification would have on the minor’s emotional well-being.” (In re Joseph B. (1996) 42 Cal.App.4th 890, 901; see also In re Dustin R. (1997) 54 Cal. App.4th 1131, 1143 [“simply complying with the reunification plan by attending the required therapy sessions and visiting the children... is not determinative”].)
In this case, based on the evidence before it – including father’s live testimony – the juvenile court was entitled to find that returning I.M. to father’s custody would create a substantial risk of detriment to her. Father was involved in domestic violence incidents with two different women. In both cases, there was considerable evidence that father physically abused the women – including statements of the victims, physical evidence and, in the case of mother, statements by two of I.M.’s siblings – yet father denied ever hitting either one of them.
Moreover, the one reported incident involving father’s girlfriend took place after father had already completed a domestic violence program and was on probation for his abuse of mother. It also took place after I.M. had become the subject of this dependency proceeding and father knew he faced losing her if he was not able to demonstrate that he had made sufficient progress to warrant the termination of juvenile court jurisdiction.
In light of the above, we can understand why the juvenile court believed father had made little progress in addressing the problems that led to I.M.’s initial detention and why she would be at risk if returned to his custody. We also note that the juvenile court was not alone in believing I.M. should not be returned to father. I.M.’s counsel shared the same view, notwithstanding the understandable desire of her young client to return to father.
Under this record, we will not second-guess the juvenile court’s finding that returning I.M. to father would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being.
Disposition
The writ petition is denied on the merits. This opinion is final forthwith as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)
We concur: RUBIN, ACTING P. J., FLIER, J.