Opinion
B325862
10-17-2023
In re X.T., a Person Coming Under the Juvenile Court Law. v. A.T., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Law Offices of Vincent W. Davis and Vincent W. Davis for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kirstin J. Andreasen, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County (Los Angeles County Super. Ct. No. 22CCJP04124B), Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Law Offices of Vincent W. Davis and Vincent W. Davis for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Kirstin J. Andreasen, Senior Deputy County Counsel, for Plaintiff and Respondent.
BAKER, ACTING P. J.
The juvenile court assumed dependency jurisdiction over A.T.'s (Father's) son, X.T., based in part on a history of domestic violence between Father and M.M. (Mother). We are asked to decide whether substantial evidence supports the jurisdiction finding and the associated disposition order removing the boy from Father's custody.
I. BACKGROUND
A. Initial Dependency Investigation
X.T. was born in March 2022. In October 2022, Mother was arrested following a hit-and-run collision. X.T. and a maternal half-sibling, S.C., were in the car, and Mother was found to be under the influence of alcohol. S.C. suffered a bloody nose in the collision and reported X.T. had not been properly strapped into his car seat (X.T. was uninjured, however).
The Los Angeles County Department of Children and Family Services (the Department) filed a dependency petition alleging Mother's conduct placed X.T. and S.C. at substantial risk of serious physical harm. When a Department social worker asked Mother about Father's identity and whereabouts, Mother said she did not know his name and he was "not in the picture." Mother did say she recently made a pact to stop drinking alcohol "because [of] what is going on with [X.T.'s] father," but she declined to explain what she meant. Mother also alluded to having previously suffered domestic violence but she said she was "no longer with" the person involved.
Mother later completed a parentage questionnaire stating, among other things, that she believes Father is X.T.'s father but Father had not received X.T. into his home. The juvenile court found Father to be X.T.'s alleged father and ordered the Department to conduct a due diligence search for him.
B. Father's History of Domestic Violence
The Department located Father and the juvenile court subsequently found he was X.T.'s presumed father. The Department reported on a history of domestic violence between Father and Mother and amended the dependency petition to allege X.T. was at risk of physical and emotional harm based on the violence between the parents.
According to the Department's reporting, a child welfare referral was made regarding X.T.'s paternal half-sibling, D.T., on March 13, 2022-less than two weeks before X.T. was born. The referring party stated Father pushed Mother, hit her in the face, "grabbed [her] by the neck but did not choke her," and pulled her hair. Mother called the police and obtained a temporary restraining order against Father. Mother subsequently had the restraining order rescinded, but Father was served with a criminal protective order in September 2022 when he was charged with misdemeanor corporal injury to a spouse or cohabitant based on the March 2022 incident.
Mother told a social worker there had been several incidents of domestic violence during her and Father's one-year relationship. Near the beginning of the relationship, Father accused Mother of "being flirty" and "moving in a way to get . . . attention" at a bowling alley. When they argued about the matter in their car, Mother broke a mirror "because [she] wanted [Father] to leave but he would not." Mother exited the car crying, and Father grabbed her by the throat, choked her, and pushed her toward the car.
Later, after Mother became pregnant with X.T. and moved in with Father, Father "pulled [Mother's] hair and put [her] down." On one occasion, Father called Mother a "whore," pulled her hair, "socked [her] in the eye," hit her in the stomach, and choked her. Mother had a bruise on her collar bone and neck, her upper lip was "busted," and one of her nails was "ripped off halfway." When Mother left to stay with her own mother, Father "went looking for [her] and caused a scene," throwing himself in a pool and breaking Mother's phone.
Mother told the social worker that Father "hit [her] in the stomach and [she] was bleeding." It is not clear whether Mother believed the bleeding was potentially related to her pregnancy (as opposed to her "busted" lip), but she went to her doctor for a checkup.
The March 2022 incident occurred after a baby shower for X.T. Father and Mother were on a bed, and Father told Mother he did not want to be with her. Father "shoved [Mother] with his knee on [her] tummy" and pulled her hair and choked her. Mother said X.T.'s paternal half-sibling, D.T., was "in the back of the home" and did not see what happened.
Father acknowledged previous physical confrontations with Mother, including "[o]ne time [when Mother] hit [him] with her fist and [he] hit her back," and "a second time" when Mother threw something at Father and he "grabbed her and told her to calm down." With respect to the March 2022 incident, Father explained he told Mother their relationship was not going to work out because she was moving to Fontana and he lived in Reseda. Mother was "hugging [Father]" and "[w]hen [he] got up from the bed, she grabbed [his] arm so [he] would not leave." Father's "elbow hit her accidentally" and "[s]he had a busted lip," but Father denied punching or choking Mother. Father tried to leave the room, but Mother was standing in front of the door arguing about money. When Mother called 911, the operator told her to let Father leave. Father denied any domestic violence with D.T.'s mother.
X.T.'s maternal half-sibling, S.C., told a social worker that Mother said Father "hit her in [the] lip, nail[, . . .] stomach[, and] eyebrow." S.C. never witnessed any physical violence, but she was aware of Father calling Mother "ugly and stupid" and threatening to "punch [Mother] on [her] stomach again."
C. Jurisdiction and Disposition Hearing
At a jurisdiction and disposition hearing in December 2022, Father asked the juvenile court to dismiss the amended dependency petition's allegation regarding domestic violence.Father's attorney questioned Mother's credibility regarding the March 2022 incident, emphasizing she had dismissed the restraining order, she had been in other relationships involving domestic violence, and Father was trying to break up with her in March 2022. Father's attorney also highlighted an inconsistency between Mother's claim that Father choked her and the Department's summary of the previous referral, which indicated Father grabbed Mother by the neck but did not choke her. Father's attorney additionally emphasized that neither X.T. nor his half-siblings witnessed any violence between Father and Mother.
In addition to alleging dependency jurisdiction was warranted based on Mother' drunk driving incident, the amended dependency petition alleged "[t]he children, [S.C.] and [X.T.]'s mother, [M.M.], and the child [X.T.]'s father, [A.T.], have a history of engaging in violent altercations. On 03/13/2022, [F]ather shoved, cho[ ]ked and pulled [M]other's hair during the altercation. Father also punched [Mother's] mouth and as a result, [Mother] sustained bruises on her neck and a busted lip. Further, [F]ather shoved [M]other with [his] knee on [M]other's stomach when she was pregnant with the child, [X.T.]. On prior occasions, [Father] has [choked] and pulled [M]other's hair. Such violent altercations on the part of [Father] against [Mother] endanger[ ] the child [X.T.]'s physical and emotional health and safety and place[ ] [him] and half-sibling, [S.C.,] at risk of physical and emotional harm, damage and danger."
Counsel for X.T. and S.C. asked the juvenile court to sustain the domestic violence allegations because "[b]oth parents still have unresolved domestic violence issues" and "there were approximately three different domestic violence incidents that occurred between [Mother] and [Father]." Minors' counsel emphasized that both parents had previous relationships involving domestic violence. The Department joined minors' counsel's argument.
The juvenile court sustained the dependency petition as pled and assumed jurisdiction over X.T. based on Mother's drunk driving and domestic violence between Father and Mother. With respect to disposition, Father's attorney requested "return to Father, the noncustodial parent, because he's saying it [i.e., the domestic violence] didn't occur ...." Father's attorney argued there was no current risk to X.T. and the criminal protective order "mean[t] reasonable safety measures can be in place to prevent continued removal [sic] of this child from his . . . own father."
The juvenile court ordered X.T. removed from Father and Mother's custody because "both pose substantial danger to [his] physical health, safety, protection, [and] physical and emotional well-being." The juvenile court found there were no reasonable means to protect X.T. without removing him from Father and Mother's physical custody based, in part, on "the unresolved multiple issues of domestic violence." The juvenile court ordered Father to complete a domestic violence program, parenting classes, and individual counseling to address "case issues incl[uding] child protection [and] safety [and] [domestic violence]." Father was granted monitored visitation.
II. DISCUSSION
Father's arguments challenging the juvenile court's jurisdiction finding and removal order lack merit. With respect to jurisdiction, substantial evidence (including admissions by Father) demonstrates there were several instances of domestic violence between Father and Mother-at least one of which occurred when one of X.T.'s half-siblings was in the same house. These established the requisite risk of harm. As for the removal order, it is similarly justified by Father's history of domestic violence. Any error by the juvenile court in making removal findings under the wrong statutory section was harmless in light of that history.
A. Substantial Evidence Supports the Challenged Jurisdiction Finding
The unchallenged jurisdiction finding against Mother supports the juvenile court's exercise of jurisdiction over X.T. regardless of whether the domestic violence finding is supported by substantial evidence. (In re Briana V. (2015) 236 Cal.App.4th 297, 308 ["'[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent'"].) But we will still briefly describe, for Father's benefit, why at least one of the dependency allegations against him was supported by substantial evidence. (See, e.g., In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [affirming finding of jurisdiction over minor because the father did not challenge all bases for jurisdiction, but "not[ing]" the court's view on the challenged finding "[f]or [the] Father's benefit"].)
Welfare and Institutions Code section 300, subdivision (b)(1) authorizes a juvenile court to assume dependency jurisdiction over a child when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . [¶] (A) [t]he failure or inability of the child's parent or guardian to adequately supervise or protect the child." This statutory basis for jurisdiction "does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction." (In re I.J. (2013) 56 Cal.4th 766, 773.) We review the juvenile court's jurisdiction findings for substantial evidence, drawing "'all reasonable inferences from the evidence to support the findings . . . [and] review[ing] the record in the light most favorable to the court's determinations ....' [Citations.]" (In re R.T. (2017) 3 Cal.5th 622, 633.)
Statutory references that follow are to the Welfare and Institutions Code.
Substantial evidence reveals Father behaved violently toward Mother on several occasions, including when Mother was pregnant with X.T. There were multiple instances of choking, one of which prompted Mother to seek care from her doctor. X.T.'s half-sibling on Father's side was present in the home during one incident and his half-sibling on Mother's side heard Father threaten Mother. Courts have repeatedly recognized this sort of violence between parents supports jurisdiction under section 300, subdivision (b)(1). (See, e.g., In re T.V. (2013) 217 Cal.App.4th 126, 134-135; In re R.C. (2012) 210 Cal.App.4th 930, 941-942; In re E.B. (2010) 184 Cal.App.4th 568, 575-576, disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989.)
Father, however, argues he and Mother separated before X.T. was born, which he believes is some indication there is no current risk to the child. But the relatively recent and frequent episodes of violence between Father and Mother and the fact that D.T. was present in the home during one altercation distinguish this case from others in which the parents' separation eliminated the risk of harm to a minor. (Compare In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [emphasizing that "[t]he physical violence between the parents happened at least two, and probably seven, years before the [Department] filed the petition[ and] [t]here was no evidence that any of the children were physically exposed to the past violence between their parents and no evidence of any ongoing violence between the parents who are now separated"], disapproved on another ground in In re D.P. (2023) 14 Cal.5th 266.) Moreover, Father's history of violence with at least one other former partner indicates that his separation from Mother did not eliminate the risk to X.T. (In re L.O. (2021) 67 Cal.App.5th 227, 238 ["'"'[P]ast violent behavior in a relationship is "the best predictor of future violence"'"'"].)
Father also emphasizes Mother's request to dismiss the restraining order in what appears to be an invitation to second-guess the juvenile court's credibility determinations. We decline to do so and, in any case, the inference that Mother dismissed the restraining order in April 2022 because her original account of the March 2022 incident was embellished is undermined by the fact that her statements to the Department later in 2022 are substantially similar to her original account. Moreover, the suggestion that Mother dismissed the restraining order because she lied is no stronger than the inference that her original account was true but she hoped to reconcile with Father or otherwise have continued contact with him.
B. Substantial Evidence Supports the Disposition Order Under Section 361, and Any Error in Failing to Make a Detriment Finding Under Section 361.2 Was Harmless
A juvenile court may not remove a child from a parent "with whom the child did not reside at the time the petition was initiated[ ] unless the juvenile court finds clear and convincing evidence that there would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child for the parent . . . to live with the child or otherwise exercise the parent's . . . right to physical custody, and there are no reasonable means by which the child's physical and emotional health can be protected without removing the child from the child's parent's . . . physical custody." (§ 361, subd. (d).) "'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.' [Citation.] The court may consider a parent's past conduct as well as present circumstances. [Citation.]" (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.)
We review the juvenile court's order removing X.T. from Father's custody for substantial evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 154-155; see also O.B., supra, 9 Cal.5th at 1011.)
Father's contention that removal was unwarranted because "[t]he child was detained because of [Mother's] conduct" fails because the juvenile court asserted jurisdiction over X.T. based partly on Father's conduct. As we have already discussed, Father had a recent and extensive history of domestic violence with Mother and at least one other former partner. X.T.'s paternal half-sibling was in the home during one physical altercation and X.T.'s maternal half-sibling heard Father threaten Mother with violence. Even if Father and Mother remain separated, these facts support the juvenile court's finding, by clear and convincing evidence, of a substantial danger to X.T.'s health and safety. At the time of disposition, Father continued to minimize his role in physical confrontations with Mother, characterizing his actions as accidental or taken in self-defense. (V.L., supra, 54 Cal.App.5th at 156 [affirming removal order where the father "minimize[d] his role" in domestic violence in part because "[a] parent's denial of domestic violence increases the risk of it recurring"].)
Father alternatively contends the juvenile court was required to place X.T. with him in the absence of a detriment finding under section 361.2. That statute provides, in pertinent part, that if a parent "with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300 . . . requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).)
We assume for argument's sake that Father did not forfeit his section 361.2 argument by failing to mention the statute at the disposition hearing. (In re D'Anthony D. (2014) 230 Cal.App.4th 292, 298, fn. 2 [holding that a father's "request[ ] that the children be placed in his custody" was sufficient to "trigger[ ] section 361.2, subdivision (a)'s mandate"]; but see In re John M. (2013) 217 Cal.App.4th 410, 419 ["a parent's failure to raise placement under section 361.2 in the dependency court forfeits the issue"].) We further assume the jurisdiction finding against Father does not render section 361.2 inapplicable. (D'Anthony D., supra, 230 Cal.App.4th at 301 [rejecting "the contention that an implicit 'nonoffending' requirement can be invoked to preemptively deny a noncustodial parent consideration for custody without assessing whether the placement would pose a detriment to the child under section 361.2, subdivision (a)"]; but see John M., supra, 217 Cal.App.4th at 423 [holding that a father's "status as an offending parent under section 300, subdivision (b) preclude[d] him from being considered for custody" under section 361.2].)
If, in light of the foregoing assumptions, the juvenile court erred in failing to consider placement under section 361.2, the error was harmless. The juvenile court found, under section 361, subdivision (d), clear and convincing evidence that there would be "substantial danger to the physical health, safety, protection, or physical or emotional well-being" of X.T. in Father's care. As we have already mentioned, section 361.2, subdivision (a) requires placement with a noncustodial parent in the absence of a finding that such placement would be "detrimental to the safety, protection, or physical or emotional well-being of the child." In D'Anthony D., the Court of Appeal held that the juvenile court's failure to make a detriment finding under section 361.2, subdivision (a) was harmless based on the "similarity" between the detriment finding and the "substantial danger" finding required under section 361, subdivision (c). (D'Anthony D., supra, 230 Cal.App.4th at 303.) The same reasoning applies to the juvenile court's finding of substantial danger in this case under section 361, subdivision (d). (In re S.F. (2023) 91 Cal.App.5th 696, 720, fn. 14].)
DISPOSITION
The juvenile court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: MOOR, J. KIM, J.