Opinion
B319406
06-02-2023
In the Matter of I.M. et al., Persons Coming Under Juvenile Court Law. v. J.D., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP02007A-C, Gabriela H. Shapiro, Judge Pro Tempore. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
MORI, J.
INTRODUCTION
J.D. (mother) appeals from the juvenile court's dispositional order removing her children from her physical custody under Welfare and Institutions Code section 361.She challenges the sufficiency of the evidence to support the removal order. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
Mother has three minor children: Isiah M. (born April 2010), Aubrey D. (born June 2015), and Jeremiah D. (born August 2018). B.M. is Isiah's father. G.D. is Aubrey's and Jeremiah's father. The children's respective fathers are not parties to this appeal.
The family had a history of child welfare referrals to the Los Angeles County Department of Children and Family Services (DCFS). On May 7, 2013, DCFS received a referral alleging mother was using marijuana and possibly other drugs and Isiah was the victim of general neglect. The referral was substantiated and subsequently closed after Isiah was placed in a temporary legal guardianship with his maternal grandmother. DCFS received two more referrals, on June 28, 2018, and July 24, 2018. The first referral alleged domestic violence between mother and G.D. while mother was pregnant with Jeremiah, and the second alleged Isiah and Aubrey were victims of general neglect. The referrals were substantiated and closed after mother obtained a three-year restraining order on August 20, 2018, protecting her and the children from G.D. On March 26, 2020, DCFS received a referral alleging mother yelled and cursed at the children, engaged in violent altercations with G.D., and instructed G.D. to run when police were called to the home. The referral also alleged G.D. was involved in a car accident while intoxicated. The referral was closed as inconclusive.
On April 25, 2021, DCFS received the most recent referral alleging the children were victims of emotional abuse by G.D. and general neglect by mother. On April 24, 2021, law enforcement responded to a domestic violence altercation between mother and G.D. Mother reported that G.D. pushed her a couple times and punched her. Mother's ear was bleeding, and both Aubrey and Jeremiah were present during the violence. The children were crying but were not injured. G.D. fled the scene and had a warrant out for his arrest due to the prior domestic violence between him and mother. Mother also stated there was an unreported physical altercation where G.D. hit her in the presence of the children within the last month. Mother acknowledged there was a restraining order protecting her from G.D. but it was terminated upon her request. G.D. thereafter reportedly resided in the home. Law enforcement stated mother refused an emergency protective order (EPO).
DCFS obtained a copy of the July 17, 2020, court order terminating the August 20, 2018, restraining order issued protecting mother from G.D. The order documented that the restraining order was terminated at mother's request.
A social worker subsequently responded to the family home with two police officers. Law enforcement had previously responded to the home multiple times for domestic violence disturbance calls. The social worker spoke with mother. Mother reported the April 24, 2021, incident occurred after she confronted G.D. about possibly stealing money from their savings account for his drug use. According to mother, G.D. had been using methamphetamine since he was 15 years old. G.D. was upset that she questioned him about the money, and during the confrontation, he became progressively angrier. He refused to let her and the children leave the home, snatched her purse strap, pulled her down, dragged her into their bedroom, verbally threatened her, and punched her several times. Mother reported G.D. then took her vehicle keys and money from her wallet. The children were standing at the front door of the home when the altercation occurred. Mother denied refusing an EPO and maintained she was told she did not need one because there was already a protective order in place until August 2021. Mother said she was instructed to call the police if G.D. came to the family home. She admitted G.D. came to the home the day after the incident, on April 25, 2021, and begged her to take him back, but she refused. Mother denied permitting G.D. to enter the home.
The social worker observed bruising behind mother's ear and on her left arm. Mother admitted to multiple reported and unreported incidents of domestic violence with G.D. Mother said she called law enforcement in the past but G.D. always fled before they responded to the scene. Mother confirmed G.D. also injured her during their prior altercations. She further stated G.D. was verbally and emotionally abusive. However, mother continued to let G.D. return to the home despite physical violence and his substance abuse. Mother said she once refused to take him back and that he responded by breaking the window and climbing inside the home. Mother acknowledged she had wanted to work things out with G.D. after their previous involvement with DCFS.
The social worker interviewed Isiah, who denied witnessing the incident or that there was a history of domestic violence or drug use in the home. Isiah appeared very guarded and protective of mother. Mother reported Isiah's father (B.M.) was incarcerated.
On April 27, 2021, the juvenile court authorized DCFS to remove the children from parental custody. All three children were placed with Estrella D., Aubrey and Jeremiah's paternal aunt.
On April 28, 2021, mother reported G.D. attempted to contact her in-person at her place of employment. Mother contacted law enforcement, but G.D. was not located.
On April 29, 2021, DCFS filed a dependency petition on behalf of the children under section 300, subdivisions (a) and (b)(1). The petition was based on the violent altercations between mother and G.D. in the children's presence, and mother's failure to protect the children.
At the May 4, 2021 detention hearing, the parents and the children were not present. The juvenile court made emergency detention findings and orders and continued the hearing to May 6, 2021. At the continued hearing, mother was present. The court made detention findings and orders. The court ordered monitored visitation for mother to occur for two hours at least three times a week.
DCFS obtained mother's criminal history, which indicated she was convicted of felony transportation of a controlled substance in 2013 and registered as a controlled substance offender that same year. Both fathers had extensive criminal histories. G.D.'s criminal history included a 2012 conviction for inflicting corporal injury on a spouse/cohabitant and a 2020 violation of a court order to prevent domestic violence.
A dependency investigator interviewed mother about the allegations in the petition. Mother acknowledged the prior domestic violence and that there had been "'a couple of times'" the children were present. However, mother continued to reunify with G.D. despite the violence. Mother admitted she needed to end the relationship with G.D. and focus on the children. She denied the children were physically abused but understood it was not healthy for the children to be exposed to domestic violence and acknowledged the children were at risk of being injured as a result of the violence. Mother reported G.D. had been battling drug addiction and had been violent towards her since 2017.
A felony complaint arrest warrant was filed on April 1, 2021, charging G.D. with domestic violence against mother, vandalism, discharging a firearm with gross negligence, and contempt of court. On May 15, 2021, G.D. was arrested, and on May 18, 2021, G.D. was remanded to custody. A three-year criminal protective order was issued on May 18, 2021, protecting mother from G.D.
DCFS obtained multiple police reports documenting domestic violence between mother and G.D. In a police report dated January 29, 2021, mother reported G.D. had been contacting her via text message, that there had been multiple domestic violence incidents between mother and G.D., and that officers previously told mother there was an active restraining order protecting her from him. Mother also reported G.D. came to her residence on January 28, 2021, that they engaged in a verbal altercation, and that she heard gunfire while she was walking away from G.D. When mother looked back, she saw G.D. shooting a small handgun into the air. She denied he pointed the handgun at her. When an officer asked mother if she wanted to press charges against G.D., mother would not provide an answer. Law enforcement recovered shell casings from the area, but they were unable to locate G.D.
In another police report dated March 21, 2021, mother contacted law enforcement and reported that after she and G.D. had an argument, he took her car. Mother told law enforcement she thought the previous restraining order against G.D. had been lifted at her request. Law enforcement responded that it was still active and to call if G.D. returned. Mother stated she and G.D. had reconciled and that she had permitted him to stay at her home for the past month.
DCFS also obtained the police report concerning the April 24, 2021, incident that led to DCFS's current involvement. This report was consistent with the information previously provided to DCFS and further documented the verbal and physical altercation between G.D. and mother. The report also documented Aubrey and Jeremiah were present, crying and screaming during the incident. In addition, police reports dated April 28, 2021, and April 29, 2021, documented mother reportedly seeing G.D. outside of her home in violation of the restraining order.
In a police report dated May 15, 2021, mother stated G.D. was standing outside her home and banging on her front door. Law enforcement confirmed mother had recently obtained a temporary restraining order against G.D. and that there were outstanding felony and misdemeanor warrants for G.D.'s arrest. A high-speed chase ensued between G.D. and law enforcement that ended with G.D.'s arrest. Law enforcement recovered methamphetamine, a pistol magazine with live ammunition, and two separate boxes of ammunition in G.D.'s vehicle.
On June 1, 2021, mother reported she was visiting the children twice a week. Mother said that paternal aunt monitored the visits and that they were going well. Mother missed the last two visits due to her car breaking down, and DCFS was looking into providing mother with a bus pass.
On June 3, 2021, the dependency investigator interviewed Isiah. Isiah said he could not remember if he ever witnessed physical altercations between mother and G.D. He did confirm hearing mother and G.D. curse at each other. Isiah said he felt safe with mother but did not like G.D. because he was not his real father. Isiah confirmed G.D. was living in the home prior to the children being detained. DCFS obtained school reports documenting Isiah had behavioral problems at school that included bullying, fighting, and disruptive behavior.
The investigator then interviewed Aubrey. Aubrey missed mother and wanted to return home. She also missed G.D., but said he scared her when he got mad. Aubrey stated that G.D. hit mother when he got mad and described the violence that led to the filing of the dependency petition.
The investigator also interviewed paternal aunt. Paternal aunt was concerned about Isiah's mental health because he had made a statement indicating he wanted to kill himself. However, Isiah denied he meant it and was in therapy and showing improvement. Paternal aunt disclosed that G.D. had been violent at a young age.
On June 29, 2021, G.D. pled no contest to domestic violence and vandalism. The remaining charges were dismissed. G.D. was then sentenced to two years in state prison for domestic violence and 180 days in jail for vandalism. That same day, a criminal protective order was issued against G.D. protecting mother, set to expire on June 29, 2026.
On July 28, 2021, DCFS filed a first amended petition, adding counts pertaining to the allegations that G.D. had a history of methamphetamine abuse and was arrested after leading law enforcement on a high-speed pursuit due to a violation of a restraining order protecting mother. At the time of the arrest, methamphetamine, a pistol magazine, and two separate boxes of live ammunition were uncovered in his vehicle. The new counts also alleged G.D. discharged a firearm in front of the family home and was a convicted felon who was prohibited from possessing a firearm.
DCFS reported that although the restraining order issued on August 20, 2018, was terminated on July 17, 2020, at mother's request, a protective order was issued on July 14, 2020, due to G.D. violating a preexisting restraining order. DCFS reported that this July 14, 2020 protective order remained active and had an expiration date of July 14, 2023. DCFS also provided the court with a copy of the three-year criminal protective order issued on May 18, 2021.
DCFS received from mother a certification of participation for completing a parenting program on July 20, 2021, as well as a letter reporting she was enrolled in a domestic violence program on June 7, 2021, and was on a waitlist for individual domestic violence counseling.
At the August 5, 2021 adjudication hearing, the juvenile court sustained the petition and continued the matter for disposition. On August 12, 2021, Isiah was placed in the home of paternal grandmother.
A social worker met with paternal aunt. Paternal aunt reported that Aubrey was getting into physical fights with children at school. She also reported that Jeremiah cries after visits with mother and had difficulty being consoled at night if he wakes up. In addition, mother "has never consistently visited with the children" as ordered by the court. When visiting the children, paternal aunt stated that mother would be on the phone and did not provide the children with much attention. Mother would also allow the children to play with her phone during visits. Paternal aunt also disclosed that mother arrived at Jeremiah's birthday party with a green/yellowish mark on her face and that paternal aunt's husband said mother appeared to be under the influence. Paternal aunt reported mother would send her text messages that "are very disrespectful to her and the family" and frequently questioned her parenting. Paternal aunt informed DCFS that she no longer wanted to be the monitor for mother's visits with the children, even if that resulted in the children being removed from her care.
A social worker then met with mother. Mother admitted that she was having unmonitored visits with the children for several hours at a time, starting in August 2021 until September 20, 2021. Paternal aunt later denied that she allowed any unmonitored visits. Mother also acknowledged she visits Isiah, but not the hours required or ordered by the court. Paternal grandmother confirmed that mother frequently cancels her visits with Isiah. When mother does visit Isiah, she arrives late and leaves early. Mother stated that she and paternal aunt were having problems, but she did not want to have the children removed from the aunt's care. Mother maintained she was not to blame for DCFS involvement and said G.D. "would not leave her and [the] children alone."
Mother refused the social worker's request that she submit to a drug test. She acknowledged using substances in the past but denied any current drug use. Mother later agreed to an alcohol and drug test on January 26, 2022, and she tested negative for both substances.
On October 29, 2021, Jeremiah and Aubrey were placed in a foster home. Despite the new placement, DCFS reported that mother was inconsistent with her visits with Jeremiah and Aubrey. She arrived an hour and a half late to one visit, cancelled visits, and declined the foster parent's offer for an additional visit with the children.
At the February 8, 2022, disposition hearing, the juvenile court declared the children dependents of the court under section 300, subdivisions (a) and (b), and ordered the children removed from parental custody. Mother's counsel objected to the court-ordered case plan ordering her to complete a domestic violence "for perpetrators program" as she had already completed a domestic violence course. The court then ordered DCFS to review mother's completion certificate of the domestic violence course to determine if it could be counted towards mother's compliance in the court-ordered case plan. The court indicated its intention to sign mother's case plan, which also included a drug/alcohol program with random or on demand drug/alcohol testing, parenting programs, and individual counseling to address case issues. The court asked mother's counsel if she wished to be heard, and mother's counsel then argued against monitored visitation and stated mother had made "great progress" on her case plan. At the conclusion of counsel's argument, she stated, "submit it." The court then ordered monitored visitation for mother two times a week for three hours for each visit. However, mother was also ordered to have one unmonitored day visit in a neutral setting at least one time during the week. DCFS was given discretion to liberalize visitation. Finally, the court noted that G.D. "may potentially be paroled in May," and directed G.D.'s counsel to ensure G.D. contacts DCFS upon release from custody.
Mother filed an exhibit list consisting of two documents for the disposition hearing. The first document was an August 24, 2021, certificate of completion for a domestic violence course. The second document was a November 18, 2021, letter from Tri-City Mental Health Services reporting mother was admitted to the program on September 20, 2021, met medical necessity to receive specialty mental health services, was receiving group rehabilitation services, and had completed four sessions. Although mother's counsel did not ask the juvenile court to mark and admit these documents into evidence, the court referenced "mother [having] completed a domestic violence support group for victims" when it made its orders.
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends that the juvenile court erred in finding by clear and convincing evidence that the children were at a substantial risk of harm and there were no reasonable means to protect them without removing them from mother's care. DCFS contends that mother forfeited her ability to challenge the removal order because she acquiesced to the children being removed from her custody. In any event, DCFS argues there is substantial evidence to support the order.
A. Forfeiture
Generally, issues not raised in the trial court cannot be raised on appeal. "Many dependency cases have held that a parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339 [collecting cases].) "As some of these courts have noted, any other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (Ibid.)
However, "[t]he contention that a judgment is not supported by substantial evidence . . . is an obvious exception" to the forfeiture rule. (In re Javier G. (2006) 137 Cal.App.4th 453, 464; see also In re R.V. (2012) 208 Cal.App.4th 837, 848 [no forfeiture of claim challenging the court's dispositional order on the ground of insufficient evidence]; In re Brian P. (2002) 99 Cal.App.4th 616, 623 ["When the merits are contested, a parent is not required to object to the social service agency's failure to carry its burden of proof"].)
DCFS exclusively relies on In re Richard K. (1994) 25 Cal.App.4th 580 (Richard K.) to contend that mother acquiesced to the dispositional order and therefore cannot challenge the sufficiency of the evidence on appeal. In Richard K., the mother's counsel explicitly told the juvenile court that mother was submitting on a social worker's recommended disposition that the children at issue be removed from her custody. (Id. at p. 587-88.) On appeal, the court held the mother was precluded from challenging the sufficiency of the evidence supporting the disposition. The court reasoned that "it is not uncommon in dependency proceedings for a parent to 'submit' on a social services report. [Citations.] By submitting on a particular report or record, the parent agrees to the court's consideration of such information as the only evidence in the matter. Under such circumstances, the court will not consider any other evidence in deciding whether the allegations are true." (Id. at pp. 588-589, fn. omitted.) In that circumstance, "the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply the relevant law to determine whether the case has been proved. [Citation.] In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. [Citation.] Thus, the parent does not waive for appellate purposes his or her right to challenge the propriety of the court is orders." (Id. at p. 589.)
However, the mother in Richard K. did not simply submit on the social worker's report; she submitted on the recommendation. Thus, the court concluded that such a statement "constituted acquiescence in or yielding to the social worker's recommended findings and orders, as distinguished from mere submission on the report itself. This is considerably more than permitting the court to decide an issue on a limited and uncontested record .... The mother's submittal on the recommendation dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders." (Richard K., supra, 25 Cal.App.4th at p. 589.)
Here, counsel sought to submit on the record. Counsel's statement "submit it" appears as a means to conclude her argument regarding the court-ordered case plan requiring an additional domestic violence program and monitored visitation. Unlike in Richard K., there was no statement from counsel clearly evidencing that mother was submitting to DCFS's recommendation to remove the children from her custody. Therefore, we agree with mother that she did not acquiesce to the court's removal order and is permitted to challenge the sufficiency of the evidence to support the order, despite failing to object below.
B. Removal Order
The juvenile court may remove a child from the custody of a parent if it 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 parent's . . . physical custody." (§ 361, subd. (c)(1).) "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 D.B. (2018) 26 Cal.App.5th 320, 328 (D.B.), citing In re T.V. (2013) 217 Cal.App.4th 126, 135-136 (T.V.).)
"In determining whether a child may be safely maintained in the parent's physical custody, the juvenile court may consider the parent's past conduct and current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (D.B., supra, 26 Cal.App.5th at p. 332, citing In re Cole C. (2009) 174 Cal.App.4th 900, 917.) The court "must also consider whether there are any reasonable protective measures and services that can be implemented to prevent the child's removal from the parent's physical custody." (D.B., supra, at p. 332, citing § 361, subd. (c)(1).)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012 (O.B.); see also In re V.L. (2020) 54 Cal.App.5th 147, 155 (V.L.) [finding that "O.B. is controlling in dependency cases"].) Thus, "we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding." (In re R.V. (2012) 208 Cal.App.4th 837, 843.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order." (T.V., supra, 217 Cal.App.4th at p. 133.)
Mother argues that at the time of the disposition hearing, G.D. was incarcerated and a protective order was in place protecting mother from G.D. In addition, mother had substantially complied with the recommended services. Therefore, the "concerns related to mother's involvement with domestic violence had been resolved."
Mother does not acknowledge her history of continuing to permit G.D. to return to the home despite the longstanding domestic violence, which routinely occurred in the children's presence. A protective order has not previously deterred mother from reconciling with G.D. and allowing him back in the home. Indeed, a prior restraining order was terminated at her request. Although at the time of the disposition hearing, G.D. was incarcerated, the juvenile court did note that he would likely be released on parole in a few months. Therefore, there is a significant likelihood this cycle of domestic violence between mother and G.D. will reoccur. Furthermore, prior to the disposition hearing, mother refused to take accountability for her role in DCFS's current involvement and maintained it was G.D. who would not leave her and the children alone. (See V.L., supra, 54 Cal.App.5th at p. 156; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge"].) Thus, while mother may have made some progress, the juvenile court could reasonably find the children were at substantial risk of harm as a result of mother and G.D.'s ongoing domestic violence and that there were no reasonable means by which they could be protected without removal. (§ 361, subd. (c)(1).)
Mother resists this conclusion by arguing there were alternative means to protect the children short of removal, such as ordering mother not to allow G.D. to have any unauthorized contact with the children upon his release from custody and for DCFS to increase its home visits. The first suggestion is rebutted, as discussed above, by mother's extensive track record of failing to adhere to the protective orders in place and allowing G.D. to return to the home. Mother also has not abided by the terms of court orders governing visitation. (T.V., supra, 217 Cal.App.4th at p. 133 ["A parent's past conduct is a good predictor of future behavior"].) As to the latter, a visit from DCFS can "only assess the situation . . . at the time of the visit" (In re A.F. (2016) 3 Cal.App.5th 283, 293) and cannot prevent mother from willingly allowing G.D. around in the interim.
We conclude substantial evidence supports the juvenile court's removal order.
DISPOSITION
The order is affirmed. DCFS's request for judicial notice is denied.
We concur: CURREY, Acting P.J. ZUKIN, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.