Opinion
B317947
05-10-2023
In re M.E., a Person Coming Under the Juvenile Court Law. v. MICHAEL E., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Vincent Uberti, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP04871A, Jean M. Nelson, Judge. Affirmed.
Vincent Uberti, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
Father Michael E. contends the juvenile court's order removing his son M.E. (born September 2021) from his custody is not supported by substantial evidence and must be reversed. We disagree and affirm.
BACKGROUND
Shortly after M.E.'s birth, the Los Angeles County Department of Children and Family Services (DCFS) received information that Mother had just delivered a child, M.E., and that her four other children (M.E.'s half-siblings) had been previously removed from her custody due to domestic violence between her and their father. The four children had received permanent planning services and had been adopted by maternal grandmother after Mother failed to reunify with them. Based on this information, DCFS interviewed Mother in the hospital after her delivery. Mother and M.E. tested negative for drugs. Father, who was at the hospital when DCFS arrived, left before being interviewed. Father was later interviewed at his home. He stated Mother had a history of drug and alcohol use, but currently does not drink or use drugs. Father denied any criminal history and drug use; he also denied domestic violence between him and Mother. Father identified his neighbor, Rosa Escorcia, as his support system.
DCFS and both parents created a voluntary 7-day safety plan for M.E. whereby the baby would remain with Escorcia and parents would visit during the day and return to their home at night.
On October 5, 2021, Mother tearfully reported to DCFS that Father had physically assaulted her and she had sustained injuries because of that domestic violence. Father ordered her out of his house. M.E. was not physically present during the fight; he was on another floor of the house with Escorcia. Mother reported other arguments had occurred four times. At one fight, he kicked her out of the house at 2:00 a.m. in the morning and she had to walk to her mother's home.
Mother also reported another argument and another act of violence by Father against her. Mother got into an argument with Escorcia's cousin who was at Father's house. Father asked Mother to leave his home. When she refused, Father pulled her hair and pushed her towards the driveway. He slammed her purse on the floor. Mother did not call the police.
When asked, Escorcia confirmed hearing the arguments, but she denied witnessing any pushing or physical violence. She stated she stayed out of their fighting and noted, "My concern is their relationship. If the baby goes to them, I don't know the baby will be safe if they are together. They argue all the time. They have gotten into some serious arguments four times in the last week. They use bad words. They get [rough] and in each other's faces."
On October 14, 2021, DCFS served a removal order at Father's home. M.E. was in Escorcia's care. An unidentified woman was also present. Escorcia initially refused to give M.E. to DCFS, while the unidentified woman shouted at the social worker, and blocked the social worker's car and access to M.E. Eventually the social worker was able to get M.E. into her car and leave, although the unidentified woman accelerated her own car in the social worker's direction. The unidentified woman then suddenly braked without hitting the social worker's car with M.E. in it. Father was present during the confrontation, "chuckling," and did nothing to intervene to protect his son.
On October 18, 2021, DCFS filed a section 300 petition. The count under subdivision (a) alleged Mother and Father had a history of domestic violence which included verbal and physical altercations as recently as that month. Father was alleged to have grabbed and pulled Mothers' hair and pushed her, causing bruising on her arm. He also slammed her purse to the floor. It was alleged such violent conduct by Father towards Mother endangered the child's physical health and safety and placed M.E. at risk of serious physical harm, damage, and danger.
All statutory references are to the Welfare & Institutions Code.
Under section 300 subdivision (b) it was alleged M.E. was at risk of serious physical harm because (1) the parents failed to protect him from Father's domestic violence toward Mother and (2) Mother's history of substance abuse prevented her from providing regular care and supervision of M.E. who was of an age requiring constant care and supervision. Under subdivision (j), it was alleged M.E.'s four half-siblings had been abused or neglected and there is a substantial risk that M.E. would also be subject to neglect or abuse due to Father's domestic violence toward Mother and Mother's history of substance abuse. The four half-siblings were currently receiving permanent placement services due to domestic violence between Mother and their father and Mother's substance abuse.
At the detention hearing on October 21, 2021, the court ordered M.E. removed from his parents and ordered monitored and separate visitation for the parents. As to Father, the court stated, "I'm concerned how Father handled himself during these fights. He did not seem protective at all, trying to push Mother out of the home. Although he may have been trying to deescalate, he didn't seem to show any concern for the baby."
In preparation for the adjudication hearing on January 10, 2022, DCFS prepared a Jurisdiction/Disposition Report. The report concluded Mother has an extensive history of unaddressed dependency on methamphetamine and Father has a prior history with DCFS, having failed to reunify with his three older children. The mothers of Father's older children had also accused him of domestic violence; one was taken to a hospital in an ambulance because of her injuries. He also had a history of illicit drug use, but was currently testing negative and had enrolled and started parenting classes. By the date of the report, Mother and Father had separated. M.E. had been placed with maternal grandmother. Father was visiting M.E. regularly and shopping with maternal grandmother to buy necessary items for the baby. He was very attentive to M.E.'s needs and helped transport maternal grandmother and M.E. to doctor's appointments. In addition, he maintained monthly contact with DCFS. DCFS recommended to the court that the family would "benefit from continued court supervision to ensure the safety of the child [M.E.] to address the underlying needs that brought this family to the attention of DCFS and the Court."
At the adjudication hearing on January 10, 2022, Father denied domestic violence had occurred between him and Mother and urged the court not to rely on Mother's statements because they were uncorroborated and inconsistent. He also argued M.E. was not present during the alleged incidents and was therefore not at risk of harm. In response, the court stated, "I'm taking some time here [as] Father is denying the domestic violence; Mother is saying these things have occurred. I have to decide who is credible because we don't have much to corroborate Mother's claim. Problem is, I don't find Father very credible either because he denied, when interviewed by the Department, that he had criminal history, and it turns out he does. He denied any history of illicit substance dependency, but he had a conviction for methamphetamine for personal use. And he had a conviction for burglary." After learning that Father had completed a drug program, the court continued: "So I think Father is minimizing his conduct in general. He wants to present himself as having no prior domestic violence by blaming the other mother or the other woman, and now is blaming this woman, [Mother], and then he tried to present himself as not having a substance abuse problem. But even after completing drug treatment, he went on to have a criminal conviction. He also failed to test, which I don't count those as positive tests, but it shows Father unwillingness despite his promise to test to actually test. So I agree that the Department doesn't have the usual evidence it often has of law enforcement reports to support the victim's claim of domestic violence. The problem here is [Mother] didn't call law enforcement, but she was extremely emotional when she talked about the fights, and she was barely able to speak she was crying so hard. That emotional response reaction while discussing the domestic violence lends to her credibility that it was traumatic for her to discuss the physical fights she had with Father. Further, I do agree that she was willing to admit information, including her own substance abuse problems. Now Mother has sort of dropped out of sight. She did an interview with the dependency investigator which gives me some concern, but that doesn't contradict her prior statements. She shouldn't have gone over to Father's home for one of those fights, but it does show that there was a domestic violence element. I don't find the Father credible in denying the domestic violence. I do find that there is some evidence indicating Mother is telling the truth. It was her emotional response. The fact that Father did have some type of domestic violence problem with a prior significant other, as indicated in the report, and Mother gave sufficient details that I find her credible as to the domestic violence. I further find her credible because she admitted many of the other problems in this case, including her own substance abuse." The court found Father not credible, citing Father's denial of responsibility in his prior DCFS cases and his history of substance abuse and criminal convictions.
The court dismissed the section 300 subdivision (a) count because "there is not sufficient evidence that the baby was in direct line of fire." It found true the allegations under subdivisions (b) and (j). The court ordered M.E. removed from both parents. As to Father, the court stated, "I am concerned that Father minimized a lot of the issues concerning him and that if the child was released, he would not be cooperative in a way that the court could confirm the baby is safe with him." The trial court ordered reunification services to both parents and monitored visitation. Only Father filed a notice of appeal of the removal order.
DISCUSSION
I. Standard of Review
The trial court's findings must be supported by substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633.) "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 fact finder could have found it highly probable that the fact was true," giving deference to the trial court's evidentiary findings. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.) In applying the substantial evidence standard of review, this court does not reweigh the evidence or express independent judgment on the evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1424.) We review the record in the light most favorable to the trial court's judgment to determine whether a reasonable trier of fact could find the judgment appropriate based on the evidence before it. (In re I.J., at p. 773.)
We will uphold the juvenile court's orders if they are correct for any reason, regardless of the correctness of the grounds upon which the court reached its conclusion. It is judicial action and not judicial reasoning which is the subject of review. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)
II. Applicable Law
A juvenile court may remove physical custody of the child from the parent where it finds by clear and convincing evidence that there is substantial danger to the physical health, safety, protection, or emotional well-being of the child or would be if the child were returned home, and there are no reasonable means to protect the child without removal from the parent's physical custody. (§ 361, subd. (c)(1); In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) The court may consider the parent's past conduct and current circumstances, as well as the parent's response to the conditions that caused the juvenile court to intervene. (In re D.B. (2018) 26 Cal.App.5th 320, 332.) The parent need not be dangerous and the child need not have suffered actual harm before removal is appropriate. (Id. at p. 328.)
III. Father's Contentions Are Justiciable.
The juvenile court assumed jurisdiction over M.E. not only due to Father's actions but also by sustaining counts against Mother, who did not appeal. "[W]here jurisdictional findings have been made as to both parents but only one parent brings a challenge, the appeal may be rendered moot." (In re D.P. (2023) 14 Cal.5th 266, 283.) Nonetheless, we retain discretion to address the merits of a jurisdictional challenge by only one parent where, as here, the jurisdictional ruling has impacted current dependency proceedings or could otherwise be prejudicial to the appellant. (Id. at p. 286.)
Here the juvenile court made two findings: 1) Father was not credible; and 2) his initial denials of his history of criminal convictions, substance abuse, and domestic violence persuaded the court that he would not cooperate with the court in future efforts to ensure M.E.'s physical safety. These findings will definitely impact whether the juvenile court will eventually terminate Father's parental rights to his son and for that reason we exercise our discretion to hear Father's appeal.
IV. Substantial Evidence Supports the Jurisdictional and Dispositional Findings Against Father
In sustaining the allegations under section 300 subdivisions (b) and (j), the juvenile court did not make express factual findings against Father. It was only later on in the hearing that the court explained it would remove M.E. because Father was minimizing his history of substance abuse, domestic violence, and criminal activity. The juvenile court basically called Father a liar who, as a result of his lying, could not be trusted to cooperate with the court to ensure M.E.'s safety.
We accept, as we must, the juvenile court's credibility determinations. But apart from minimizing his personal history and past allegations of domestic violence and missing two drug tests in December, 2021, Father has cooperated with the court. He ended his toxic relationship with Mother, tested negative when he did test, enrolled in programs as directed, urged Mother to enroll in her programs, visited his son regularly, supported his son financially, helped his son's caregiver with transportation to doctor's appointments, and maintained regular contact with his son's caregiver and DCFS.
As for Father's criminal history, it consists of property and vehicle-related convictions in 2011 and 2013 and misdemeanor convictions in 2018 for second degree burglary, possession of methamphetamine for personal use, and possession of burglar tools. Criminal history alone is insufficient to establish jurisdiction. (In re J.N. (2021) 62 Cal.App.5th 767, 775 [criminal history must give rise to an inference that the minor faces a specifically identified, substantial risk of harm].)
Nonetheless, when the court found Mother credible, the juvenile court accepted and implicitly found true her accusations of very recent domestic violence. We do not reweigh that finding. Had a third person not been present to attend to M.E. during these confrontations, M.E. would have been an afterthought until the physical violence between his parents ceased. At his tender age, he cannot be left unattended while his parents physically fight. Father's decision to remain uninvolved while his houseguest physically and dangerously interfered with the social worker's service of the removal order is further evidence that protection of his son is not a priority. Added to this recent deterioration of Mother and Father's relationship is Father's documented history of physical domestic violence with the mothers of his three older children. A parent's past conduct is a good predictor of future behavior. (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
That being said, we acknowledge that past domestic violence alone is not enough to support jurisdiction. (In re M.W. (2015) 238 Cal.App.4th 1444, 1453.) A parent's past conduct may be probative of current conditions only if there is reason to believe the conduct will continue. (In re Cole L. (2021) 70 Cal.App.5th 591, 602.) Here it did continue. The trial court was faced with a combination of past and recent domestic violence against which M.E., an infant, cannot protect himself should he be present when the next punch or object is thrown. This constitutes clear and convincing substantial evidence to support the juvenile court's jurisdictional findings and removal order pending further programming and family reunification efforts.
Father argues that there are reasonable alternatives to removal. We disagree. No amount of DCFS or court monitoring can predict or forestall when a spark of domestic violence turns into a conflagration. We commend Father for working to become the parent he has not been in the past and for assisting maternal grandmother financially and otherwise in taking care of his son. However, his lengthy history of domestic violence towards the mothers of his children, including the most recent incidents with Mother, constitutes clear and convincing evidence in support of removing his son from his custody until the situation improves to the juvenile court's satisfaction.
DISPOSITION
The trial court's jurisdictional findings and dispositional order are affirmed.
I concur: GRIMES, J., VIRAMONTES, J.