Opinion
B300481
07-02-2020
In re K.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ALEJANDRO G., Objector and Appellant.
Niti Gupta, under appointment by the California Court of Appeal, for Objector and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19LJJP00514A-C) APPEAL from an order of the Superior Court of Los Angeles County, Steven E. Ipson, Commissioner. Affirmed. Niti Gupta, under appointment by the California Court of Appeal, for Objector and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
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A juvenile court removed three children under the age of 10 from their mother and father after a two-day period of mutual harassment escalated into mother's act of ramming father's car with her own—with the kids as her passengers. Father argues that the juvenile court erred in removing the children from his custody. Because this order was supported by substantial evidence, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Leana G. (mother) and Alejandro G. (father) have three children—K.G. (born in 2011), Mariana G. (born in 2015), and Alejandra G. (born in 2017). The parents were married in 2015 and filed for dissolution in 2018, but were still living together in June 2019.
Mother and father have a history of domestic violence. They would regularly "yell" at each other, often in front of their eldest daughter. The verbal assaults turned physical in 2018. In August 2018, mother pushed father several times before ripping his cell phone from his hands and throwing it at him; police arrested mother. In December 2018, the parents had another incident of violence, which prompted a referral to the Los Angeles Department of Children and Family Services (the Department). The Department offered father and mother voluntary family maintenance services, but they refused to participate.
On June 28, 2019, father suspected that mother was cheating on him and used the tracking device on the work truck mother drove to locate mother. He then went to her location to "call[] [her] out" on having an affair. The next day, mother pulled up behind father's vehicle in her truck, with all three kids in the back seat. Mother followed father for a while and put her truck in front of his vehicle when father tried to make a U-turn. When father tried to navigate around mother's truck, mother collided with father's vehicle. Fortunately, none of the kids was injured. However, mother was arrested and eventually charged with misdemeanor vandalism as well as misdemeanor child endangerment. The incident upset K.G., who has been crying, had difficulty talking to the Department's social worker about the car incident, and who "is scared that [her] parents are 'going to do the same thing again.'"
II. Procedural Background
In July 2019, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over all three children on the ground that mother and father have "a history of engaging in violent altercations" that "endangers the children's physical health and safety, and places the children at risk of serious physical harm, damage and danger" (thereby rendering dependency jurisdiction appropriate under Welfare and Institutions Code section 300, subdivision (b)(1)). As an example, the Department alleged the June 2019 incident.
The Department also alleged that this identical conduct warranted the exertion of jurisdiction under subdivision (a) of section 300, but did not press that basis for jurisdiction, prompting the juvenile court to dismiss that allegation.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The Department also alleged the December 2018 incident, but the juvenile court was not "satisfied that that one incident [was] proven."
When the juvenile court detained the children, the court authorized monitored visits and also ordered the Department to provide father with domestic violence classes, parenting classes, anger management classes, and transportation assistance. Father did not visit the children once, initially explaining that he was "advised to stay away," that he did not have transportation, and that he did not "g[et] along" with the maternal grandmother who had custody of the children, but later denying ever being advised to stay away. Father also did not participate in any of the classes the Department offered, although his counsel said the Department never gave him any referrals.
The jurisdictional hearing occurred over several days in August 2019 and was contested. Father testified. During his testimony, he at first denied his prior statement to the Department social worker that he had tracked mother's whereabouts or showed up to confront her the day before the collision, but later admitted that he had tracked her that day and had confronted her. Father also testified to a cascade of different stories about whether the Department had offered him and mother voluntary family maintenance services after the December 2018 incident: First he said he was "not aware" that the Department was "reaching out" to offer those services; then he said the Department social worker came out to "visit [him and mother] at the apartment" but that mother got mad and asked the social worker to leave; then he said he spoke with the social worker but she never asked him to attend classes or complete programs; then he said she did offer him classes and programs, but he said he would attend education funded by his private insurance; then he said he completed those private classes but did not have the paperwork; and, finally, he admitted he only attended "one or two classes."
The juvenile court sustained jurisdiction over the children. In so ruling, the court found that mother and father had a "history" of domestic violence, and that both parents "participated" in this violence—including the June 2019 car incident—"mutually." The court also ordered the children removed from father and mother. In so ruling, the court found that the children were at risk of harm in father's custody in light of the court's "concerns about the father's behavior." The court also found that the Department had made "reasonable efforts . . . to prevent and eliminate the need for . . . removal" by "offer[ing] the voluntary family maintenance program" that father had rejected and that might have avoided the subsequent car incident.
Father filed this timely appeal.
DISCUSSION
Father argues that the juvenile court erred in removing the children from him because there was insufficient evidence that the children were at risk of harm in his custody or that the Department had made reasonable efforts to avoid removal.
A juvenile court may remove a child from her parents only if it finds, by clear and convincing evidence, that (1) "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the [child] if the [child] were returned home," and (2) "there are no reasonable means" short of removal "by which the [child's] physical health can be protected." (§ 361, subd. (c)(1).) We review the juvenile court's findings underlying its removal orders for substantial evidence. (In re M.M. (2015) 240 Cal.App.4th 703, 719-720.) Although it remains unsettled whether our review for substantial evidence must take into account the clear and convincing evidence standard (compare In re Ashly F. (2014) 225 Cal.App.4th 803, 809 (Ashly F.) [applying higher standard on appeal] with In re J.S. (2014) 228 Cal.App.4th 1483, 1492-1493 [disregarding higher standard on appeal]), we will sidestep the conflict by using the higher standard.
I. Evidence of Risk
Substantial evidence supports the juvenile court's finding, by clear and convincing evidence, that placing the children with father would pose a substantial danger to their physical health and safety as well as their emotional well-being. It is well settled that domestic violence between a child's parents poses a substantial risk of harm to that child if the violence places the child in harm's way and "there is evidence that the violence is ongoing or likely to continue." (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-599 (Giovanni F.); In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) Father does not contest the sufficiency of the juvenile court's finding of substantial risk of serious physical harm that is necessary to support jurisdiction, and that finding regarding risk goes a long way toward establishing the risk of "substantial danger" to physical health and well-being. Nor could he, as the evidence shows that father and mother appear to be engaged in a pattern in which father baits mother until mother resorts to violence with the children nearby; indeed, the likelihood that this pattern will persist is so obvious that even their eight-year-old daughter fears it will continue. What is more, father disclaims any responsibility for his part in this pattern, flatly denying that his conduct in tracking mother's location and confronting her "antagoniz[ed]" or "provoke[d]" her; his lawyer went so far as to label father as "the victim of this." A parent's denial of his role in domestic violence itself increases the risk of further violence. (Giovanni F., at p. 601.) There is also evidence that father's domestic violence is adversely affecting K.G.'s emotional well-being.
Father attacks the sufficiency of the evidence of risk with what boil down to four arguments.
First, father strenuously maintains that he was not the aggressor in any domestic violence incident because mother was the aggressor. Although father testified to the same, the juvenile court rejected that testimony when it found that the domestic violence was "mutual" and that finding, as noted above, is supported by the evidence that father's conduct in surreptitiously tracking mother and then confronting her set in motion the chain of events leading to the car incident the next day. When reviewing a finding for substantial evidence, we can neither gainsay the juvenile court's credibility finding nor reweigh the evidence. (In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1352; In re I.J. (2013) 56 Cal.4th 766, 773.) Father is essentially asking us to do both.
Second, father points out that his domestic violence with mother has yet to inflict any physical harm on the children. This is true, but does not negate the risk to the children. (Accord, Giovanni F., supra, 184 Cal.App.4th at p. 598 [harm to children not a prerequisite to jurisdiction involving domestic violence]; see also In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383 ["the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child"], superseded by statute on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322; In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 [same].)
Third, father argues that there is no risk because he and mother are no longer living together. It is not clear from the record whether this is true: Father testified that he was "separated" from mother, but he also admitted that he had reconciled with mother after the parties filed for dissolution and testified that he and mother were in the same apartment after they filed for dissolution; mother told the police after the car incident that she and father had been living together for the last seven months. Ultimately, this factual dispute is of no consequence because, even if we accept that father was living apart from mother, that has not stopped him from engaging in conduct that escalates into domestic violence.
Lastly, father asserts that there is no "ongoing violent contact." In light of the juvenile court's amply supported finding that father was a "mutual" "participant" in the domestic violence, the record is to the contrary.
II. Means Short of Removal
Substantial evidence also supports the finding, by clear and convincing evidence, that there are no reasonable means short of removal to protect the children's health. The Department offered father voluntary family maintenance services and, if we (like the juvenile court) accept father's last four explanations about those services as true, then he declined to participate in them. Father also declined to participate in any of the services the Department offered him after the detention hearing in this case. Given the risk posed by father's mutual participation in domestic violence, by father's demonstrated unwillingness to participate in services that would mitigate that risk and by father's trenchant refusal even to acknowledge the existence of any domestic violence at all, substantial evidence supports the juvenile court's finding that there are no means short of removal to protect the children's health.
Father responds with two arguments.
First, he points to his repeated, prior assertions that he was always happy to participate in services or programs, and proceeds to list several services the Department might have offered him and several orders the juvenile court could have made to obviate the need for removal (e.g., a no-contact order with mom, an order to remove all tracking devices, an order to enroll the children in therapy, an order to participate in parenting and family stabilization classes as well as wraparound services and to order the Department to conduct random home inspections). This argument ignores that the juvenile court acted well within its discretion in determining that father's actions (that he has never undertaken the services offered to him) speak louder than his words (that he is ever-willing to do so). To be sure, father has always had a ready (even if sometimes conflicting) excuse as to why he did not participate in any services, but the juvenile court acted within its fact-finding authority in rejecting those excuses as not credible. We cannot and would not gainsay that determination.
Second, father cites three cases—In re Ashly F., supra, 225 Cal.App.4th 803, In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.), and In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.)—as dictating a ruling in his favor. We disagree. Ashly F. held that removal of a child from a parent was inappropriate where the mother had acknowledged her prior physical abuse of the kids, "expressed remorse" for it, and was actively participating in services aimed at obviating the conditions that led to the exertion of dependency jurisdiction. (Ashly F., at pp. 806, 808-811.) Here, father did none of these things. Henry V. held that removal was inappropriate where there was a single occurrence of violence against a child, where the sole justification for removal was the pendency of a "bonding study," where a bonding study could be completed while the child was with his parents, and where the parent was "fully cooperative." (Henry V., at pp. 525, 529-530.) Again, father's situation is different. And Jasmine G. held that removal was inappropriate where the parents had "expressed remorse" for their prior physical discipline, had attended parenting classes and therapy, a therapist had opined that returning the children to their custody was "totally safe," and the sole basis for removing the child was the social worker's opinion that the parents "'lack[ed] understanding of their responsibility.'" (Jasmine G., at pp. 288-289.) Again, the facts of this case are entirely different.
DISPOSITION
The order of removal is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
ASHMANN-GERST