Opinion
B299164
03-04-2020
In re A.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. APOLINAR S., Defendant and Appellant.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP07933) APPEAL from orders of the Superior Court of Los Angeles County, Martha A. Matthews, Judge. Affirmed. David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
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The Los Angeles County Department of Children and Family Services (DCFS) initiated juvenile dependency proceedings concerning A.M., F.M., Vi.M., M.M., and Va.M. on the grounds that their mother (mother) and the biological father of A.M. and F.M. (Geovanni R.) had physically abused A.M. and F.M. Appellant, Apolinar S., the biological father of Vi.M., M.M., and Va.M., appeared in the juvenile dependency proceedings. The juvenile court found he was the presumed father of all five children.
DCFS subsequently amended the petition to include counts against Apolinar S. alleging that he placed F.M. at substantial risk of suffering serious emotional damage by exposing the child to domestic violence against mother when the child observed Apolinar S. throw mother to the ground and hit her in the lip causing her to bleed. DCFS asserted that this new allegation against Apolinar S. authorized the juvenile court to exercise jurisdiction over F.M. pursuant to Welfare and Institutions Code section 300, subdivision (b).
Undesignated statutory citations are to the Welfare and Institutions Code. Section 300 identifies the circumstances under which "[a] child . . . comes within . . . the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court." (See § 300.) In turn, section 300, subdivision (b)(1) provides in pertinent part: "The child has suffered or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left . . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (§ 300, subd. (b)(1), italics added.)
At the adjudication hearing, the juvenile court sustained the jurisdictional averments against mother and Geovanni R., along with the amended jurisdictional allegation against Apolinar S. based on exposing F.M. to domestic violence against mother. The juvenile court later issued dispositional orders removing all the children from the care, custody, and control of their parents, and requiring Apolinar S., inter alia, to attend parenting classes for special needs children.
On appeal, Apolinar S. argues that the amended jurisdictional allegations against him are defective and substantial evidence did not support jurisdiction under section 300, subdivision (b), and therefore, the juvenile court lacked authority to issue the dispositional order requiring him, among other obligations, to attend parenting classes. He does not otherwise challenge the dispositional order on the merits. DCFS counters that this appeal is not justiciable because Apolinar S. does not challenge the juvenile court's jurisdictional findings as to mother and Geovanni R., and mother and Geovanni R. are not parties to this appeal. On the merits, DCFS contends substantial evidence supports the court's jurisdictional findings against Apolinar S.
We exercise our discretion to reach the merits of Apolinar S.'s appeal because the jurisdictional allegations at issue on appeal rendered him an offending parent under the amended petition. Further, although the trial court erred in sustaining the amended jurisdictional allegations against Apolinar S. under section 300, subdivision (b) because that section does not apply to a risk of emotional harm, that error was harmless. The juvenile court expressly found that Apolinar S.'s past acts of domestic violence, one of which occurred in front of F.M., presented substantial risk of serious physical harm to F.M., which finding was supported by substantial evidence and actionable under section 300, subdivision (b). Apolinar S. does not independently challenge the dispositional orders. Accordingly, we affirm the juvenile court's jurisdictional and dispositional orders against Apolinar S.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts that are relevant to the instant appeal. 1. The initial dependency petition , its supporting documents , and the detention hearing
On December 13, 2018, DCFS filed a juvenile dependency petition pursuant to section 300 concerning ten-year-old A.M., eight-year-old F.M., six-year-old Vi.M., five-year-old M.M., and four-year-old Va.M., along with a detention report and an addendum report. In essence, the petition alleged that: (1) Geovanni R. had "physically abused" A.M. and F.M. and mother failed to protect them, and (2) mother had likewise "physically abused" A.M. and F.M. and Geovanni R. failed to protect them. The petition asserted that jurisdiction over each of the children was proper under section 300, subdivisions (a), (b), and (j), and it asserted 12 counts against mother and Geovanni R. The original petition did not contain any counts against Apolinar S.
Subdivision (a) provides in pertinent part that jurisdiction is proper if: "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." (§ 300, subd. (a).) Subdivision (j) provides in relevant part that the juvenile court has jurisdiction if: "The child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." (§ 300, subd. (j).)
According to the detention report, F.M. told DCFS personnel that in October 2018, Geovanni R. hit her face, causing her to bleed from her nose. The report further recited F.M. told DCFS that at one point, Geovanni R. forced her to take a shower with cold water in order to "punish" her. The report also recited A.M. had informed DCFS that on December 9, 2018, mother "slammed" a door on A.M.'s foot.
The detention report indicated that DCFS interviewed mother in November 2018 and December 2018. Geovanni R. is A.M.'s and F.M.'s biological father, and Apolinar S. is Vi.M.'s, M.M.'s, and Va.M.'s biological father. Geovanni R. subjected mother to "domestic violence" when she first lived with him more than ten years ago. After A.M. was born and mother became pregnant with F.M., she left Geovanni, obtained a restraining order against him, and met Apolinar S. Mother, A.M., and F.M. started living with Apolinar S., the latter of whom raised A.M. and F.M. as his own daughters. After mother lived with Apolinar S. for seven years, she "left due to things not working out."
The remainder of this paragraph and the following two paragraphs describe certain statements that mother made to DCFS personnel during those interviews, which are included in the detention report.
Nevertheless, in August 2017, mother and the children left the Los Angeles area to live with Apolinar S. in Eureka "so that she could work things out" with him. During the November 2018 interview, mother indicated that she and the children had moved back to the Los Angeles area and left Apolinar S. approximately six months prior to that interview (i.e., in around May 2018). Although mother said during the November 2018 interview that her relationship with Apolinar S. "was not the best and there was a lot of verbal arguing," she "denied any domestic violence." In the December 2018 interview, however, mother asserted that Apolinar S. had become "physically abusive" when she lived with him in Eureka. After mother returned to the Los Angeles area, she and Geovanni R. "rekindled their romantic relationship." In August 2018, mother and the children moved in with Geovanni R.
During the December 2018 interview, mother instead suggested that she and the children moved out of Apolinar S.'s home in Eureka in July 2018. Similarly, the jurisdiction/disposition report that DCFS later filed indicated that during a January 17, 2019 interview, mother stated she and Apolinar S. separated "[i]n the summer of 2018."
In August 2018, A.M. and F.M. "found out" that Apolinar S. was not their biological father. At around the time that A.M. and F.M. learned this information, "they both started to have behavioral issues." Additionally, mother stated during the November 2018 interview that although "Apolinar [S.] did call occasionally to speak with the girls, [his telephone calls were not] consistent and . . . he hadn't seen them since they left several months ago."
The detention report also indicated that during a December 12, 2018 interview with DCFS, Apolinar S. "stated that he wants custody of and to care for all 5 of the children," and "denied [domestic violence] between him and mother when they wer[e] together."
The detention hearing for the five children occurred on December 14, 2018. At the hearing, mother and Geovanni R. entered a general denial to the petition. The juvenile court thereafter found that Geovanni R. is the presumed father of A.M. and F.M., and, even though Apolinar S. was not present at the hearing, the juvenile court also found that Apolinar S. is the presumed father of Vi.M., M.M., and Va.M. The juvenile court found a prima facie case for detaining each child and ordered DCFS to detain them pending disposition or a further order of the court. 2. Apolinar S.'s JV-505 form , the jurisdiction/disposition report , and the February 4 , 2019 and February 8 , 2019 hearings
On December 21, 2018, Apolinar S. filed a JV-505 statement regarding parentage form, wherein he represented he is married to mother, and requested that the juvenile court find that he is A.M.'s and F.M.'s presumed father.
On January 25, 2019, DCFS filed a jurisdiction/disposition report. The report stated that from January 15, 2019 to January 23, 2019, F.M. was psychiatrically hospitalized because at the foster home, she was "assaultive"; "was hitting, kicking, [and] locking herself in the closet"; and had "smeared feces on walls." It stated that F.M. had been diagnosed with "Depressive Disorder not otherwise specified [(NOS)]."
At a hearing held on February 4, 2019, the juvenile court declared that Apolinar S. is the presumed father of A.M. and F.M. At a February 8, 2019 hearing, the juvenile court declared that Geovanni R. was not F.M.'s presumed father, thereby negating its prior ruling affording him that status. Conversely, the court reaffirmed its prior ruling that Geovanni R. is A.M.'s presumed father.
The minute order for the February 8, 2019 hearing does not memorialize the juvenile court's oral declaration that Geovanni is not F.M.'s presumed father.
Thus, pursuant to the juvenile court's rulings, A.M.'s presumed fathers are Apolinar S. and Geovanni R., and Apolinar S. is the sole presumed father of F.M., Vi.M., M.M., and Va.M. 3. The first amended petition , the April 5 , 2019 last minute information report , and the April 5 , 2019 hearing
On April 4, 2019, DCFS filed a first amended petition concerning all five children. The amended pleading reasserted the initial petition's counts against mother and Geovanni R. The first amended petition added one new count against Apolinar S. and mother under section 300, subdivision (b) (i.e., count b-5), and another new count against Apolinar S. and mother under section 300, subdivision (c) (i.e., count c-1). Prior to the inclusion of counts b-5 and c-1 in the first amended petition, Apolinar S. was not an offending parent in this action.
Section 300, subdivision (c) provides in pertinent part that dependency jurisdiction is proper if: "The child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian . . . ." (§ 300, subd. (c), italics added.)
The factual allegations supporting counts b-5 and c-1 of the first amended petition were identical. Each count averred: "The child, [F.M.'s][ ] father[,] Apolinar S[.] and mother . . . emotionally abused the child [F.M.] by exposing the child to violent physical altercations. On a prior occasion, the child observed father stricking [sic] the mother . . . and causing the mother to sustain an injury and bleed. The emotional abuse of the child has resulted in the child refusing to visit with . . . Apolinar S[.] When the child has agreed to visit with [Apolinar S.], the child returns and displays anxiety, crying, and tantrums. The emotional abuse of the child resulted in the child demonstrating mental and emotional problems including violent and aggressive behavior such as hitting, kicking, destroying property, and being verbally assaultive. The child has demonstrated problems with enuresis. On 01/15/2019 the child was involuntarily hospitalized for the treatment of the child's mental health problems due to hitting, kicking, locking herself in the closet, and smearing feces. The child was diagnosed with Depression NOS. The child is participating in mental health counseling due to the emotional abuse. Such emotional abuse of the child by the father and mother places the child at substantial risk of suffering serious emotional damage as evidenced by anxiety, depression, [and] aggressive behavior toward herself and others."
On April 5, 2019, DCFS filed a last minute information report. On February 25, 2019, F.M.'s caregiver reported that F.M. "becomes very anxious and crying [sic] that she does not want to visit with" Apolinar S. When F.M. was "asked why she did not want to visit with [Apolinar S.], the child responded, '[H]e used to hit my mom and make her bleed.' "
The remainder of this paragraph and the following two paragraphs describe portions of the April 5, 2019 last minute information report.
F.M.'s caregiver reported that "after returning from a visit with [Apolinar S.] on [March 9, 2019,] [F.M.] was upset, very quiet, and distant." It appears the caregiver also reported that after F.M. had a visit with Geovanni R. and mother later that day, "the child was quiet[] [and] distant, clutch[ed] her hands in a closed position[,] [and] . . . began crying on an[d] off." On April 2, 2019, a social worker appears to have reported that after F.M.'s visit with Apolinar S. the prior weekend, "the child proceeded to urinate in the hallway on two occasions."
On April 2, 2019, F.M.'s therapist reported: " '[F.M.] has been regressing with explosive tantrums, verbally and physically aggressive. . . . She's very explosive. She was refusing visits with . . . [Apolinar S.] and would start to get irritable.' " "As to the possibility that visits with [Apolinar S.] are causing the child's behavior, [the therapist] stated, 'I don't think so. The first couple of tantrums, she wasn't seeing . . . [Apolinar S.] The behavior continued even when she wasn't seeing him. I can't say it is a direct result of it or not.' "
At a hearing held on April 5, 2019, mother and Apolinar S. entered a general denial to the first amended petition. The juvenile court also ordered DCFS to provide Apolinar S. with three visits with F.M. in a therapeutic setting and, "[i]f no safety concerns arise, then . . . she [could] have unmonitored visits . . . ." 4. The June 6 , 2019 last minute information report and the June 10 , 2019 adjudication hearing
On June 6, 2019, DCFS filed another last minute information report. It reported that on May 4, 2019, F.M. insisted upon having an unmonitored visit with Apolinar S., notwithstanding the juvenile court's order that she must have visits with him in a therapeutic setting before the two of them could have an unmonitored visit. The report further stated that F.M.'s caregiver permitted F.M. to have that unmonitored visit with Apolinar S., and that F.M. had returned from it "very happy and stated she had a good visit."
On June 10, 2019, the juvenile court held an adjudication hearing. Apolinar S., Geovanni R., mother, and each child appeared at the hearing, as did their respective counsel and DCFS. Mother and Geovanni pleaded no contest to all counts of the first amended petition except for counts b-5 and c-1. The juvenile court accepted mother's and Geovanni's pleas, and found by a preponderance of the evidence that amended versions of counts a-1, a-2, a-3, a-4, b-1, b-2, b-3, b-4, j-1, j-2, j-3, and j-4 of the first amended petition were true. The juvenile court next admitted certain DCFS exhibits into evidence, including the detention and addendum reports and their attachments, the jurisdiction/disposition report and its attachments, and the April 5, 2019 and June 6, 2019 last minute information reports.
The juvenile court made certain amendments to these counts. For instance, amended count a-2 alleged that mother had "inappropriately disciplined" F.M., whereas this count previously alleged that mother "physically abused" the child.
The juvenile court then turned to counts b-5 and c-1 of the amended petition. Apolinar S. called the children's maternal grandmother (maternal grandmother) to the stand. Maternal grandmother testified that mother was in a relationship with Apolinar S. for eight years. Maternal grandmother stated that during those eight years, mother did not tell maternal grandmother that "anything . . . was wrong" with mother's relationship with Apolinar S., or "anything that would cause [maternal grandmother] to believe there was some kind of violence between" mother and Apolinar S. Maternal grandmother further testified that she did not remember seeing "any kind of marks or bruises" on mother's body during mother's relationship with Apolinar S. Maternal grandmother also stated that she did not remember any instance in which the children told her that they observed "any type of physical violence" in Apolinar S.'s and mother's home. Maternal grandmother also testified mother told her that Apolinar S. had "insulted" mother.
Next, mother's counsel called her client to the stand. Mother described two incidents of domestic violence that she claimed had occurred when she, Apolinar S., and the children lived in Eureka in the spring of 2018. With respect to the first incident, mother testified that Apolinar S. "grabbed [mother] and threw [her]" to the ground while the two of them were arguing in the bathroom at their home. She testified that Apolinar S.'s hand hit her "in the lip," which "caused [her] to bleed." Mother testified that at that time, the door to the bathroom was open and Apolinar S. was standing over her. She claimed that F.M. thereafter saw mother on the ground, "rushed in," "jumped on top of " mother, and "yelled at" Apolinar S. "not to kill" mother. Mother stated that she could not recall the precise month in which this incident occurred.
Mother testified that during the altercation, her other children "were in the hallway, hearing" Apolinar S. and mother.
Mother then described the second incident, which allegedly transpired in Eureka in May 2018. She claimed that on that occasion, mother and Apolinar S. had an argument in their bedroom. Mother testified that while mother was sitting on the edge of the bed, Apolinar S.'s "whole hand grabbed [her] neck and pushed down," causing mother to hit part of the bed post. Mother stated that, "[a]t that moment, [A.M.] jumped on [Apolinar S.'s] back," Apolinar S. stood up, A.M. "fell back," and Apolinar S. "turned around and tried to go towards" A.M. Mother further testified that she then "stood up, . . . pushed [Apolinar S.,] and [mother] told him to leave [A.M.] out of this." She said that although the other children were not in the bedroom during the altercation, they were all in the home at that time.
Mother described another instance of domestic violence that she claimed occurred in 2014 when she and Apolinar S. lived in Venice, California, and she was "around six months pregnant with" M.M. Mother testified that during that incident, Apolinar S. "choked" her "to unconsciousness by the front door."
Mother claimed that she and Apolinar S. had arguments on other occasions. She intimated that the three aforementioned incidents of domestic violence were the only occasions in which Apolinar S. had physically attacked her. Mother asserted that she did not tell anyone about these physical altercations. She claimed she did not disclose this information because when Geovanni R. had previously physically attacked her, mother "got a restraining order," the couple separated, and maternal grandmother apparently blamed mother for what had occurred.
After mother testified, the juvenile court stated it was inclined to "sustain an amended version of [count] b-5" and strike count c-1. The court explained that mother had "credibly described a fairly serious history of domestic violence with [Apolinar S.,]" and F.M. "seemed to have a fairly accurate memory of an incident that she couldn't have been coached on because mother never told anyone before." The court also noted that F.M. "has this traumatic memory, but there's a lot of other things that may be causing the child's emotional problems." The court expressed its intention to "amend the b-5 count down to what [the court] would consider a normal domestic violence count rather than [one that] include[s] all this detail about the child's emotional and behavioral problems . . . ."
After hearing oral argument from the parties' respective counsel, the juvenile court indicated it was "sustain[ing] [count] b-5 in some form" and dismissing count c-1.
With regard to the bathroom incident, the court found "there was very clearly a risk of physical harm at that time[,] not to mention, emotional injury" because "mother . . . said that [F.M.] was not only present but actually came into the room and tried to intervene." The juvenile court observed "it's unclear what mother's future relationship with [Apolinar S.] will be," and "[i]t is possible that the two of them might get back together." The court stated, "[T]here is a risk that the child could be . . . exposed to domestic violence in the future, either between [Apolinar S.] and mother or between [Apolinar S.] and another person, because people simply don't stop engaging in domestic violence unless they address why it happened and what behaviors of their own may need to change."
The amended version of count b-5 that the juvenile court ultimately sustained reads as follows: "The child, [F.M.'s], father Apolinar S[.] and mother . . . exposed the child [(F.M.)] to violent physical altercations. On a prior occasion, the child observed father striking the mother . . . and causing the mother to sustain an injury and bleed. Such exposure to domestic violence by the father and mother places the child at substantial risk of suffering serious emotional damage." 5. The June 26 , 2019 disposition hearing
The juvenile court held a disposition hearing on June 26, 2019. The juvenile court declared each of the children to be dependents of the court, removed them from the care, custody, and control of their mother and respective fathers, and ordered DCFS to provide family reunification services to mother, Geovanni R., and Apolinar S.
Over Apolinar S.'s objection, the juvenile court ordered him to attend a parenting class for special needs children. The juvenile court also ordered Apolinar S. to participate in conjoint counseling with F.M. if that course of action is recommended by F.M.'s therapist. The juvenile court ordered DCFS to provide Apolinar S. with unmonitored visits with all five children.
The juvenile court seems to have memorialized its oral rulings regarding the parenting class, conjoint counseling, and unmonitored visits in a case plan for Apolinar S. Apolinar S.'s case plan, however, is not in the appellate record.
On July 5, 2019, Apolinar S. appealed the juvenile court's jurisdictional and dispositional orders.
DISCUSSION
Apolinar S. challenges the juvenile court's decision to sustain amended count b-5. As we noted previously, amended count b-5 provides: "The child, [F.M.'s], father Apolinar S[.] and mother . . . exposed the child [(F.M.)] to violent physical altercations. On a prior occasion, the child observed father striking the mother . . . and causing the mother to sustain an injury and bleed. Such exposure to domestic violence by the father and mother places the child at substantial risk of suffering serious emotional damage."
He contends that this finding cannot support jurisdiction under section 300, subdivision (b) because risk of emotional harm is the subject of section 300, subdivision (c) and the juvenile court had dismissed the count based on subdivision (c) against Apolinar S. He further argues that, "[w]ithout proper jurisdiction, the court had no authority to issue the dispositional orders as to [him]."
We first address DCFS's argument that Apolinar S.'s appeal is not justiciable because the juvenile court would have jurisdiction over F.M. based on mother's and Geovanni R.'s no contest plea to the jurisdictional allegations against them. As discussed below, absent the juvenile court's jurisdictional findings, Apolinar S. would be a nonoffending parent. We thus exercise our discretion to reach the merits of Apolinar S.'s appeal.
Furthermore, we affirm the juvenile court's jurisdictional and dispositional orders. Although the juvenile court found a substantial risk of serious emotional harm in sustaining a count that purports to invoke jurisdiction under section 300, subsection (b), which addresses risks of physical harm, that error was harmless. More specifically, there was substantial evidence that Apolinar S.'s prior acts of domestic violence against mother exposed F.M. to a substantial risk of future serious physical harm.
A. We Exercise Our Discretion to Reach the Merits of Apolinar S.'s Jurisdictional Challenge
"As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings." (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) "However, when . . . the outcome of the appeal could be 'the difference between [a] father's being an "offending" parent versus a "non-offending" parent,' a finding that could result in far-reaching consequences with respect to these and future dependency proceedings, we find it appropriate to exercise our discretion to consider the appeal on the merits." (In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)
That exception to the general rule applies here. The only jurisdictional allegation the juvenile court sustained against Apolinar S. was amended count b-5. We thus exercise our discretion to address Apolinar S.'s challenge to that count.
B. Substantial Evidence Supports the Juvenile Court's Assumption of Jurisdiction under Section 300, Subdivision (b) Based on Risk of Serious Physical Harm to F.M.
Apolinar S. argues that the juvenile court erred in sustaining amended count b-5 because, "[w]hile there was some evidence that [F.M.] may be suffering emotional damage, the exact cause of which was disputed, jurisdiction under that scenario was only available under section 300, subdivision (c)." Apolinar S. contends that the juvenile court could not exercise jurisdiction under section 300, subdivision (c) because it had dismissed the count against Apolinar S. alleging jurisdiction under subdivision (c).
We agree that the "substantial risk of [F.M.] suffering serious emotional damage" identified in amended count b-5 would authorize jurisdiction under section 300, subdivision (c), but not subdivision (b) of that section. " ' "[S]ubdivision (b) means what it says." ' . . . Section 300, subdivision (b) does not provide for jurisdiction based on ' "emotional harm." ' " (In re Jesus M. (2015) 235 Cal.App.4th 104, 111-112.)
At the adjudication hearing, however, the juvenile court also indicated that Apolinar S.'s prior acts of physical harm to mother exposed F.M. to a substantial risk of suffering serious physical harm in the future. In particular, the juvenile court made the following observations: "[M]other also said that the child was not only present but actually came into the room and tried to intervene. So there was very clearly a risk of physical harm at that time . . . . [¶] . . . [I]t's unclear what mother's future relationship with [Apolinar S.] will be. It is possible that the two of them might get back together. And so I do think that there is a risk that the child could be put—could be exposed to domestic violence in the future . . . ."
Because we conclude that this finding is supported by substantial evidence, we also conclude that the juvenile court's citation to emotional distress in sustaining a count brought under section 300, subdivision (b) was harmless error. (Cf. In re Anthony Q. (2016) 5 Cal.App.5th 336, 353-356 [finding that the juvenile court's citation to the wrong statutory provision in its dispositional order was harmless error because the order was otherwise "authorized by the dependency statutes and justified by the court's factual findings"].)
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." ' " (In re I.J. (2013) 56 Cal.4th 766, 773.)
" ' "[D]omestic violence in the same household where children are living . . . is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." ' " (In re R.C. (2012) 210 Cal.App.4th 930, 941 (R.C.).) " ' "[P]ast violent behavior in a relationship is 'the best predictor of future violence.' " ' " (Id. at p. 942; see also In re A.F. (2016) 3 Cal.App.5th 283, 289 (A.F.) ["Although there must be a present risk of harm to the minor, the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection"].)
Here, mother's testimony established that while she lived with Apolinar S., he violently attacked her on three occasions, two of which occurred in the presence of their children. Mother's testimony amounted to substantial evidence that Apolinar S. exposed F.M. to " ' "the substantial risk of encountering the violence and suffering serious physical harm or illness from it." ' " (See R.C., supra, 210 Cal.App.4th at p. 941.)
Apolinar S. asserts the juvenile court lacked jurisdiction under section 300, subdivision (b) because: (1) "there was no evidence that [F.M.] suffered any physical injuries" when she witnessed Apolinar S. assault mother; (2) "the only domestic violence incident witnessed by [F.M.] occurred in 2018"; and (3) "[a]t the time of jurisdiction, [Apolinar S.] was no longer living with mother or [F.M.], thus there was no evidence that [F.M.] would be exposed to further physical injury." These arguments are unpersuasive.
The absence of actual physical injury to F.M. does not establish that jurisdiction under section 300, subdivision (b) was improper. The mere "[e]xposure to domestic violence may serve as the basis of a jurisdictional finding under [this provision]." (See R.C., supra, 210 Cal.App.4th at p. 941, italics added.) " 'Children can be "put in a position of physical danger from [spousal] violence" [by] "for example, . . . wander[ing] into the room where it was occurring and be[ing] accidentally hit by a thrown object, by a fist, arm, foot or leg . . . ." ' " (Id. at pp. 941-942.) For that reason, a juvenile court may invoke jurisdiction under section 300, subdivision (b) even if a child has emerged physically unscathed from an instance of domestic violence. (See, e.g., R.C., supra, at pp. 942-943, 945 [affirming the juvenile court's assertion of jurisdiction under section 300, subdivision (b) even though the child who witnessed a violent altercation "was not physically hurt"].)
Mother's separation from Apolinar S. and the length of time between the last instance of domestic violence and the jurisdiction hearing do not undermine the juvenile court's assertion of jurisdiction under section 300, subdivision (b). "Physical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) Substantial evidence in the record satisfies this standard.
In contending that the juvenile court's jurisdictional order must be reversed, Apolinar S. focuses on the amount of time between the "incident witnessed by [F.M.]" (i.e., sometime in the spring of 2018) and the date of the adjudication hearing (i.e., June 10, 2019). We conclude that the appropriate starting point was Apolinar S.'s most recent violent encounter with mother in May 2018, given that A.M.—F.M.'s sister—personally witnessed the incident and F.M. was also in the home at that time. Although it does not appear that the incident A.M. observed occurred much later than the one involving F.M., we note that utilizing this later event as the starting point shortens the amount of time in which Apolinar S. argues he did not expose the children to his violent behavior.
The evidence shows that in the spring of 2018, Apolinar S. "grabbed" mother and "threw" her to the ground, causing her to bleed. F.M. thereafter intervened by "jump[ing] on top of " mother in an apparent attempt to protect her, and "yell[ing] at" Apolinar S. "not to kill" mother.
The evidence further shows that the instance of domestic violence that F.M. observed was not an outlier; it was not the only instance in which Apolinar S. manifested his willingness to assault mother in the presence of the children. Later that spring, Apolinar S. grabbed mother's neck, pushed her down, and caused her to hit a bedpost. A.M. then jumped onto Apolinar S.'s back, apparently in an attempt to prevent him from causing further injury to mother. Instead, "[Apolinar S.] turned around and tried to go towards [A.M.]," which prompted mother to intervene to protect her child. Several years earlier, Apolinar S. nearly killed mother—while she was pregnant with M.M.—by choking mother into unconsciousness.
Moreover, during the December 2018 interview, mother suggested to DCFS that she left Apolinar S. because of his violent conduct: "Mother informed [the children's social worker] that in August 2017 she and the children moved to Eureka so that she could work things out with . . . Apolinar S[.], however, he became physically abusive." (Italics added.) Therefore, the mere fact that mother and Apolinar S. have separated does not establish that he no longer poses a substantial risk of serious physical harm to F.M.
Indeed, even after mother had separated from Apolinar S., he still denied any responsibility for assaulting mother. Thus, notwithstanding the passage of time and the fact that Apolinar S. and mother are separated, Apolinar S.'s failure even to acknowledge his past violent behavior, let alone express remorse or show any insight regarding it, exposes F.M. to a risk that he will once again physically attack mother in F.M.'s presence. (See A.F., supra, 3 Cal.App.5th at p. 293 [" '[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision' "].)
Additionally, Apolinar S. has expressed an interest in having custody of, and an ongoing relationship with, all five children. The juvenile court's orders in no way foreclose Apolinar S. from achieving that objective, given that the court has: (1) declared that he is the presumed father of each child, and (2) provided him and mother with family reunification services, including visits with all of the children. Accordingly, Apolinar S. will likely encounter mother in the children's presence in the foreseeable future. (See R.C., supra, 210 Cal.App.4th at p. 940 [during the proceedings below, the juvenile court observed that because the mother and the father " 'still have three children together[,] [t]hey're still going to be interacting with each other' "].)
Although Apolinar S.'s case plan does not appear in the record, the dispositional orders indicate that the juvenile court allowed him to have unmonitored visits with each child. (See ante, fn. 10 and accompanying text.)
For all these reasons, we conclude there was substantial evidence that Apolinar S.'s acts of violence against mother, including the incident in which F.M. intervened to protect mother, demonstrate that Apolinar S. still presents a substantial risk of serious physical harm to F.M. (See also R.C., supra, 210 Cal.App.4th at pp. 943-944 [finding substantial evidence that the father's violence was ongoing in part because "[t]his case does not involve a single act which endangers a child" but instead "involves two separate acts of domestic violence," one of which occurred "in the presence of one of the children"].)
Indeed, one court has observed: " ' "Studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of these relationships. . . . Even if a batterer moves on to another relationship, he will continue to use physical force as a means of controlling his new partner." ' " (R.C., supra, 210 Cal.App.4th at p. 942.)
In sum, we conclude that substantial evidence supports the juvenile court's assertion of jurisdiction as to Apolinar S. Because Apolinar S. does not challenge the juvenile court's dispositional orders on the merits, we affirm those orders as well.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
CHANEY, J.