Opinion
B308636
04-30-2021
In re Marvin S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CAREN S., Defendant and Appellant.
Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 20CCJP03275A) APPEAL from an order of the Superior Court of Los Angeles County, Stephen C. Marpet, Judge Pro Tempore. Affirmed. Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
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In this juvenile dependency case, the mother challenges the sufficiency of the evidence supporting the assertion of jurisdiction over her two-year-old son. We conclude there is sufficient evidence and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Caren S. (mother) and Marvin R.-V. (father) have one child together, Marvin S. (Marvin). Marvin was born in December 2018.
On May 2, 2020, mother saw father view a photograph of a nude woman on his laptop computer. Incensed, mother struck father in the face several times with an open and closed hand, pushed him several times and, when he fell to the ground, stepped on his arm and kicked him several times. Mother later admitted that she had "lost control" and "couldn't stop" herself. The incident was so violent that father had swelling on his face and lip and that it resulted in criminal charges against mother to which she entered a plea.
Marvin was in the room at the time, and began to cry as mother attacked father.
Father called 911, and told the responding police officers that mother had assaulted him twice before.
II. Procedural background
On June 18, 2020, the Los Angeles County Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Marvin on the grounds that the domestic violence between mother and father placed Marvin at substantial risk of serious physical harm, thereby warranting the exercise of jurisdiction under Welfare and Institutions Code section 300, subdivisions (a) and (b).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At a contested hearing on November 2, 2020, the juvenile court sustained jurisdiction under both statutory provisions as to mother. The court emphasized that "one-year-old [Marvin] was in the . . . room when this incident happened" and "was screaming."
The court ordered that Marvin be removed from mother's custody and placed in the home of father. The court also ordered that mother's visitation with Marvin be monitored, but granted the Department the discretion to permit unmonitored visits.
Mother filed this timely appeal.
DISCUSSION
In this appeal, mother argues that (1) the juvenile court's jurisdictional finding is unsupported by substantial evidence, (2) its removal finding is unsupported by substantial evidence, and (3) the Department abused its discretion in not liberalizing her visitation with Marvin. While the parties were briefing this appeal, the juvenile court vacated its removal order and allowed mother to resume living with father and Marvin. As a result, mother's second and third challenges are now moot. (E.g., In re Raymond G. (1991) 230 Cal.App.3d 964, 967.) Mother concedes that her third challenge is moot, but argues that her challenge to the removal order is not moot because she would not be entitled to the full six-month minimum of reunification services if Marvin is removed from her a second time. (§ 361.5, subd. (a)(1)(B); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 308-309.) We reject mother's argument because its factual premise is invalid: Because Marvin was placed with father, the services mother received while Marvin was removed from her were enhancement services, not reunification services (Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1497, fn. 1); as a result, the "clock" on reunification services has yet to start running. (In re A.C. (2008) 169 Cal.App.4th 636, 650; In re T.W. (2013) 214 Cal.App.4th 1154, 1169 ["the time limits for services set forth in section 361.5 do not apply if the child is not removed from the custody of both parents at the disposition[al] hearing"].)
Although the minute order from the dispositional hearing directed the Department to provide mother with "reunification services," this was a misnomer because reunification services are provided only when a child is removed from both parents, not just one.
We therefore turn to the sole challenge properly before us—that is, mother's challenge to the juvenile court's jurisdictional findings. Among other grounds, a juvenile court may exert dependency jurisdiction over a child if (1) "[t]he 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" (§ 300, subd. (a)), or (2) "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child" (§ 300, subd. (b)(1)). Exposing a child to domestic violence can risk the nonaccidental infliction of serious physical injury under subdivision (a) of section 300 (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-599), and can constitute a failure to protect a child from the risk of such injury under subdivision (b) (In re Heather A. (1996) 52 Cal.App.4th 183, 194). Because dependency jurisdiction turns on the risk to the child "'"at the time of the [jurisdictional] hearing"'" (In re M.M. (2015) 240 Cal.App.4th 703, 719 (M.M.)), the propriety of jurisdiction due to a child's exposure to domestic violence under subdivisions (a) and (b) of section 300 turns on whether "the violence is ongoing or likely to continue." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717; In re M.W. (2015) 238 Cal.App.4th 1444, 1453-1454.) We review the juvenile court's factual findings regarding risk, like all of its factual findings, for substantial evidence. (M.M., at pp. 719-720.) This means we view the evidence in the light most favorable to the juvenile court's findings. (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384, superseded by statute on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.)
Substantial evidence supports the assertion of dependency jurisdiction. It is undisputed that mother engaged in domestic violence with father. Substantial evidence also supports the court's finding that Marvin is at substantial risk of serious physical harm because that violence is likely to continue. This was the third instance of violence between the parents. Marvin was in the room when it happened. And mother was, in her own words, "out of control." This supports the trial court's finding that the violence is likely to continue and that Marvin remains at risk.
Mother offers three arguments in response.
First, she argues that the May 2020 incident was the only domestic violence incident between herself and father. For support, she points to father's subsequent denials of prior incidents to the Department; mother's own denials of any prior violence; mother's sister's denial of any prior violence; and the absence of any prior calls to the police for domestic violence. Mother surmises that the police must have misunderstood father's comment regarding prior incidents based on a language barrier. The juvenile court had all of this evidence before it, and chose to credit father's contemporaneous statement to the police and the fact that not all incidents of domestic violence end with a 911 call. We decline mother's invitation to reweigh the evidence. (People v. Prunty (2015) 62 Cal.4th 59, 89; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Second, mother argues that Marvin was not in the room where she attacked father in May 2020. Once again, mother urges us to disregard father's contemporaneous statement to the police that Marvin was present in favor of father's and mother's later statements to the Department that Marvin was elsewhere. Once again, we cannot—and will not—reweigh the evidence. What is more, it was undisputed that mother's violence was loud enough to prompt Marvin to cry and scream, which means Marvin was close enough to be disturbed by the violence and hence potentially in harm's way regardless of which room of their one-bedroom apartment he was specifically in.
Third, mother argues that any risk of harm to Marvin should be discounted in this case because (1) her history of domestic violence with father does not match the "power and control dynamics typically seen in domestic violence relationships," (2) mother had directed her violence toward father, not toward Marvin, (3) mother was making good progress in the domestic violence program imposed as part of her sentence in the criminal case and was having good visits with Marvin, and (4) her case is analogous to In re J.N. (2010) 181 Cal.App.4th 1010, which held that there was insufficient evidence of risk to a child arising from a single incident of driving with the child in the car while intoxicated for which the parent later expressed remorse. These arguments are not well taken. Dependency jurisdiction turns on whether domestic violence between a child's parent presents a risk of harm to the child, not on whether that violence fits the textbook definition of domestic violence. Dependency jurisdiction is proper even when a parent does not direct her violence toward the child. (M.M., supra, 240 Cal.App.4th at pp. 719-720.) Mother's progress in her domestic violence program and her good visits with Marvin are commendable, but do not erase the risk of harm posed by her history of violence against father that flares up when she loses control. And this case is unlike In re J.N.: Although mother has expressed regret for the incident, it was not a one-time incident and mother repeatedly minimized her conduct by initially blaming the incident on father hitting himself in the face with his own computer. Minimization and denial of conduct are evidence of continued risk. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
CHAVEZ