Opinion
B297464
01-30-2020
In re MARIA J. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DAISY S., Defendant and Appellant.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP07042) APPEAL from orders of the Superior Court of Los Angeles County, Robin Kessler, Commissioner. Affirmed. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
Daisy S. (mother) appeals from an order sustaining a Welfare and Institutions Code section 387 supplemental petition alleging prior placement of her three children in her and Martin V.'s (father) home was ineffective. Mother also appeals from a related three-year restraining order requiring her to stay away from father and two of her children. Mother challenges the sufficiency of the evidence to support both orders. Respondent Los Angeles County Department of Children and Family Services (DCFS) urges this court to affirm the order sustaining the supplemental petition but takes no position on the restraining order. We affirm both orders.
Unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, Maria J. (born March 2010) and her half-siblings David V. (born March 2014) and Benjamin V. (born September 2016) came to the attention of DCFS after mother overdosed on prescription medication in front of father and Benjamin. After she was rushed to the hospital, mother tested positive for amphetamine, was placed in restraints, and subsequently admitted to suffering from psychosis, major depressive disorder, and anxiety. The court removed the children from the parents' home and placed Maria with her paternal grandmother and David and Benjamin with a foster family agency.
Though he is the biological father of David and Benjamin, father is not the biological father of Maria.
DCFS initially reported mother and father had a history of domestic violence that included prior incidents of father physically abusing mother. Benjamin was preverbal, but Maria and David reported feeling nervous when mother and father yelled at and hit each other. David further reported that he and Maria were physically disciplined by father.
Detention, Jurisdiction and Disposition
DCFS filed a section 300 petition alleging the children were at risk under section 300, subdivisions (a), (b), and (j). The court detained the children and ordered family reunification services and monitored visitation so long as mother and father did not visit the children together.
In a December 13, 2018 jurisdiction report, Maria admitted her parents "play fight or hit each other softly." She and David denied any physical abuse by father. Based on its investigation, DCFS recommended the children be placed in the parents' home with family maintenance services.
On December 19, 2018, the court sustained two counts of the section 300 petition against mother and under subdivision (b) due to the parents' engaging in violent altercations, mother's failure to protect the children from physical abuse, and mother's history of mental and emotional problems. The court placed the children in the parents' home under the supervision of DCFS.
The Temporary Restraining Order
On February 5, 2019, mother was arrested after she assaulted father in their home. During the incident, mother accused father of infidelity. As he began to call the police, mother grabbed father's arm and slapped the side of his head. The children were home during the incident, and Maria came out of her room when father called the police. She and David watched as mother was arrested.
Two days after the incident, father filed a request for a temporary restraining order and domestic violence restraining order to protect himself and the children. The court issued a temporary restraining order with personal conduct orders for mother not to harass, attack, strike, threaten, assault, follow, disturb the peace, or contact father and the children except for brief and peaceful contact as required for court-ordered visitation. The order also required mother to move out of the home. In subsequently granting the temporary restraining order, the court omitted Maria as a protected person and scheduled the order to expire on April 10, 2019, when it would hold a hearing for a more permanent order.
In an interview with DCFS, father reported feeling anxious coming home to mother, with whom he no longer wanted to be in a relationship. Similarly, Maria questioned her safety due to mother's erratic behavior around David. Though David stated he felt safe at home, he also reported seeing mother throw her phone at and punch the television around the time she was arrested for assaulting father.
In light of mother's recent arrest, and because mother continued to deny drug use despite testing positive for methamphetamine on January 8, 2019, and February 8, 2019, the court removed the children from mother's custody on February 25, 2019.
The Supplemental Petition
Three days later, on February 28, 2019, DCFS filed a section 387 supplemental petition alleging the previous disposition had not been effective in protecting the children, because mother and father "have a history of engaging in violence [sic] altercations in the presence of the children. On 2/5/2019, the mother slapped the father's face and pulled the father's arms with both of mother's hands. As a result of the incident, the mother was arrested. . . . The violent conduct by the mother against the . . . father . . . endanger the children's physical health and safety and place the children at risk of serious physical harm."
To modify a previous order by removing a child from the physical custody of a parent, section 387 requires a supplemental petition to be filed containing "a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child." (§ 387, subd. (b).)
At a March 1, 2019 detention hearing, the court found the supplemental petition established a prima facie case that the prior disposition was ineffective in protecting the children. It detained the children and ordered them placed with father.
In conjunction with the section 387 supplemental petition, DCFS filed a section 342 subsequent petition alleging the children were at risk due to mother's recent drug use. (See § 342, subd. (a) [subsequent petition required whenever new facts or circumstances, "other than those under which the original petition was sustained," arise and are sufficient to bring the minor under section 300].) The court sustained the section 342 petition and detained the children. Mother does not appeal from those rulings.
Disposition of the Supplemental Petition and Restraining Order
On April 10, 2019, the court held adjudication hearings on the supplemental petition and father's request for a restraining order. Following argument by counsel, the court found the domestic violence allegations in the supplemental petition true. Further, based on the evidence of domestic violence, and because mother tested positive for methamphetamine "just a few days surrounding the domestic violence," the court found sufficient evidence to grant the request for a restraining order prohibiting mother from, inter alia, contacting father, David, and Benjamin for three years. The court additionally found that substantial danger would exist if the children were returned to mother's custody (§ 361, subd. (c)), and ordered Maria suitably placed with paternal grandmother and David and Benjamin placed with father.
Mother filed a timely notice of appeal.
DISCUSSION
Substantial Evidence Supports the Supplemental Petition
Mother contends insufficient evidence supports the court's findings on the section 387 supplemental petition. We disagree.
A section 387 supplemental petition "is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care." (In re D.D. (2019) 32 Cal.App.5th 985, 989, citing § 387, Cal. Rules of Court, rule 5.560(c).) When adjudicating a supplemental petition, the juvenile court conducts a bifurcated hearing. (Id. at p. 990.) First, the court conducts an adjudicatory hearing to determine whether, by a preponderance of the evidence, the allegations are true and the previous disposition has not been effective. (Ibid.; rule 5.565(e)(1).) It is at the further dispositional hearing that the court considers if the child needs to be removed from his or her current level of placement. (In re D.D., supra, at p. 990; rule 5.565(e)(2).)
Unspecified references to rules are to the California Rules of Court.
We review an order sustaining a section 387 petition for substantial evidence. (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding." (Id. at pp. 1161-1162.)
Substantial evidence supports the order sustaining the allegations in the supplemental petition. (In re T.W., supra, 214 Cal.App.4th at pp. 1161-1162.) At the commencement of the dependency period, mother and father had an established history of domestic violence in front of the children, who corroborated the violence and parental discord when reporting that mother and father yelled at and hit each other. The pattern of violence and instability came to a head on February 5, 2019, when mother, seemingly unstable due to drug use and ongoing mental health issues, struck father and assaulted him while the children were home. After witnessing mother's arrest and erratic behavior around the time of the assault, Maria questioned her safety due to mother's erratic behavior around David, and father reported feeling anxious returning home to mother. Mother's role in the ongoing domestic violence, and her failure to appreciate the risks the children faced as a result of her conflict with father and substance abuse, support the court's finding that her conduct endangered the children's safety and wellbeing.
"'"[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." [Citation.] Children can be "put in a position of physical danger from [spousal] violence" because, "for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg . . . ." [Citation.]' [Citation.] . . . '"Both common sense and expert opinion indicate spousal abuse is detrimental to children." [Citations.]'" (In re R.C. (2012) 210 Cal.App.4th 930, 941-942.)
Mother focuses on DCFS's initial allegations that she was the victim of father's physical abuse. But when determining if a child's safety is at risk, we do not singularly focus on which parent is the aggressor, but focus instead on the existence of an abusive relationship between the parents, and whether that relationship poses a threat to the child. (In re E.B. (2010) 184 Cal.App.4th 568, 575-576 [victim/aggressor distinction inconsequential because it was the existence of an abusive relationship between parents that endangered the children]; see In re F.S. (2016) 243 Cal.App.4th 799, 814 [findings on supplemental petition affirmed; mother's status as victim of father's violence did not preclude finding that she was the aggressor during one incident such that placement with mother threatened the child's safety].) Substantial evidence supports the court's adjudication of the section 387 supplemental petition. Substantial Evidence Supports the Restraining Order
DCFS has informed this court that the juvenile court has since modified the restraining order such that it no longer restrains mother from having contact with David and Benjamin. The court also terminated Maria's suitable placement order with paternal grandparents and ordered the child placed in home of mother. We take judicial notice of the court's interim orders (Evid. Code, § 452, subd. (d)), but nevertheless address the merits of the issue due to collateral consequences. (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 209-210.)
Mother contends the three-year restraining order prohibiting contact with father, Benjamin, and David is not supported by substantial evidence. We disagree.
"'[W]e view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile court's determination'" when ascertaining if substantial evidence supports the restraining order. (In re B.S. (2009) 172 Cal.App.4th 183, 193.) Even though we review the issuance of the restraining order for an abuse of discretion (In re A.M. (2019) 37 Cal.App.5th 614, 619), "[t]he practical differences between these two standards in this context are not significant." (In re N.L. (2015) 236 Cal.App.4th 1460, 1466.)
Section 213.5 permits the juvenile court to issue an order no of more than three years duration enjoining any person from attacking, harassing, contacting or coming within a specified distance of, or disturbing the peace of the child and parent, as well as excluding any person from the dwelling of a person who has care, custody, and control of the child. (§§ 304; 213.5, subds. (a), (d)(1).) "'Issuance of a restraining order . . . does not require "evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child." [Citation.] Nor does it require evidence of a reasonable apprehension of future abuse. [Citation.]'" (In re N.L., supra, 236 Cal.App.4th at p. 1466.) Rather, the inquiry is whether the failure to make the order would jeopardize the safety of the petitioner and the children. (Ibid.; In re B.S., supra, 172 Cal.App.4th at p. 194.)
Substantial evidence supports the issuance of the restraining order in this case. The prior instances of mother's psychosis and medical intervention, and mother's assault of father while the children were home, raised ongoing safety concerns. Mother's erratic behavior did not end with the domestic violence incident, but continued by way of denied drug use and unsettled behavior in front of the children. (Compare In re C.Q. (2013) 219 Cal.App.4th 355, 364 [insufficient evidence supported inclusion of children in restraining order because "[t]here have been no reports that Father has engaged in any violent or otherwise inappropriate conduct" since the incident giving rise to the temporary restraining order].) On this record, the court did not abuse its discretion in determining that its failure to issue the order might jeopardize father and the children's safety. (In re N.L., supra, 236 Cal.App.4th at p. 1466.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.