Opinion
B298299
04-30-2020
In re VICTOR G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. IVAN G., Defendant and Appellant.
Jamie A. Moran, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18CCJP07238A) Los Angeles County APPEAL from an order of the Superior Court of Los Angeles County, Julie Fox Blackshaw, Judge. Affirmed. Jamie A. Moran, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Ivan G. (father) appeals the juvenile court's exertion of dependency jurisdiction over his six-year-old son, Victor G. Father argues that there was not substantial risk that his conduct—his repeated slapping, punching or pushing Victor's mother, sometimes with Victor present, and his repeated violations of court orders to stay away from the mother—posed a substantial risk of harm to Victor. We soundly reject this argument and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and Anna K. (mother) married in 2015, and had one child, Victor, in 2014.
In 2016, father started to verbally and emotionally abuse mother. Then he began to physically abuse her, and did so approximately 10 times prior to their separation. The final instances of physical abuse occurred on three separate days in mid-October 2018. In each of those instances, father slapped or punched mother in the face, pulled her by the hair, and shoved her face into the carpet; in one instance, he pushed her against a hallway wall and she banged her head on it. These incidents left mother with a black eye, bruises on her face and arms, and a contusion on her lip. The last incident took place in front of Victor, who at one point blocked father's access to mother and begged him, "[D]on't touch my mom."
II. Procedural Background
On November 9, 2018, the Los Angeles Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Victor due to the father's "history of engaging in violent physical altercations in the presence of" Victor and mother's "fail[ure] to protect [Victor] by allow[ing . . .] father to reside in the [family] home and have unlimited access to" Victor. This conduct, the petition alleged, put Victor at "substantial risk" of "suffer[ing] serious physical harm inflicted nonaccidentally" (thereby warranting dependency jurisdiction under Welfare and Institutions Code section 300, subdivision (a)) and at "substantial risk . . . [of] serious physical harm" "as a result of the [parents'] failure . . . to . . . protect" Victor (thereby warranting dependency jurisdiction under section 300, subdivision (b)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court initially detained Victor from father's custody and placed him with mother, but later detained Victor from mother as well after mother was found unconscious after ingesting Xanax and alcohol. A few weeks later, the Department filed an amended petition adding a new allegation based on mother's "history of substance abuse" and her "abuse[] of alcohol," which rendered her "unable to provide regular care and supervision" of Victor (thereby warranting dependency jurisdiction under section 300, subdivision (b)).
In the months following the October 2018 incidents and prior to the April 2019 hearing at which the juvenile court decided whether to exert dependency jurisdiction, the juvenile court issued protective orders prohibiting father from contacting mother. The People filed criminal charges arising out of the October 2018 incidents as well, and the criminal court also issued a "stay-away" protective order. Father violated these orders: He (1) filmed and sent a video to mother, and (2) sent mother several text messages (a) calling her names (such as "bitch" and "piece of shit"), (b) threatening to "smash [her] head" (c) telling her she would "get it in [her] fucking piehole," and (d) threatening to kill her and harm her family back home in Belarus. He also directed his former employer to send mother text messages imploring her to flee the area so the dependency and criminal cases would be dropped.
Just days after the jury in father's criminal case found him guilty of 26 crimes, including 14 involving physical violence against mother and 12 involving violations of protective orders and attempts to dissuade her to serve as a witness, the juvenile court held the jurisdictional hearing. The juvenile court sustained all of the allegations in the amended petition. With respect to the allegations involving father, the court noted that Victor "was not only aware of the violence, [but had] intervened in [the] violence between the parents," had "been traumatized" by that violence, and had "already been a victim of the violence that was perpetrated by . . . father against . . . mother." The court further noted that father's flat denials of abusing mother—in both the dependency case and through his testimony in the criminal case—left the court with "no[] confiden[ce] at all that[,] given the opportunity[,] father would not engage in similar violence and put[] the child again at risk." The court placed Victor with mother and ordered family maintenance services for her; the court removed Victor from father and ordered enhancement services for him.
Father filed a timely notice of appeal.
In May 2019, the criminal court sentenced father to five years of probation, including 364 days in the county jail. Then in October 2019, the juvenile court issued an exit order granting mother sole legal and physical custody of Victor and terminating dependency jurisdiction.
We grant the Department's request to take judicial notice of these further proceedings. (Evid. Code, §§ 452, subd. (d), 459.)
DISCUSSION
A juvenile court may exert dependency jurisdiction over a child if (1) "[t]he child has suffered, or there is a substantial risk 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 . . ., as a result of the failure or inability of his . . . 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 harm under subdivision (a) of section 300 (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-599 (Giovanni F.)), 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). In this appeal, father does not dispute his acts of domestic violence. Rather, father asserts that there is insufficient evidence to support a finding that his conduct placed Victor at "substantial risk" of "serious physical harm" by the time of the jurisdictional hearing. We review the juvenile court's factual findings regarding risk, like all of its factual findings, for substantial evidence. (In re F.S. (2016) 243 Cal.App.4th 799, 811-812.)
As a threshold matter, the Department argues that we need not reach the merits of father's substantial evidence challenge because (1) the sustained allegation against mother supports the juvenile court's exercise of dependency jurisdiction over Victor (In re D.P. (2014) 225 Cal.App.4th 898, 902 ["'[A]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate. [Citations.]'"]), and (2) the juvenile court's subsequent dismissal of dependency jurisdiction renders moot any challenge to the initial assertion of that jurisdiction (In re C.C. (2009) 172 Cal.App.4th 1481, 1488 ["As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot."]). We need not opine on these threshold issues because, as discussed next, father's challenge fails on its merits.
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), 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 (Daisy H.); In re M.W. (2015) 238 Cal.App.4th 1444, 1453-1454). Here, substantial evidence supported the juvenile court's finding, at the time of the April 2019 jurisdictional hearing, that the domestic violence was likely to continue (and hence that Victor remained at risk). By that time, father had been punching, slapping, pushing and/or yanking mother for approximately two years—and, on at least one occasion, done so while Victor was present. What is more, father steadfastly denied ever having done so, a denial that neither the jury in his criminal case nor the juvenile court in this case found the least bit credible. Such a false denial of abusive behavior is unlikely to lead to a change in that behavior, so the risk of future violence remains. (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"].) Not even multiple restraining orders from two different courts kept father from lashing out and threatening mother. (Giovanni F., supra, 184 Cal.App.4th at pp. 600-601 [violation of restraining orders supports finding of extant risk].) Father also indicated that he wanted to reunite with Victor and, as a result, that he and mother were "connected to each other for the rest of [their] lives." Taken together, these factors support a finding that father is likely to try to see Victor (and hence mother) in the future, that he is likely to continue to be violent toward mother, and that Victor will thus continue to be in substantial risk of serious physical injury.
Father resists this conclusion with three sets of arguments.
First, he obliquely suggests that jurisdiction is inappropriate under subdivision (a) because father's domestic violence has not yet resulted in harm to Victor. Although subdivision (a) enumerates a list of circumstances under which a juvenile court "may find there is a substantial risk of serious future injury" to a child, and although those circumstances involve children being injured (§ 300, subd. (a)), this list does not purport to be exhaustive and courts have not interpreted it as such. (Giovanni F., supra, 184 Cal.App.4th at pp. 598-599.) This makes sense because a contrary construction of subdivision (a) would give a parent an automatic "pass" for a child's first injury, a result wholly at odds with our Legislature's stated purpose for the dependency laws—namely, "to provide maximum safety and protection for children." (§ 300.2.)
Second, father asserts that any risk to Victor had dissipated by the time of the April 2019 jurisdictional hearing. The risk to Victor was minimal, father reasons, because he was only present for one of the many domestic violence incidents. What is more, father continues, by April 2019, (1) father had moved out of the family residence, (2) he and mother had filed for dissolution, (3) restraining orders were in place, (4) he was in custody in the criminal case, and (5) he had completed a 16-session parenting class and part of a 52-week domestic violence class. A child's presence during a domestic violence incident exacerbates risk, but his absence during the remaining incidents does not somehow eliminate it. Risk does not require certainty and arises from a parent's continued willingness to engage in domestic violence when a child could be harmed even if the child is not. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383 [affirming jurisdiction under subdivision (b) because "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 A.M. v. A.M. (March 5, 2020, E073805), ___ Cal.App.5th ___ ; In re Yolanda L. (2017) 7 Cal.App.5th 987, 993 [same].) Father's move out of the house, his separation from mother, and his incarceration pending sentencing did not foreclose a finding of risk to Victor in light of father's intention to remain in Victor's life, his continued acrimony toward mother, and the possibility at that time that father would be sentenced to a term involving no jail or prison time. (Accord, In re Carlos T. (2009) 174 Cal.App.4th 795, 806 [incarceration at time of jurisdictional hearing does not eliminate risk due to potential of reversal and release if appeal is successful].) The existence of the restraining orders did not reduce the risk to Victor in light of father's demonstrated willingness to violate them. And the classes father attended about how not to engage in domestic violence likely did little to reduce the risk to Victor in light of father's denial of ever engaging in domestic violence in the first place.
Lastly, father says this case is analogous to Daisy H., supra, 192 Cal.App.4th 713. There, the appellate court concluded that a child was not at risk when the parents had engaged in domestic violence on one occasion two to seven years prior to the dependency petition. (Id. at p. 717.) As set forth above, the facts of this case are materially different.
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