Opinion
B299421
05-13-2020
In re M.K., a Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.K., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP07869B) APPEAL from a judgment of the Superior Court of Los Angeles County, Martha A. Matthews, Judge. Affirmed. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel for Plaintiff and Respondent.
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INTRODUCTION
Father appeals the juvenile court's jurisdictional findings over his infant son. He asserts that because the court dismissed two counts alleged under Welfare and Institutions Code section 300, subdivisions (a) and (b), it was error to sustain a sole count under section 300, subdivision (j). Father argues there is no evidence of a current risk of harm to the child because the parents no longer live together and the domestic violence was too remote in time to support jurisdiction. We affirm the judgment.
Under some circumstances, section 300, subdivision (j) authorizes the juvenile court to assume jurisdiction over a child whose sibling previously was within the court's jurisdiction. Subdivision (j) provides that a child comes within the court's jurisdiction if two elements are met: (1) the child's sibling has been abused or neglected as defined by section 300, subdivision (a), (b), (d), (e), or (i), and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions.
All subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father have a son, born in 2019, who was the product of their nine-year relationship. Mother also has a daughter (born 2007) from a previous relationship. Daughter's biological father was convicted of first degree murder in 2011 and sentenced to life without the possibility of parole. Daughter has appeared to have lived with mother since birth. Mother began dating father in 2010, and they moved in together in 2012. Father is a paternal figure to daughter, who calls father "dad." The only party to this appeal is father; the only child at issue is son. 1. History of Domestic Violence
Mother reported her relationship with father was good until they started arguing about money in 2016. On October 19, 2016, police received a domestic violence call involving the parents. Mother informed the police that during an argument, father called her a whore. When mother turned around to walk away, father grabbed the back of her sweatshirt and pulled it. After mother turned to face him, father pushed her until she fell backward onto a couch. Father then struck mother in the face and stated, "Look what you made me do." Father left the apartment while mother called the police. One of the responding officers took photographs of mother's injuries and referred the matter to the Department of Children and Family Services (DCFS).
Father was a dependent from ages sixteen to twenty-one due to his own parents' neglect. He has a history of contact with law enforcement, including arrests for suspicion of robbery, vandalism, possession of controlled substances, threats, and spousal abuse. In 2011, father sustained a burglary conviction.
Mother is five feet, two inches tall; father is six feet, six inches. Father weighed 100 pounds more than mother.
DCFS investigated and learned mother did not want a restraining order against father. Mother informed DCFS that daughter was not home during the incident and father had left the residence. Following its investigation, DCFS deemed the emotional abuse and general neglect allegations in the referral to be inconclusive.
On August 15, 2018, police received another domestic violence call involving the parents. Mother reported father came home, verbally abused her, removed her glasses from her face, and pushed his forehead against mother's. Mother became scared and went to the kitchen to grab a knife to protect herself. Father followed her, grabbed her with both hands, pushed her against the wall, and head-butted her twice. Father fled the apartment when mother called 911. Mother told police she did not want to press charges against father.
Less than two months later, on October 7, 2018, police responded to a third domestic violence call. During this incident, father argued with mother about their relationship and pushed her against the kitchen counter. Mother was seven months pregnant with son and reported that father had threatened to kill her and the baby. In tears while talking to the police, mother expressed that she was fearful of father. Daughter (then 11 years old) was home during the incident. Although she did not see the physical violence, daughter told the officers she heard father threaten to kill mother and the baby. Police arrested father. Mother informed police that she did not want father to be prosecuted and that she would not testify against him. 2. DCFS Investigation
On October 9, 2018, police informed DCFS of the recent domestic violence incident, that mother refused to press charges, and agreed to obtain an emergency protective order. The police reported that when the officers responded to the call, father had fled, and they were unable to locate him.
In a conversation with DCFS on October 9, 2018, father denied hitting mother. Father said he and mother were arguing over finances and mother attacked him. Father also denied threatening mother and stated that after his release from jail, he planned to move out of mother's apartment in order to avoid "false accusations" in the future.
Mother informed DCFS that father pushed her while they were arguing, but did not hurt her. She denied he threatened her, telling the social worker that father kept repeating the phrase "you're dead, you're dead," which mother understood to mean that she was dead to him.
Daughter told DCFS that the October 2018 incident was not the first time the parents had fought. Daughter had seen bruises on mother's arms, but mother would not tell daughter how she sustained them. Daughter recalled mother and father had fought more than five times in her presence. She had seen mother lock herself into a room after an argument with father to prevent him from hitting her. Daughter reported that the parents always reconciled after fights and behaved normally again. She denied being scared of father but stated she was tired of watching mother arguing and "getting hit."
On October 12, 2018, father pled no contest to child endangerment and domestic violence. The criminal court issued a protective order protecting mother and daughter from father. As part of his probation, the criminal court ordered father to complete a 52-week domestic violence counseling program.
In November 2018, DCFS spoke with mother's neighbor, who knew the family and stated she had ended her friendship with mother because mother kept allowing father back into the home after their fights. The neighbor indicated there had been several times when daughter had run to her house for support when mother and father were fighting.
The following day, DCFS visited daughter at her school. The child reported she spent Thanksgiving with mother and father, and that father had moved back in with the family. Daughter stated father had been living in the family home for a few weeks. She explained father showed up, apologized, and took her and mother to a movie. 3. Petition on Behalf of Daughter
In December 2018, DCFS obtained a removal order for daughter and filed a section 300 petition based on the domestic violence between mother and father. DCFS expressed concerns that mother was demonstrating a pattern of being unable to protect herself and daughter and by allowing father to return home in violation of an active restraining order. DCFS noted mother minimized the escalating domestic violence in her home and the risk her relationship with father posed to daughter and mother's unborn child. Daughter was returned to mother on December 12, 2018.
On January 24, 2018, the juvenile court sustained the petition finding that daughter came within the provisions of section 300, subdivision (a) and (b). The court ordered family maintenance services for mother and issued a restraining order against father, ordering him to have no contact with mother or daughter. 4. Petition on Behalf of Son
In 2019, son was born and remained in mother's custody for about a month. DCFS received a referral for son in January 2019, based on daughter's open case, and that the existing protective order against father did not include son.
On March 1, 2019, DCFS requested and the court granted removal of son from the parents. Pursuant to that order, son was detained on March 4, 2019.
On March 6, 2019, DCFS filed a petition in the juvenile court alleging son came within the provisions of section 300, subdivision (a), (b), and (j) due to domestic violence between father and mother in the presence of daughter.
On March 7, 2019, the juvenile court found father to be son's presumed father. Father's counsel informed the court that father was in agreement with DCFS's recommendation to detain son from father. The court found a prima facie case to detain son from father and that son was a child described by section 300. The court released son to mother's custody. 5. Further Investigation
DCFS contacted father in mid-February to assess son's wellbeing. Father continued to deny domestic violence and said he would never hurt anyone. In March 2019, father told DCFS that the October 2018 incident started when mother attacked him after seeing a "screen shot" of father's conversation with a co-worker. He denied hitting mother and said he was trying to keep her from scratching him. Father stated, "It takes two to fight."
Father also reported in mid-February 2019 that he was enrolled in domestic violence counseling at a recovery center. However, the group facilitator reported that father last attended group therapy on January 30 and was being discharged from the program for non-attendance. When asked about his discharge, father told DCFS that he could no longer afford the cost of the classes. The facilitator informed DCFS that the program offered support to individuals who needed financial assistance and father's claim that he could not attend classes because he was financially struggling "just sounded like excuses." On February 26, 2019, the criminal court found father to be non-compliant with the terms of his probation, specifically, the requirement that he attend domestic violence counseling.
Father worked full-time and reported he tried to avoid going to El Monte, where mother lived. The parents were no longer living together or involved in a romantic relationship, and had no contact for several months. Mother thought it was unlikely she and father would "rekindle" their relationship as it had broken down. Father's monitored visitation with son at the paternal grandfather's home went well.
By May 2019, father was not participating in any services and was not in regular contact with DCFS. Father requested a DNA test to determine whether son was his biological child, which the juvenile court granted. The DNA test confirmed that father was son's biological parent. 6. Jurisdiction and Disposition
On June 26, 2019, the juvenile court held the combined jurisdiction and disposition hearing. Father was not present, but was represented by trial counsel. The juvenile court received DCFS reports and other documents into evidence without objection.
Counsel did not explain father's absence and did not request that the matter be continued.
Mother's counsel asked the court to strike mother from the petition because she had been cooperating with DCFS, had both children in her custody, and had a protective order against father. Father's counsel requested the petition be dismissed in its entirety. Father's counsel argued that since son was born, there had been no further incidents of domestic violence between the parents, a safety plan was in place, and the parents remained separated. Based on the parents' 10-year relationship, the history of domestic violence, and father having threatened son while mother was still pregnant, son's counsel asked the juvenile court to sustain the petition with respect to father only.
Counsel for DCFS argued that mother should not be dismissed from the petition. She noted mother had not started any programs, minimized the incidents of domestic violence, and previously had failed to enforce a protective order against father by allowing him to move back into the family home. She also expressed concerns that neither parent had addressed the issues that brought the family to the attention of the court as father was not in compliance with his domestic violence counseling and daughter reported it was common for the parents to fight and then make up. Counsel for DCFS argued there still was a risk of harm to son.
The juvenile court agreed that mother had minimized the violence and violated the protective order. The court described mother's response to the domestic violence as "disturbing" and sustained the section 300, subdivision (j), count as to both parents. The court dismissed the allegations under subdivisions (a) and (b) with prejudice.
For disposition, the court ordered son removed son from father's custody and to remain with mother, family maintenance services for mother, and enhancement services for father. Father timely appealed.
DISCUSSION
Father argues that because the court dismissed the allegations under section 300, subdivisions (a) and (b), it implicitly found there was no risk to son, and therefore was also required to dismiss the allegation under subdivision (j). He also asserts that the evidence was insufficient as find substantial risk of harm because the parents had separated. We disagree. 1. Applicable Law
We review the juvenile court's jurisdictional findings for substantial evidence. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 966.) "Substantial evidence is relevant evidence which adequately supports a conclusion; it is evidence which is reasonable in nature, credible and of solid value." (In re R.C. (2012) 210 Cal.App.4th 930, 941.) Although substantial evidence may consist of inferences, the inferences " 'must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].' " (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394, italics omitted.) Conflicts in the evidence and reasonable inferences are resolved in favor of the prevailing party. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) "[I]ssues of fact and credibility are questions for the trier of fact." (Ibid.)
"Subdivision (j) applies if (1) the child's sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions. (§ 300, subd. (j).)" (In re I.J. (2013) 56 Cal.4th 766, 774.) Subdivision (j) includes a list of factors for the court to consider: "the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child." (§ 300, subd. (j).)
"The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j)." (In re I.J., supra, 56 Cal.4th at p. 774.) Significant to the present appeal, subdivision (j) "accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance." (Ibid.) 2. Jurisdiction Was Supported by Substantial Evidence
Here, father concedes that "the record confirms that the first element was met - on January 24, 2019, the court had sustained subdivision (a) and (b) allegations as to [daughter] in another case." Father takes issue with the second prong, arguing that the record fails to show there was a substantial risk of harm to son. Father asserts there was no substantial risk of harm to son because the parents no longer lived together and were unlikely to resume their relationship, and father had no direct contact with son. Father also contends that by dismissing the subdivision (a) and (b) allegations, the court essentially found there was no current risk to son. Father partially mischaracterizes the court's ruling.
In dismissing counts (a) and (b), the court neither stated nor suggested that the risk of harm to son was insubstantial. What the trial court really said was:
"I'm inclined to sustain only the J count, because although there was quite serious domestic violence, it does appear that all that occurred before this child was even born. And I think [DCFS] has met its burden, given the long history, and some of the denial and minimizing that were evident in some of the statements, in both parents actually, I think [DCFS] has met its burden, but it just seems like it really is a 'J.' " (Italics added.)
Far from minimizing the substantial risk to son, the court explained that there was such a risk: "When [mother] was interviewed about the petition regarding [daughter], she denied any domestic violence, and then she sort of said she admitted there had been some incidents but minimized them. [Daughter] then gave a very detailed description of the domestic violence showing that she had been exposed to a lot. [¶] And then . . . mother had a restraining order but let the father come [back] to the home, and then there was another incident further exposing [daughter] to the violence. As recently as January of this year, the mother minimized the domestic violence. [¶] This was a little disturbing. [Daughter] said the same sort of minimizing statement in almost the same words as the mother had written, which suggests the mother may be passing on this pattern of denial to her child, which could create various kinds of problems. So the mother's protective behavior has been fairly recent when compared with the very long history of severe violence, including . . . threats to kill the baby. So . . . [count] j-1 will be sustained as pled because . . . that really captures what this case is really about. Although, fortunately, [there] have been no incidents that directly put the baby at risk, the long history involving the sibling sustains a 'j' count. So I'm going to strike a-1 and b-1 and just sustain the j-1."
The record reasonably supports the court's analysis of substantial risk of harm to son. Although son was not directly exposed to father's domestic violence, father threatened son's life in utero and later questioned the child's paternity. Moreover, the parents had a years-long history of domestic violence, which neither parent had addressed by the time of the jurisdiction hearing. Daughter reported that father physically assaulted mother on many occasions, and that the parents had a pattern of fighting and subsequently making up and acting "normal" again. After the October 2018 incident (where father threatened to kill mother and unborn son), mother allowed father to move back into the home despite the existence of the protective order. At the time of the jurisdictional hearing, father had been terminated from his court-ordered domestic violence counseling (associated with his domestic violence conviction) for failure to attend. Father was not present at the June 2019 hearing and his counsel did not submit any paperwork to the court indicating father was making any progress in addressing his domestic violence. As for mother, she first sought to enroll in the domestic violence classes and individual counseling only in June 2019, less than a month before the jurisdiction hearing.
Although the parents had a nine-month period of separation, neither had addressed the domestic violence. Father never acknowledged the seriousness of his behavior. The parents' long history of reuniting after violence and minimization of the violence provided substantial evidence that son remained in substantial risk of harm.
Father relies on In re Israel T. (2018) 30 Cal.App.5th 47, in arguing that the juvenile court's dismissal of the counts under subdivision (a) and (b) demonstrated there was no substantial risk of harm to son. In re Israel T. is inapt. There, the appellate court reversed the juvenile court's jurisdictional order because the juvenile court had expressly found there was no substantial risk of serious harm to the children, and at the dispositional phase, stated that the parents did not constitute "any kind of risk to the children." (In re Israel T., supra, 30 Cal.App.5th at p. 48.) The facts here are very different: the juvenile court found a serious risk of harm existed and removed son from father's custody.
Substantial evidence supported the court's ruling.
DISPOSITION
We affirm the juvenile court's judgment.
RUBIN, P. J. WE CONCUR:
BAKER, J.
MOOR, J.