Opinion
B297675
03-03-2020
In re D.B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
Keiter Appellate Law and Mitchell Keiter 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 19CCJP01843A-B) APPEAL from an order of the Superior Court of Los Angeles County, Philip Soto, Judge. Reversed and remanded. Keiter Appellate Law and Mitchell Keiter 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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I. INTRODUCTION
M.B. (father) challenges on appeal the jurisdictional findings by the juvenile court that he committed domestic violence and thus endangered the safety of his children D.B. and P.B., and the dispositional order removing his children from his custody pursuant to Welfare and Institutions Code section 361, subdivision (c)(1). Father contends that the court committed reversible error by denying him the opportunity to testify at the jurisdictional and dispositional hearing. We agree, reverse the order, and remand for a new hearing.
Further statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
A. Referrals
Father and L.B. (mother) are the parents of D.B. and P.B., who were 16 years old and 13 years old, respectively, at the time of the detention report. According to the detention report, on November 8, 2018, the children were in their bedrooms while the parents were in the kitchen of their home. Mother told father to do the dishes and father said he would do it "tomorrow morning." Mother became enraged at the response, took a plastic knob from the stove, and threw it at father, striking him in the left eye and causing a three-inch laceration, profuse bleeding, heavy swelling, and bruising. D.B. heard the argument but stayed in his room. P.B. saw the aftermath of the incident and called 911. Mother left the home. Father was taken to the hospital. Father obtained an emergency protective order that granted him temporary custody of the children. When interviewed by law enforcement officers, father denied any prior incidents of domestic violence between him and mother.
On December 19, 2018, a social worker interviewed mother, who stated that on November 8, 2018, mother asked father to help with the dishes and father responded by "calling her names in his language." According to mother, father used her maiden name in a derogatory manner and called her a prostitute. Mother admitted throwing the knob at father, although she stated that she did not do so maliciously. Father responded by stating that he was going to kill mother and mother ran out of the house. This was not the first time that mother had run from father.
Mother reported that father was from Iran.
The social worker interviewed father and the children on January 25, 2019. Father confirmed that mother struck him with a kitchen knob. Father said he and mother had participated in couples counseling in the summer of 2018 and denied needing parenting classes or family counseling.
D.B. stated that the altercations between father and mother were not physical, but mother would throw things, and father would curse in his native language. D.B. stated the November incident was an accident and a mistake. P.B. confirmed the November incident occurred, but was unclear as to whether she witnessed the knob being thrown. P.B. had previously witnessed the parents engaging in verbal arguments.
On February 15, 2019, the social worker interviewed maternal grandmother, who stated that she had previously seen father kick mother in the leg, leaving a bruise.
On February 28, 2019, mother confirmed father swore at her in his native language, calling her a prostitute, and making vulgar comments to her. Mother stated father cursed in front of the children such that P.B. now insulted mother in the same manner.
On March 4, 2019, father was again interviewed regarding the February 25, 2019, referral. Father declined services for himself, stating that mother was the one with the anger management issues.
On March 8, 2019, mother described father as a "tyrant and belligerent and a 'monster.'" Mother confirmed that father insulted her. Mother stated father inflicted abuse upon her, of which 5 percent was physical, 80 percent was emotional, and 15 percent was sexual. Father threatened that he would not pay for or do certain things if mother did not have sex with him.
Both children were removed on March 18, 2019, by court order. B. Section 300 Petition and Detention Hearing
On March 21, 2019, the Los Angeles County Department of Children and Family Services (Department) filed a juvenile dependency petition pursuant to section 300, subdivisions (a) and (b)(1). For counts a-1 and b-1, the Department alleged: "The children['s] mother . . . and the . . . children's father . . . have a history of engaging in violent altercations. On 11/[]8/2018, the mother threw a knob from a stove at the father, striking the father's face, and inflicting a bleeding laceration, a bruise and swelling to the father's left eye. The father threatened to kill the mother. The violent altercation occurred in the children's home, while the children were present. On prior occasions, the mother threw objects in the home, during altercations with the father. On a prior occasion, the father kicked the mother inflicting a bruise to the mother's leg. On additional occasions, the mother and father engaged in violent altercations in the presence of the children. Such violent conduct by the mother and father, endanger the children's physical health and safety, create a detrimental home environment and place the children at risk of serious physical harm, damage and danger."
The Department also alleged a count b-2 regarding alleged violence by D.B. upon P.B. and the parents' failure to provide appropriate supervision. The juvenile court struck the count at the jurisdictional and dispositional hearing.
At the March 22, 2019, detention hearing, the juvenile court found a prima facie case to detain the children. The children were placed separately with a non-relative extended family member. C. Jurisdictional and Dispositional Report
In an interview on April 4, 2019, P.B. told a dependency investigator that she had seen father strike mother. Regarding the November 2018 incident, P.B. witnessed mother throw the knob "'not directly at [father], but at his computer.'" When asked about domestic violence between the parents, P.B. stated, "'To be honest, I don't remember anything. I have witnessed my dad strike my mom. My mom used to scream and throw things, but not at us. She would throw things on the floor. My mom was so angry and so frustrated from being undermined and oppressed by my father.'"
In an interview on April 4, 2019, with the dependency investigator, D.B. denied any domestic violence between the parents. When asked about whether D.B. had witnessed father strike mother, D.B. stated, "'He just puts his arms up when she's hitting him.'"
In an April 2, 2019, interview, mother described father as abusive and stated that there were many domestic violence incidents between them. Mother recalled calling the police in March 2018 because father had hit or kicked her. Mother stated father has kicked her, hit her, thrown her down, called her names, and grabbed her wrist to prevent her from walking away.
At an April 8, 2019, interview, father denied mother's accusations that he had hit her or thrown her down. Regarding the March 2018 allegations, father stated mother called the police because of P.B.'s behavior, and denied any altercation between him and mother.
The investigator reported that during a CFT (child family team) meeting, father indicated he had no idea why the children were removed from his care. Father did not admit any fault regarding the Department's involvement with the family. Father also repeatedly declined support services. D. Jurisdictional and Dispositional Hearing
At the jurisdiction portion of the hearing, father's counsel requested the opportunity for father, who was present, to testify, to which the juvenile court asked for an offer of proof. Father's counsel offered that: "My client's position is that the domestic violence has been one[-]sided. He will testify as to incidents that occurred that are not covered in the report and an anger management circumstance. He will take ownership of his responsibility for not protecting the children from exposure to the domestic violence, and the subsequent occurrences and how they have affected the children . . . ."
The juvenile court then asked for an estimate for how long father's testimony would take. Father's counsel responded, "between 20 and 30 minutes."
The juvenile court ruled: "Denied. [¶] Even if I were to agree that the father was entirely the victim—which is what his position is—the court would still have enough in order to take jurisdiction over the children regardless of whether or not he conducted or engaged in domestic violence also."
Father's counsel asked, "And it is the court's position that my client's credibility is not to be assessed from his testimony?"
The juvenile court responded, "The point being is that whether he is credible or not credible doesn't mean that the evidence that's been produced by the Department is insufficient for the court to take jurisdiction. I could believe he's the most credible person in the world, [counsel]. That doesn't mean I will not take jurisdiction based on the evidence that I have seen so far about the mother throwing the knob at him and hitting him in the face."
When the hearing resumed after a break, the juvenile court further stated: "So everybody is clear: over the lunch period, the court, again, reviewed your client's statements to the social workers which, in this court's opinion, adequately expressed his feelings that he's not liable for any of these domestic violence assertions. And anything else that he might say in examination is more time consuming than probative to this court. And in this court's discretion, it will not be allowed. There will be no other testimonial evidence provided to the court from the father."
After hearing argument, and based on the reports submitted, the juvenile court sustained counts a-1 and b-1, as amended, and struck count b-2.
Counts a-1 and b-1 were amended such that the second sentence now read: "On 11/8/2018, the mother threw a knob from a stove in the direction of the father, striking the father's face, and inflicting a bleeding laceration, a bruise and swelling to the father's left eye." (Italics added.)
At the disposition portion of the hearing, father's counsel again requested that father be allowed to testify. The juvenile court denied the request, finding that father did not have a right to testify. After hearing argument, the court found removal from the parents' custody was necessary pursuant to section 361, subdivision (c). The children were ordered suitably placed. The court ordered both parents to participate in 26 weeks of a batterer intervention program and 26 weeks of a support group for victims of domestic violence. Mother and father were also ordered to participate in parenting classes and individual counseling. They were provided monitored visits, with discretion by the Department to liberalize. Father timely filed a notice of appeal.
III. DISCUSSION
A. We Will Consider Merits of Father's Appeal
As an initial matter, because father does not contest the juvenile court's exercise of dependency jurisdiction over the children, we could affirm the juvenile court's jurisdiction over the children regardless of our views of the juvenile court's sustaining of the allegations that father engaged in domestic violence against mother. (In re I.J. (2013) 56 Cal.4th 766, 773.) Because, however, the court made a jurisdictional finding that rendered father an "'offending' parent" and required father to participate in a 26-week program as a domestic violence batterer, we will exercise our discretion to consider the merits of father's appeal. (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) B. Trial Court Erred in Precluding Father from Testifying
Father contends the trial court erred in prohibiting him from testifying at the jurisdictional and dispositional hearing. The Department concedes that father had a due process right to testify at the hearing, but contends that the trial court appropriately exercised its discretion to exclude his testimony.
In dependency proceedings, parents have a due process right "to be heard, adduce testimony from witnesses, and to cross-examine and confront witnesses." (In re Armando L. (2016) 1 Cal.App.5th 606, 620.) Due process "is a flexible concept[, whose application] depends upon the circumstances and a balancing of various factors." (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) Moreover, a "juvenile court is accorded broad general authority to control its proceedings. (§ 350, subd. (a)(1).)" (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 758 (Ingrid E.).)
Even if we were to assume, without deciding, that father's right to testify at the hearing was not absolute and "the juvenile court had some pertinent discretion to act as it did," (Ingrid E., supra, 75 Cal.App.4th at p. 759), we conclude that on the facts here, the juvenile court abused its discretion. We disagree with the Department's contention that father's offer of proof was inadequate because it was "vague and limited to the father generally denying the allegations that he perpetrated domestic violence." Father's proffered testimony—that he had not abused mother and the altercations between him and mother were one sided—was strongly probative of whether, as alleged in the section 300 petition, father had engaged in "violent altercations" with mother and had "kicked the mother inflicting a bruise to the mother's leg." Moreover, "'[o]ral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the demeanor of witnesses. [Citation.] A witness's demeanor is "'part of the evidence'" and is "of considerable legal consequence."' (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1358 . . . .)" (In re M.M. (2015) 236 Cal.App.4th 955, 964 (M.M.).) We need not decide whether the court could have properly limited father's testimony in some manner, so as to avoid any "undue consumption of time" because, here, the court precluded father's testimony in its entirety. The court thus erred in denying father the right to testify at the jurisdictional hearing. B. Prejudice
We next consider whether father was prejudiced by the juvenile court's error, that is, whether "'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (M.M., supra, 236 Cal.App.4th at p. 963.) The Department argues that any error in the court's evidentiary ruling was harmless because "[e]ven if the court had permitted him to testify, it would not have impacted jurisdiction over the children. That is because a finding of jurisdiction relating to the conduct of one parent is good against the other." We agree that even if the court believed father's testimony, it would have exercised jurisdiction over the children. However, it is also reasonably probable that if the court believed his testimony, it would have amended the petition to strike the allegation of father's violence toward mother, entered a different dispositional case plan that did not require father to participate in a batterer intervention program, and may not have removed the children from father's custody. Therefore, the court's error was not harmless.
IV. DISPOSITION
The jurisdictional finding and dispositional order are reversed and the matter remanded for a new jurisdictional and dispositional hearing consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. I concur:
RUBIN, P. J. BAKER, J., Dissenting
We should decline to address the jurisdiction finding against M.B. (Father). It was undisputed in the juvenile court that jurisdiction over the children was proper based at least on the domestic violence allegations against the mother and Father's failure to protect the children from the substantial risk of serious physical harm from that violence—which means, under any scenario, Father was an "offending" parent. (In re I.J. (2013) 56 Cal.4th 766, 773; In re I.A. (2011) 201 Cal.App.4th 1484, 1492; compare In re Drake M. (2012) 211 Cal.App.4th 754, 763.) Insofar as Father actually challenges the disposition order the juvenile court made, I would affirm the order because the extensive opportunity the juvenile court gave Father's attorney to state what Father's testimony would have been, plus Father's conceded failure to protect the children, establishes any error in declining to permit him to testify was harmless.
BAKER, J.