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In re J.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 29, 2020
No. B295430 (Cal. Ct. App. Jan. 29, 2020)

Opinion

B295430

01-29-2020

In re J.W. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.W., Defendant and Appellant.

Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jacklyn K. Louie, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CCJP07861) APPEAL from orders of the Superior Court of Los Angeles County. Kim L. Nguyen, Judge. Affirmed. Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court asserted jurisdiction over minors Josiah W. and Jayden W. and removed them from their parents' custody after finding the parents have substance abuse issues and a history of domestic violence. On appeal, the children's mother contends there is insufficient evidence supporting the jurisdictional findings and removal orders. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Referral and Investigation

M.W. (Mother) and Wesley A. (Father) have two children together: Josiah (born in 2014) and Jayden (born in 2018). In September 2017, the juvenile court asserted jurisdiction over Mother's other child, Jeremiah, after finding Mother's alcohol abuse rendered her temporarily unable to provide regular care to and supervise the child. The court did not assert jurisdiction over Josiah, who was living with Father at the time.

Over the next year, DCFS received numerous referrals related to Mother and Father, which it detailed in a detention report filed in this case. According to that report, DCFS received a referral on July 17, 2018, that Mother had an argument with Father while he was driving and Josiah was in the back seat. Father and Mother punched each other, the car struck a curb, and Father ran off with Josiah. DCFS noted the referral was "inconclusive" and the social worker would "continue to assess the family regarding concerns in [the referral] as [DCFS] recommends court intervention to ensure the safety of [the] children."

On December 3, 2018, Mother gave birth to Jayden. The same day, a social worker reported to DCFS that Mother had been aggressive with Father and threatened to harm him while he visited her in the hospital. The next day, another social worker reported that Mother was overheard on the telephone with Father, cussing and threatening to harm him.

During the ensuing investigation, Mother told DCFS that Father had been physically abusing her on a daily basis since 2014. Father would spit in her face, grab and twist her arm, yell at her, cuss her out, slap her, and hit her. The abuse continued while Mother was pregnant with Jayden. Josiah would try to intervene and tell Father to stop. When asked about the July 2018 car collision, Mother admitted fighting with Father in the car, but claimed Father provoked her.

According to Mother, the most recent incident of violence occurred sometime in late November 2018. Father spit in her face, threw her to the ground, and twisted her arm while Josiah watched. Mother declined to call law enforcement because she was worried it would affect her child dependency case.

Mother told DCFS she was no longer in a relationship with Father. She said she previously stayed with him despite the abuse because she had nowhere else to go.

In connection with Jeremiah's dependency case, Mother completed parenting classes and a substance abuse program. Between December 2017 and December 2018, she tested negative for drugs and alcohol on 11 occasions. She tested positive for marijuana in January 2018, and failed to appear for 14 tests. As of January 2019, Mother had attended five sessions of a domestic violence program.

Father told DCFS he is no longer involved with Mother, but he tries to help her given she is the mother of his children. Father denied physically abusing Mother. He admitted using marijuana, but denied smoking around the children or being under the influence of the drug while caring for them.

When asked about the July 2018 car collision, Father said he was driving Mother when she got upset, grabbed the steering wheel, and turned it. Father tried to control the steering wheel and hit the brakes, and the car struck a pole and bench. Josiah was in the back seat at the time.

Josiah reported to DCFS that Mother drinks beer "a little bit," and he saw her drinking the prior morning. He said Mother and Father fight when Father smokes drugs. Josiah saw Father hit Mother in the stomach and push her "a little bit." When Mother hit Father, Father pushed her down.

According to maternal great aunt, Mother frequently told her Father was abusive. The abuse seemed to get worse while Mother was pregnant. Maternal great aunt recalled Mother showing her bruises.

Dependency Proceedings

DCFS filed a petition asserting the children are persons described by Welfare and Institutions Code section 300, subdivisions (b) and (j). The operative amended petition alleged the children were at risk of serious physical harm due to Mother's alcohol abuse, Father's marijuana use, and Mother and Father's history of domestic violence "including, but not limited to, [F]ather spitting on [M]other's face, grabbing and twisting [M]other's arm, and throwing [M]other to the floor while [M]other was pregnant with the child Jayden. Further, on or about 07/16/2018, the child Josiah was exposed to a violent episode in which [M]other and [F]ather were driving and an argument ensued resulting in an accident while the child Josiah was in the back seat of the car." The petition further alleged Mother is unable and unwilling to provide the children ongoing care and supervision.

All future undesignated statutory references are to the Welfare and Institutions Code.

The court held a combined adjudication/disposition hearing on January 24, 2019. Father testified that he and Mother argue a lot, primarily over how to raise their children. He denied any physical altercations with Mother. Father said they were not currently in a relationship and had no plans to reunite.

Father admitted getting into a dispute with Mother while driving. According to Father, Mother grabbed the steering wheel and pulled it to the right. Father hit the brakes hard and tried to regain control of the car, which caused Josiah to bump his head.

Father admitted using marijuana for the past 10 years. He explained that he "smoke[s] a little bit of joints" over the course of the day. He denied using marijuana while caring for his children.

The court sustained the allegations related to Mother's alcohol abuse, Father's marijuana use, and the parents' history of domestic violence. It dismissed the counts related to Mother's inability and unwillingness to care for the children. The court declared the children dependents of the court, removed them from their parents' custody, and ordered reunification services.

Mother timely appealed.

DISCUSSION

I. Substantial Evidence Supports the Jurisdictional Findings Related to the Parents' History of Domestic Violence

Mother contends there is insufficient evidence to support the juvenile court's jurisdictional findings under section 300, subdivision (b), premised on Mother and Father's history of domestic violence. We disagree.

" 'In reviewing the jurisdictional findings . . . , we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings . . . of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.' " (In re R.T. (2017) 3 Cal.5th 622, 633.)

Under section 300, subdivision (b)(1), the juvenile court may exercise jurisdiction over a child when the 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 of his or her parent to "adequately supervise or protect the child." (§ 300, subd. (b)(1).) It is well established that exposure to domestic violence may serve as the basis of a jurisdictional finding under section 300, subdivision (b)(1). (See In re R.C. (2012) 210 Cal.App.4th 930, 941; In re Daisy H. (2011) 192 Cal.App.4th 713, 717; In re E.B. (2010) 184 Cal.App.4th 568, 576.)

Here, there is sufficient evidence to support jurisdiction under section 300, subdivision (b)(1), based on Mother and Father's history of domestic violence. Mother reported to DCFS that Father repeatedly physically abused her over the course of several years, which included hitting her, spitting in her face, twisting her arm, and throwing her to ground. Some of that abuse occurred while Mother was pregnant with Jayden, which directly placed the child at risk of serious injury. (See In re Daniel B. (2014) 231 Cal.App.4th 663, 674 [domestic violence exposed unborn child to risk of serious injury].) Mother also reported that Josiah was present during the violence and would try to intervene. Josiah confirmed this, telling DCFS he saw Father hit Mother and push her down. Mother's account of the violence was also corroborated by maternal great aunt, to whom Mother reported the abuse and showed the resulting bruises. In addition, the parents' statements to DCFS and testimony at the jurisdiction hearing established that Josiah was injured in a car collision that resulted from one of their arguments. From this evidence, the juvenile court could reasonably conclude the children's repeated exposure to domestic violence poses a serious risk to their safety, especially given their tender ages and inability to protect themselves. (See In re R.C., supra, 210 Cal.App.4th at pp. 941-942; In re T.V. (2013) 217 Cal.App.4th 126, 133 ["A parent's past conduct is a good predictor of future behavior."].)

Mother insists there was no risk to the children as of the jurisdiction hearing because, by that time, she had ended her relationship with Father. The juvenile court, however, could have reasonably concluded Mother and Father are likely to have continuing contact, regardless of their relationship status, given their apparent plan to share custody of the children.

There is also ample evidence demonstrating such contact will likely lead to future violence. Neither parent indicated they had addressed the underlying issues that led to past violence. Father, in fact, continued to deny that such violence occurred. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].) Although Mother acknowledged the abuse and had participated in a domestic violence program, there is nothing in the record showing she gained meaningful insights into the risks such violence poses to her children or how to adequately protect them in the future. Under these circumstances, the juvenile court could reasonably conclude it is likely the children will be exposed to future incidents of domestic violence between their parents, posing a serious and ongoing risk of physical harm.

There is no merit to Mother's contention that jurisdiction was improper because the detention report noted the referral regarding the car collision was "inconclusive." According to Mother, "evidence deemed inconclusive by DCFS's investigators cannot legally be considered substantial evidence." Mother, however, overlooks the overwhelming evidence, obtained subsequent to the detention report, that substantiated the referral and corresponding allegations in the petition. When DCFS asked Mother about the allegations, for example, she did not deny them and insisted Father provoked her. Further, Father admitted some of the allegations to DCFS and testified at the adjudication hearing that Josiah hit his head during the collision. Regardless of how DCFS characterized the referral in the detention report, these statements and testimony provided substantial evidence from which the juvenile court could conclude the allegations in the petition regarding the car collision are true.

We also reject Mother's contention that jurisdiction was improper because she was the victim, rather than the perpetrator, of the domestic violence. The juvenile court's task was not to determine which parent was responsible for the violence. Rather, it was to determine whether there is a substantial risk the children will suffer serious physical harm as a result of the failure or inability of their parent to adequately supervise or protect them. (§ 300, subd. (b)(1).) Here, the evidence shows the children were exposed to repeated incidents of domestic violence while under Mother's care. This constituted a failure to protect and provided a sufficient basis for the court to assert jurisdiction over the children.

Because there is substantial evidence supporting the jurisdictional findings related to Mother and Father's history of domestic violence, we need not consider Mother's challenges to the other jurisdictional findings. It is well established that when there are multiple grounds for the assertion that a child comes within the jurisdiction of the dependency court, the reviewing court may affirm the finding of jurisdiction if any one of the statutory bases for jurisdiction is supported by substantial evidence. In such cases, the reviewing court need not consider other challenged jurisdictional findings. (In re I.J. (2013) 56 Cal.4th 766, 773; In re J.C. (2014) 233 Cal.App.4th 1, 3-4; In re Francisco D. (2014) 230 Cal.App.4th 73, 80; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)

II. The Juvenile Court Did Not Err in Removing the Children from Mother's Custody

Mother contends the juvenile court erred in removing the children from her custody. Specifically, she asserts the removal orders are not supported by substantial evidence and the juvenile court failed to consider alternatives to removal. We disagree.

We reject DCFS's contention that Mother forfeited her arguments related to the removal orders by failing to object below. DCFS overlooks that Mother objected to the entire proposed case plan, which recommended foster care placement for the children and monitored visitation for Mother. Implicit in these recommendations was that the children be removed from Mother's custody. Even if Mother had not objected, challenges to the sufficiency of the evidence, as Mother makes here, are an exception to the general forfeiture rules. (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17.) Accordingly, we will consider the merits of her arguments.

A dependent child may properly be removed from a parent's custody when there is clear and convincing evidence of a substantial danger to the child's health, safety, and emotional well-being that cannot be eliminated by reasonable means short of removal. (§ 361, subd. (c)(1).) A removal order is proper when there is " 'proof of a parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. [Citation.] "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." [Citation.] The court may consider a parent's past conduct as well as present circumstances.' [Citation.]" (In re A.S. (2011) 202 Cal.App.4th 237, 247.)

"On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence. [Citation.]" (In re Ashly F. (2014) 225 Cal.App.4th 803, 809; In re Hailey T. (2012) 212 Cal.App.4th 139, 146-147.)

Here, there is substantial evidence supporting the juvenile court's removal orders. As discussed above, the evidence shows that, while under Mother's care, the children were exposed to multiple incidents of domestic violence, one of which resulted in a car collision and caused Josiah to hit his head. As of the disposition hearing, there was no indication that Mother and Father had resolved the issues that led to their history of violence. There was also no indication that Mother had gained meaningful insight into the risk domestic violence poses to her children or how to protect them from such violence in the future. From this, the juvenile court could have reasonably concluded removal from Mother's custody was necessary to protect the children's physical health, safety, and physical and emotional well-being. (See In re A.F. (2016) 3 Cal.App.5th 283, 293 ["In light of mother's failure to recognize the risks to which she was exposing the minor, there was no reason to believe the conditions would not persist should the minor remain in her home."].)

Mother's reliance on In re Basilio T. (1992) 4 Cal.App.4th 155, is misplaced. In that case, the court concluded removal was improper where the evidence showed only two incidents of domestic violence that may have occurred in the children's presence but did not result in physical harm to them. (Id. at pp. 170-171.) Here, the evidence of a present and future risk to Josiah and Jayden is significantly more compelling than in Basilio. As discussed above, Mother reported repeated incidents of domestic violence over the course of multiple years, many of which occurred in Josiah's presence and while Mother was pregnant with Jayden. Moreover, unlike in Basilio, one of those incidents actually resulted in an injury to a child. The frequency and severity of the domestic violence in this case meaningfully distinguishes it from Basilio.

We also reject Mother's contention that the removal order must be reversed because the juvenile court failed to consider reasonable alternative means to protect the children without removing them from her custody, as required by section 361, subdivision (c). Although the court did not discuss at the hearing any such alternative means, its minute orders note it found "there are no reasonable means by which the [children's] physical health can be protected, without removing the [children] from the home and the care, custody, and control of" their parents. In so finding, the court necessarily considered but rejected alternatives to removal. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, disapproved on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735.)

Moreover, Mother fails to demonstrate that any reasonable alternative means existed. While she posits DCFS could have provided housing assistance and conducted unannounced visits and strict supervision, she does not explain how those measures would have resolved the risks posed to the children by exposure to domestic violence. Any error in failing to discuss alternative means at the hearing, therefore, was not prejudicial and does not require reversal. (See In re Dakota J. (2015) 242 Cal.App.4th 619, 630 [a reviewing court may not reverse a removal order unless the error was prejudicial].)

DISPOSITION

The findings and orders are affirmed.

BIGELOW, P. J. We concur:

GRIMES, J.

WILEY, J.


Summaries of

In re J.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 29, 2020
No. B295430 (Cal. Ct. App. Jan. 29, 2020)
Case details for

In re J.W.

Case Details

Full title:In re J.W. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 29, 2020

Citations

No. B295430 (Cal. Ct. App. Jan. 29, 2020)