Opinion
B299337
02-27-2020
In re D.Q. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.M., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Christine S. Ton, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP02707) APPEAL from the jurisdictional and dispositional orders of the Superior Court of Los Angeles County, Pete R. Navarro, Commissioner. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Christine S. Ton, Deputy County Counsel, for Plaintiff and Respondent.
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Appellant N.M. (mother) appeals from the juvenile court's jurisdictional findings and dispositional orders concerning her three daughters Da.Q., Dy.Q., and De.Q. Mother contends the juvenile court's findings that mother inappropriately disciplined the children and engaged in violent and verbal altercations with their father, Mario Q. (father), were not supported by substantial evidence.
We hold that substantial evidence supports the finding that mother and father engaged in violent and verbal altercations that placed the children at risk, and the juvenile court properly asserted jurisdiction on that basis. We do not reach mother's challenge to the findings of inappropriate discipline.
Mother further contends the juvenile court erred by declaring the children dependents rather than placing the family under informal supervision or issuing family law exit orders. Mother forfeited this challenge by not requesting these alternatives below.
Accordingly, we affirm.
BACKGROUND
A. Proceedings in the juvenile court
In April 2019, respondent Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 seeking to detain minors Da.Q. (age 11), Dy.Q. (age 5), and De.Q. (age 3). At the time, mother and father were living separately and in the process of divorcing. The children alternated living with each parent weekly.
Undesignated statutory citations are to the Welfare and Institutions Code.
On May 1, 2019, the juvenile court ordered the children detained and released them to father, granting monitored visitation to mother. On May 30, 2019, the juvenile court sustained counts b-2, b-3, and b-4 in the petition, amended per the court's interlineations, and asserted jurisdiction over the children.
Count b-2, as amended, read, "On prior occasions, the children, [Da.Q.], [Dy.Q.], and [De.Q.]'s mother . . . inappropriately disciplined the child, [Dy.Q.] by striking the child with belts and shoes. Such discipline was excessive and caused the child unreasonable pain and suffering. Such discipline of the child by the mother endangers the child's physical health and safety and places the child and the child's siblings, [Da.Q.] and [De.Q] at risk of serious physical harm, damage, and physical abuse."
Count b-3, as amended, read similarly, alleging mother "inappropriately disciplined" De.Q. "by striking the child with shoes."
Count b-4, as amended, read, "the children, [Da.Q.], [Dy.Q.], and [De.Q.]'s mother . . . and father . . . have a history of engaging in violent and verbal altercations. In October 2018, the mother pushed the father and the parents wrestled in the presence of the child, [Da.Q.]. On prior occasions, the parents engaged in heated, near[-]violent, verbal altercations in the presence of the children and the child, [Da.Q.,] attempted to intervene. Such conduct by the parents endangers the children's physical health and safety and places the children at risk of serious physical harm, damage and danger."
The juvenile court struck the remaining counts in the petition, which are not at issue in this appeal.
The struck counts included allegations that father physically abused Da.Q. with a belt.
At the disposition hearing on July 11, 2019, the juvenile court placed the children in "Home of Parents," granting father "primary physical custody" on weekdays, with mother having weekend visitation.
Mother timely appealed. Father did not appeal. B. Evidence offered
We summarize below the evidence offered by the parties relevant to the sustained counts. We omit discussion of evidence not relevant to the issues on appeal.
1. Inappropriate Discipline
a. Detention report
Da.Q. reported that her mother would spank Dy.Q. on the bottom with her hand or shoe when Dy.Q. was " 'really bad.' " Da.Q. could not remember the last time mother had spanked Dy.Q.
Dy.Q. herself reported that mother hit her with a belt and hit De.Q. with a shoe. Da.Q. overheard Dy.Q. reporting this to the social worker and said it was not true. When the social worker reminded Da.Q. that she herself had stated that mother hit Dy.Q. with a shoe, Da.Q. stated that was only when Dy.Q. was " 'really, really bad.' " In a later conversation, Da.Q. denied having reported that her mother hit the children with a shoe.
Mother denied hitting the children. The social worker did not observe any marks or bruises on Da.Q. or De.Q. The detention report does not state whether Dy.Q. had any visible marks or bruises.
b. Jurisdiction/disposition report and last minute information
Mother stated she had threatened to hit Dy.Q. with a belt but had never done it. She said De.Q. was too young to discipline.
Da.Q. stated mother hit her with a belt when she was six. Since that time, mother had threatened the children with a belt but had not used it. The last time she threatened was in April 2019. Mother had not struck anyone with shoes. Da.Q. said she felt safe with both mother and father.
When a social worker asked Dy.Q. what happens when she misbehaves, Dy.Q. quickly said, " '[N]o one does hit me.' " She said she is given a timeout or sent to her room. She said she felt safe with mother and father.
Father said mother screams, spanks, and slaps Da.Q. and Dy.Q. He confirmed the allegations of mother's physical abuse of the children in the petition, although he said he was not usually present to witness it. When he was, he would tell mother to stop, and she would get angry and " 'toss things around.' " He said mother would be " 'really loud and harsh.' " When asked about the allegations concerning mother's disciplining De.Q., father said he had not seen that.
2. Violent and Verbal Altercations
a. Detention report and addendum
Mother claimed she had experienced domestic violence with father. Father denied this, saying mother had made these claims in the past, but that they were not true.
Mother and father had prior child welfare history arising from an incident on October 17, 2018. The referring party reported that, while father was dropping the two younger girls off at mother's home, mother and father argued at the front door and father pushed mother, causing her to fall into some bushes. Da.Q. was present and witnessed the incident, but the younger girls were inside at that point and did not see it. Mother contacted law enforcement and got an emergency protection order. Mother told the referring party that there had been multiple prior incidents of domestic violence by father, the most recent " 'a couple of months ago.' "
DCFS investigated the referral and spoke with Da.Q. Da.Q. reported that three to four years before the October 2018 incident, mother and father fought a lot. Father would be angry and would appear as if he was going to hit mother but would stop because Da.Q. was there. Da.Q. would try to stop them from fighting and " 'things got worse between [mother and father],' " and they would yell at one another. Da.Q. said she had never seen mother and father hit one another.
Regarding the October 2018 incident, Da.Q. stated that mother and father started fighting and yelling at each other when father came to drop off the two younger girls. "[F]ather got close to mother and mother pushed him back because father was getting mad." Da.Q. said mother only pushed father "lightly so that he can back away." Father then pushed mother " 'really hard' " and mother fell into a bush. Mother called law enforcement and father "ran away."
A later report in the instant proceeding indicated the disposition of the October 2018 incident was "Inconclusive." (Boldface omitted.)
b. Jurisdiction/disposition report and last minute information
Mother said she and father were in a relationship from 2001 to 2016. They were in the process of divorcing because of verbal abuse and some physical abuse towards the end of the relationship. Mother said "father had pushed her a few times and also choked her." They had no plans to reconcile.
Regarding the October 2018 incident, mother said she and father were arguing and he pushed her into a bush. Da.Q. " 'was inside keeping the younger girls in' " and did not intervene, but she could see what was happening through the open front door. Da.Q. helped mother up and asked if she was okay. Mother obtained a temporary restraining order against father but he "disappeared for roughly 3 to 4 months."
Mother said the children were not in danger when she and father argued, " '[b]ut my main concern is that he is verbally abusive and aggressive. I would always ask the girls to leave the room when we argue.' "
Da.Q., describing the October 2018 incident, stated that mother and father were arguing, mother pushed father lightly, and father pushed her hard and she fell into a bush. Da.Q. stated the fights usually consisted of yelling, and this was the only time she had seen mother and father "hit" one another.
Dy.Q. said mother and father fought when they were together. She said father had pushed mother at mother's house but denied any other physical fights.
Father reported that he and mother were divorcing and had no plans to reconcile. He said there had been domestic violence. Father reported that "mother has always been 'outspoken' and would 'jump from 0 to 100.' " When they fought, father would try to stop the fight but mother would "keep going." Father reported that mother had slapped and pushed him. Father stated that mother was " 'too reactive to emotions,' " and described her as "very aggressive." Father said if mother "does not like something" she "has a 'quick change in personality.' "
Father reported that he had " 'violent verbal altercations' " with mother, and Da.Q. would tell them " 'to stop and relax.' " Father " 'would tell [Da.Q.] it wasn't her fault and apologize.' " Father denied doing anything violent that would endanger the children.
Regarding the October 2018 incident, father denied pushing mother. He stated that mother had pushed and slapped him, and when he held up his arm to stop her, she stepped into a bush and fell. Father said Da.Q. was inside and did not see what happened.
c. Father's testimony
Father testified to the following at the adjudication hearing:
The October 2018 incident began when mother sent father messages accusing him of "wrongdoing" regarding the girls. He took the girls to mother's home. Mother answered the door and flew into a rage. She pushed father away from the door and slapped him. He held up his arms to hold her back and told her to stop and relax. She stepped back into a bush and fell over. He was walking away to leave as she fell, but he turned back to help her up. He denied purposefully pushing her.
The children were inside mother's home at the time. When asked if the children could see the fight through the door, father said yes, because "I went over to the door to tell [Da.Q.] to watch what was happening because I wasn't doing anything wrong." He did this after mother had pushed and slapped him, but before she fell into the bush.
Father was surprised that Da.Q. had reported that he had pushed mother hard, because she would not have been able to see from where she was. She did not see mother slap father. Father believed mother had told Da.Q. after the fact that father had pushed her.
When asked about his earlier statement that mother would "jump from zero to 100," father said during "a regular discussion" mother "would just bust out with anger and start yelling at me and screaming, and I'd have to dismiss the children from the same room because I didn't want them to continue hearing it." When asked if mother would "physically make contact with" father "when she went from zero to a hundred," father said, "Often. In the car. At home." Father said mother would push him, "slap" him "or throw her hand in" his face and had thrown his phone out of the car "once or twice." He estimated this had happened in "maybe 2014," at which point the juvenile court asked him to "focus on more recent events."
Father said because he and mother had separated, they had not had this "kind of contact" since "before 2016," except for the October 2018 incident in which she physically assaulted him.
STANDARD OF REVIEW
"When an appellate court reviews the jurisdictional or dispositional findings of the juvenile court, it looks to see if substantial evidence, whether contradicted or uncontradicted, supports the findings. [Citations.] The appellate court must review the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. [Citation.] Substantial evidence 'means evidence that is "reasonable, credible and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case." ' " (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
DISCUSSION
I. The Juvenile Court's Assertion Of Jurisdiction Is Supported By Substantial Evidence
Mother contends that the juvenile court's findings sustaining counts b-2, b-3, and b-4 are not supported by substantial evidence. We hold substantial evidence supports the juvenile court's findings sustaining count b-4 regarding the altercations between mother and father. "When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Accordingly, we do not address mother's challenges to counts b-2 and b-3.
"Jurisdiction under section 300, subdivision (b) requires proof that the child suffered or is at substantial risk of suffering 'serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.' " (In re Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.))
As we stated in In re E.B. (2010) 184 Cal.App.4th 568 (E.B.) " '[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.' " (Id. at p. 576.) We have held, however, that "[p]hysical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b) . . . only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm." (Daisy H., supra, 192 Cal.App.4th at p. 717.)
Here, the evidence taken in the light most favorable to the juvenile court's findings showed that mother and father engaged in a violent altercation just outside of mother's house, with the parents pushing and wrestling each other in view of Da.Q. Father involved Da.Q. in the fight by calling her over to witness it. Da.Q. became further involved when she went over to help her mother up after mother fell in the bush. The juvenile court reasonably could conclude that Da.Q.'s involvement placed her at risk of serious physical harm, and mother and father did not adequately protect Da.Q. from that risk.
This evidence was consistent with evidence of earlier altercations between mother and father in which Da.Q. intervened or the other children were present. Both parents described the other as aggressive, and Da.Q. stated she believed the only reason father did not strike mother during those fights is because Da.Q. was there.
Given the parents' inability to protect Da.Q. from involvement in their disputes, it was reasonable for the juvenile court to conclude the younger children were at risk as well. (See In re John M. (2013) 217 Cal.App.4th 410, 419 (John M.) [parents' history of domestic violence supported finding of risk of harm to child although child had yet to be harmed], abrogated on other grounds by In re R.T. (2017) 3 Cal.5th 622.)
Mother argues that one incident of pushing and wrestling, and long-past incidents of verbal altercations, are not sufficient to support jurisdiction, "especially when [the] parents lived separate and distinct lives." Mother analogizes to Daisy H., in which we reversed jurisdictional findings based on domestic violence when the incidents occurred at least two years before DCFS filed its section 300 petition, there was no evidence the children had witnessed or been harmed by the violence, and there was no evidence of continuing violence between the parents who since had separated. (Daisy H., supra, 192 Cal.App.4th at p. 717.)
Mother also cites In re Jesus M. (2015) 235 Cal.App.4th 104, which similarly reversed jurisdictional findings based on domestic violence when "the parents had long been separated, the two incidents Mother could recall had occurred more than three years earlier, and there was no evidence of current violent behavior." (Id. at p. 113.)
These cases are distinguishable. The October 2018 incident occurred only six months before DCFS filed its petition, not two or three years. Da.Q. was exposed to the violence directly and in fact became involved in the altercation. The altercation happened well after the parents had separated, thus establishing that separation had not ameliorated the risk of further violence.
Moreover, " '[t]he nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient, in a particular case, to establish current risk depending upon present circumstances.' " (John M., supra, 217 Cal.App.4th at p. 419.) Those present circumstances include evidence, or lack thereof, " 'of the parent's current understanding of and attitude toward the past conduct that endangered a child, . . . or other steps taken, by the parent to address the problematic conduct in the interim . . . that would help a parent avoid a recurrence of such an incident.' " (Id. at pp. 418-419.)
Here, the evidence indicated that mother and father blamed each other for the October 2018 incident, which indicates a lack of understanding of the conduct that would help mother and father avoid repeating it. Thus, the juvenile court's jurisdictional findings under count b-4, largely based on the October 2018 incident, were supported by substantial evidence.
II. Mother Forfeited Her Challenge To The Dispositional Orders
Mother contends the juvenile court "erred in refusing to order informal supervision pursuant to sections 360, subdivision (b) and 301, or to terminate dependency jurisdiction and issue family law exit orders under [section] 362.4."
The record does not indicate that mother requested any of these orders in the juvenile court, nor did she object to the dispositional orders. Her argument therefore is forfeited. (In re A.B. (2014) 225 Cal.App.4th 1358, 1366.)
DISPOSITION
The findings and orders are affirmed.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.