Opinion
B297935
02-24-2020
In re N.R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.R., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Jessica S. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP01753) APPEAL from an order of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge. Affirmed. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Rosemary R. (mother) appeals from the juvenile court's jurisdictional findings regarding her children, Natalie R. (born September 2005), Katelyn R. (born September 2008), and Liam R. (born August 2016). She argues substantial evidence does not support the court's Welfare and Institutions Code section 300, subdivision (a) and (b)(1) findings that her failure to protect her children from Eric R.'s (father) domestic violence, alcohol abuse, physical abuse of the children, and a firearm in the family home created a substantial risk of future harm to the children. We reject mother's contentions and affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
Father is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the record in the light most favorable to the juvenile court's decision, drawing all reasonable inferences from the facts in support of the court's ruling. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
On January 31, 2019, the Los Angeles Police Department (LAPD) responded to a 911 call for domestic violence. The responding officers observed a red scratch on the right side of mother's neck and she complained of pain to her mouth. The officers also discovered a rifle that father built, stored on top of a bookshelf in the living room in a secret compartment. The children were all inside the home during the incident. Natalie reported to the responding officers that father was physically and verbally abusive to her, Katelyn, and mother whenever he drank; father had slapped Natalie and Katelyn on their face; and Natalie was afraid of father. Natalie further stated, from the time she was born, there had been nothing but abuse and she observed father striking mother approximately 30 times. The officers arrested father, took custody of the rifle, issued an emergency protective order for mother, and called in a referral to the Department of Children and Family Services (the Department).
The investigating social worker interviewed Katelyn and Natalie. Katelyn reported when father drank, he would yell at mother and her parents would fight, sometimes physically. Katelyn stated that during the January 31, 2019 incident, father cursed at the family, was drunk, and said to mother, "'I'm going to kill you all.'" They eventually locked father out of the home and Natalie called 911. Katelyn further reported father had been drinking alcohol ever since she could remember, and the fighting got worse when she was about six years old. The social worker reported Katelyn also stated father would hit the children whenever they tried to protect mother, and would "yell or smack them on the face with his hand."
The social worker reported Natalie stated "it was a good thing" father was out of the home, and mother was doing better. Natalie called 911 after father yelled at her and Katelyn, stating "'I'm gonna [sic] kill you,'" and slapped her for defending mother during mother and father's argument. The social worker also reported that Natalie further stated father "drinks excessively," "would get physical" with her and her mother, and mother told her not to speak with father when he was drunk.
Mother also spoke with the Department social worker regarding the January 31, 2019 incident. The social worker reported Mother explained she and father "were yelling at each other," father "slapped her on the left cheek," and she "tried to hit father with his cap." The social worker also reported that mother stated father "had about 10 beers that night and was close to being drunk," and that "father drinks almost daily." Mother also reported father had hit her on three other occasions, and law enforcement responded to the home twice. At the time of the interview, mother knew father for 16 years, and the social worker reported mother stated "father started drinking the last 10 years," but "does not get physical with the children when he is drinking."
Mother stated she did not feel endangered, father voluntarily left the home after the incident, and he was not allowed to return home. She did not try to extend her emergency restraining order against father.
The Petition
The Department filed a dependency petition on the children's behalf, alleging they were at risk of serious physical harm as a result of: (1) the parents' history of engaging in violent altercations in the presence of the children (counts a-1 and b-2); and (2) father's past physical abuse of Natalie and Katelyn by slapping the children's faces (counts a-2 a, b-3 and j). The petition further alleged (1) father had a history of substance abuse, was a current abuser of alcohol, and mother failed to protect the children despite knowing about father's substance abuse (count b-1); and (2) mother and father created a detrimental and endangering home environment by leaving an unsecured rifle and ammunition in the home (count b-4). At the detention hearing, the juvenile court ordered the children detained from father's custody and released to mother under the supervision of the Department, and granted father monitored visitation.
Jurisdiction Report
The children remained released to mother's custody. Mother and the children resided in a two-bedroom home with the paternal grandmother, the paternal uncle, and the maternal grandmother. The investigating social worker interviewed Natalie and Katelyn, both of whom were very protective of their parents and recanted some of their prior statements. Natalie stated the parents got along well with each other when father was sober, and only got in arguments once or twice. She acknowledged, however, that she witnessed father hitting mother, and mother hit father back in self-defense. She stated father slapped her once, but denied being afraid of father.
Katelyn also stated the parents got along well. She said when her father drank alcohol he yelled more, but did not physically fight more. Katelyn denied the parents used physical discipline, and denied that father ever physically hurt her.
Mother reported, during her interview, that the domestic violence started approximately five to six months after the birth of Natalie, but that father has "'only slapped [her], that's all he's ever done.'" Mother did not feel any threat that father would return to the family home.
Jurisdictional and Dispositional Hearing
Neither father nor mother were present at the May 7, 2019 combined jurisdictional and dispositional hearing, but they were represented by their respective counsel. The detention and jurisdiction reports were admitted into evidence. The juvenile court sustained the section 300 petition as pled under subdivisions (a) and (b)(1), and declared the children "dependents of the court under Welfare and Institutions Code [section] 300 [subdivisions (a) and (b)]." It ordered the children should remain in mother's physical custody. The juvenile court further found there was a substantial danger if the children were returned to father based on father being "in denial of the [domestic violence]" and his "alcohol problem," and found "mother is not able to protect." Thus, the children were removed from father's physical custody.
The juvenile court dismissed count j as duplicative of count b-3.
Mother timely appealed.
DISCUSSION
A. Applicable Law
Mother contends the jurisdictional findings against her under section 300, subdivisions (a) and (b)(1) are not supported by substantial evidence. Subdivision (a) provides for jurisdiction when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian . . . . [A] court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent . . . that indicate the child is at risk of serious physical harm." (§ 300, subd. (a).)
Section 300, subdivision (b)(1) provides for jurisdiction when "[t]he 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 or inability of his or her parent or guardian to adequately supervise or protect the child . . . ."
We review the jurisdictional findings for substantial evidence. (In re Jonathan B. (2015) 235 Cal.App.4th 115, 119.) Under this standard, we are to determine whether there is substantial, credible evidence that supports the decision of the juvenile court. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318-1319.) All conflicts in the evidence are resolved in favor of the court's decision. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379.)
B. Justiciability
Before reaching the merits, we first address justiciability because jurisdiction with respect to the allegations involving father has not been challenged, and "[d]ependency jurisdiction attaches to a child, not to his or her parent." (In re D.M. (2015) 242 Cal.App.4th 634, 638.)
"Because the juvenile court assumes jurisdiction of the child, not the parents, jurisdiction may exist based on the conduct of one parent only. In those situations an appellate court need not consider jurisdictional findings based on the other parent's conduct. [Citation.] Nevertheless, we may exercise our discretion to reach the merits of the other parent's jurisdictional challenge in three situations: (1) the jurisdictional finding serves as the basis for dispositional orders that are also challenged on appeal; (2) the findings could be prejudicial to the appellant or could impact the current or any future dependency proceedings; and (3) the finding could have consequences for the appellant beyond jurisdiction." (In re J.C. (2014) 233 Cal.App.4th 1, 3-4, italics in original; see also In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.) Because the finding that mother failed to protect her children may be used against mother in future dependency proceedings, we reach the merits of mother's appeal. (See In re Jonathan B., supra, 235 Cal.App.4th at p. 119 [reaching merits of appeal where "the finding that mother intentionally hurt and neglected her children may be used against mother in future dependency proceedings . . . ."].)
C. The Jurisdictional Findings Against Mother Are Supported by Substantial Evidence
Turning to the merits, we conclude substantial evidence supports the jurisdictional findings against mother under subdivisions (a) and (b)(1) of section 300.
1. Counts a-1 and a-2
Mother contends the juvenile court erred in sustaining the petition with respect to counts a-1 and a-2. Although she concedes there was evidence of domestic violence, mother contends a substantial risk of serious future injury under section 300, subdivision (a) can only be found where the child had been previously harmed. She argues, however, the children suffered no physical harm during the January 31, 2019 incident, and the domestic violence was never directed towards the children. We disagree with this argument for two reasons.
First, a child need not have been harmed to be at risk of physical harm within the meaning of section 300, subdivision (a). (See In re Marquis H. (2013) 212 Cal.App.4th 718, 726 [section 300, subdivision (a) does not prohibit "the exercise of jurisdiction in situations other than those specified in the second sentence of the statute.[] In our view, the permissive language of the second sentence merely sets forth scenarios in which the statute may apply."].) Second, even if a child had to have been harmed to be at risk of physical harm within the meaning of section 300, subdivision (a), there is evidence in the record from which the trial court could conclude the domestic violence was, on occasion, directed towards the children. For example, during the initial interview of Natalie and Katelyn after the January 31, 2019 incident, the social worker reported Natalie stated father "drinks excessively and he would get physical with her and her mother." And, during a follow up interview, although Natalie claimed she was not afraid of her father, and denied that he slapped her consistently, she stated father slapped her once.
The second sentence of section 300, subdivision (a) states: "For purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm." (§ 300, subd. (a).)
Moreover, it is well established that exposure of children to domestic violence is harmful in and of itself, and places the children at risk of serious physical harm: "[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk." (In re Heather A. (1996) 52 Cal.App.4th 183, 194, emphasis in original.) Children can be "put in a position of physical danger from [domestic] violence, since, 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 . . . ." (Ibid.)
We further reject mother's contention that substantial evidence did not support the juvenile court's finding that mother failed to protect the children from father's physical abuse. Mother admitted the domestic violence began five to six months after Natalie was born. As noted above, Katelyn reported father would hit the children whenever they tried to protect mother. As also noted above, Natalie reported she called 911 on January 31, 2019 (not mother) after father yelled at her and Katelyn, stating "'I'm gonna [sic] kill you,'" and slapped her for defending mother during mother and father's argument. The social worker also reported Natalie stated father "drinks excessively and he would get physical with her and her mother." Mother minimized the violence by stating "[father] only slapped me, that's all he's ever done." She also explained she did not attempt to extend the restraining order against father after the January 31, 2019 incident because she did not feel any threat that he would return to the home. She denied father ever physically abused the children.
Although the record contains conflicting statements regarding the extent of father's physical abuse of the children, it is not our role to reweigh the evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.) We conclude substantial evidence supports the juvenile court's finding that mother failed to protect the children from father's abuse.
2. Counts b-1, b-2, b-3, and b-4
Mother also challenges the juvenile court's jurisdictional findings under section 300, subdivision (b)(1) that she failed to protect the children from the parents' violent altercations (count b-2), father's physical abuse (count b-3), father's substance abuse (count b-1), and the endangering home environment (count b-4). Because counts b-2 and b-3 contain the identical allegations as those in a-1 and a-2, we conclude substantial evidence supports the juvenile court's findings with respect to counts b-2 and b-3 for the same reasons as discussed above in section C1, supra.
With respect to count b-1 (mother's failure to protect children from father's substance abuse), mother contends she was aware father had an alcohol problem, but she took proactive steps to protect the children. We are unpersuaded.
Mother contends she did not expose the children to any fighting between her and father when he had been drinking. But the record indicates otherwise. For example, when the responding police officers interviewed the children after the January 31, 2019 incident, Natalie said father was physically and verbally abusive to her, Katelyn, and mother whenever he drank, he had slapped Natalie and Katelyn on their face, and she was afraid of him. Although mother instructed the children not to speak to father when he was drinking, this directive was evidently not sufficient to protect the children from father's abuse.
When the children were interviewed by the investigating social worker before the jurisdictional hearing, they recanted some of their prior statements. Natalie stated father only slapped her once, and Katelyn denied father ever physically hurt her. It is not our role, however, to reweigh conflicting evidence. (In re M.R. (2017) 8 Cal.App.5th 101, 108 [on appeal, the court does "not consider whether there is evidence from which the juvenile court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw."].)
Finally, mother contends substantial evidence does not support the finding that mother failed to protect the children from father's unsecured rifle and ammunition in the family home, as alleged in count b-4. She argues the rifle was not loaded, and the children did not have access to it. As discussed above, Natalie and Katelyn reported to the investigating social worker that on January 31, 2019, father told the family he was going to kill them. Mother knew about the rifle, but claimed "'[i]t was just a hobby he was building and creating. I don't know what he was building because I am not familiar with weapons.'" We conclude father's threat coupled with having the means to follow through with the threat, and mother's minimization of the potential danger of the rifle, constitutes substantial evidence that mother failed to protect the children.
DISPOSITION
The jurisdictional findings are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. WE CONCUR:
MANELLA, P. J.
WILLHITE, J.