Opinion
B308588
05-27-2021
In re J.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.T., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 20CCJP04472A, 20CCJP04472B) APPEAL from orders of the Superior Court of Los Angeles County, Kristen Byrdsong, Judge Pro Tempore. Affirmed. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
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T.T. (mother) appeals from the disposition order of the juvenile court concerning her son Justin T. (age 20 months) and the exit order terminating jurisdiction over her son J.G. (age 7). She contends the court erred in taking jurisdiction over the children, removing Justin T. from her custody, and ordering monitored visitation in the exit order. We affirm.
BACKGROUND
I. The history of domestic violence
This extended family is marred by domestic violence and referrals to the Department of Children and Family Services (DCFS). During mother and J.G.'s father's marriage, mother was aggressive and violent. Their arguments would escalate into physical confrontations. Mother broke pictures in front of J.G. causing his father to call the police and the child's pediatrician. Mother also smashed a watermelon with a knife and threatened J.G's father to "[b]e careful! It could be you!" Mother claimed J.G.'s father was verbally abusive and made false accusations against her. They divorced in 2016. The decree gave J.G.'s father physical custody of J.G. J.G.'s father obtained a one-year restraining order against mother to protect him and the child. The family law court eventually liberalized mother's visitation to unmonitored after she completed a 52-week domestic violence program for batterers. Three months after her divorce, mother moved in with Jorge V., Justin T.'s father.
While pregnant with Justin T., mother landed in the hospital. She claimed she fell but then stated that Jorge V. hurt her.
On December 9, 2018, Jorge V. failed to show up for a scheduled visit with his ex-girlfriend's child. When the ex-girlfriend picked Jorge V. up, she found scratches on his back and blood on his face. Jorge V. explained that mother used a knife on him.
On November 14, 2019, the police arrested mother because she hit Jorge V. on the head with a 14-inch long candleholder causing his eardrum to bleed. Mother also scratched Jorge V.'s face and hit him with a wooden dowel. She threw the dowel at Jorge V., hitting his arm and striking the car-seat handle where Justin T. was sitting. Mother denied hitting Jorge V. but the police issued him a protective order. Jorge V. told police that there were 10 other unreported domestic violence incidents.
In early 2020, mother made several calls to law enforcement. She enrolled in a 52-week domestic violence batterers' program in 2020 but only attended six sessions. A neighbor told police in May 2020 that domestic violence was a "reoccurring issue" with the family.
This dependency was triggered by a referral on August 5, 2020 after mother smacked Jorge V. on the face and called the police to remove him from the home. When the police arrived, mother accused Jorge V. of physical violence in front of baby Justin T. on August 2, 2020. She claimed Jorge V. pulled a bunch of her hair out and choked her until she felt dizzy; Jorge V. claimed mother bruised and scratched him. The police arrested Jorge V. Despite previous violent incidents in which one or the other parent was the aggressor, mother insisted Jorge V. was always the instigator. Both parents later minimized the severity of the August 2, 2020 events, maintaining they had engaged in violent sex. Mother declined to serve Jorge V. with a protective order. DCFS filed a petition under Welfare and Institutions Code section 300.
All further statutory references are to the Welfare and Institutions Code.
J.G. reported that Jorge V. was sometimes present during mother's visits with him and that he had witnessed mother and J.G.'s father argue. DCFS determined that J.G. was safe in his father's care where his needs were being met and where he wished to stay, but that Justin T. was not safe in the care of either of his parents based on a history of violence starting before Justin T.'s birth. II. The juvenile court's orders
The juvenile court sustained the petition as amended, finding true that mother and Jorge V. have a history of engaging in escalating verbal and physical altercations in Justin T.'s presence. The petition recited the events of August 5, 2020, August 2, 2020, November 14, 2019, and December 9, 2018. The court also found true the petition's allegations that mother has a history of engaging in violent altercations with J.G.'s father in J.G.'s presence. (§ 300, subds. (a) & (b)(1).) J.G.'s father is nonoffending.
The juvenile court removed Justin T. from his parents' custody, placed him under DCFS control, and granted the parents monitored visits. The court removed J.G. from mother's custody and placed him with his father. The court then terminated its jurisdiction over J.G. pending receipt of an exit order. The ensuing exit order gave both parents legal custody and J.G.'s father physical custody of J.G., with monitored visitation for mother. Mother appealed. Jorge V. is not a party to this appeal.
DISCUSSION
I. Substantial evidence supports the order taking jurisdiction over the children.
Subdivision (b)(1) of section 300 authorizes dependency jurisdiction over a child if 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 or inability of his or her parent . . . to adequately supervise or protect the child." We review the entire record and resolve all conflicts in favor of the juvenile court's findings to determine whether those findings are supported by substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.)
Mother contends the record lacks substantial evidence to support the jurisdiction order. We conclude that the evidence supports juvenile-court jurisdiction under section 300, subdivision (b)(1) and so we need not address the findings under subdivision (a). (In re A.F. (2016) 3 Cal.App.5th 283, 289.)
It is well-established law that domestic violence between parents, standing alone, puts children at risk of serious physical harm. " '[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.' " (In re E.B. (2010) 184 Cal.App.4th 568, 576, italics added; accord, In re M.W. (2015) 238 Cal.App.4th 1444, 1453-1454.)
When children have not suffered serious physical harm or illness as a result of domestic violence, there must be substantial evidence " ' "that at the time of the jurisdiction hearing the child[ren are] at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur)." ' " (In re J.O. (2009) 178 Cal.App.4th 139, 152.)
Mother has a long history of entrenched, fierce domestic violence with her partners, despite her retractions and denials. Unlike In re Daisy H. (2011) 192 Cal.App.4th 713, cited by mother, her violence is current, chronic, and longstanding and the danger to the children only ended when DCFS intervened and removed them from parental custody. Attendance in two domestic violence programs has not helped mother to cease fighting. The violence has occurred in front of both children: when mother threw pictures at J.G.'s father, when she was pregnant with Justin T., and once, mother threw a dowel that hit the car seat where Justin T. was sitting. The risk to the children being accidentally hit during such fighting is unmistakable and constitutes sufficient evidence that the children fall within the ambit of section 300, subdivision (b)(1).
Mother contends neither child is at current risk of future harm. With respect to J.G., she notes her last skirmish with his father occurred in 2016, she has been successfully co-parenting J.G. since, and the divorce decree gave her unmonitored visitation. As for Justin T., mother argues she has no intention of resuming her relationship with Jorge V. and there has been no violence since the August 5, 2020 referral.
However, " '[p]ast violent behavior in a relationship is "the best predictor of future violence" ' " (In re E.B., supra, 184 Cal.App.4th at p. 576), and the juvenile court may consider past events to determine whether the child is presently in need of its protection (In re A.F., supra, 3 Cal.App.5th at p. 289). The family law court gave mother unmonitored visitation with J.G. only after she completed a batterers' program. Clearly, that program did not work as mother's violence did not abate. To the contrary, her clashes with Jorge V. increased in frequency, putting Justin T. in direct danger at least twice and exposing J.G. to current risk because Jorge V. is sometimes present during mother's visits with that child. Mother claims she will not reunite with Jorge V., but she refused to obtain a restraining order against him. Mother's history of engaging in violence with any partner and her failure to cooperate to protect her children shows that she cannot control her violent outbursts and cannot be relied on to cease exposing her children to her violence. (Cf. In re Nathan E. (2021) 61 Cal.App.5th 114, 123-124 [rejecting parent's argument that completion of domestic violence program and cooperation vitiates substantial evidence]; In re T.V. (2013) 217 Cal.App.4th 126, 135 [lengthy history of domestic violence and repeated cycle of violence established that violence is likely to continue, placing child at substantial risk of harm].) The record shows a clear risk to both children that the violence will recur. II. The record amply supports the order removing Justin T. from mother's custody.
Section 361, subdivision (c)(1) provides that children shall not be taken from their parents' physical custody "unless the juvenile court finds clear and convincing evidence" that there "is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being" of the children and "there are no reasonable means by which the [children's] physical health can be protected without removing" them. The juvenile court's focus is on averting harm to the child. The parent need not be dangerous, and the child need not have been actually harmed before removal is appropriate. (In re T.V., supra, 217 Cal.App.4th at pp. 135-136.) Thus, "the court may consider the parent's past conduct as well as present circumstances." (In re Cole C. (2009) 174 Cal.App.4th 900, 917.)
When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before this court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
Mother contends the juvenile court lacked substantial evidence to remove Justin T. from her custody. However, she stopped putting Justin T. at risk of harm only because DCFS detained him. Her participation in more than one batterers' program, being restrained from contact with J.G. for a year, and the fact that she nearly harmed baby Justin T. with a dowel in one of her clashes with Jorge V. were not enough to cause mother to modify her behavior and belie her claims of remorse. She repeatedly denies that she is the aggressor and insists on blaming her partners for the fighting. Not only is denial a factor relevant in assessing whether people are likely to modify their behavior in the future without court supervision (In re A.F., supra, 3 Cal.App.5th at p. 293), but one "cannot correct a problem one fails to acknowledge" (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197). Mother's history of violence and her present failure to acknowledge or to modify her behavior justify the removal order to protect Justin T.
Mother argues Justin T. could be protected without removing him from her custody. But she rejected the offer by DCFS to create a safety plan to protect Justin T., and she declined to obtain a restraining order against Jorge V. Unannounced visits will not protect Jorge V. because mother's violence occurs too frequently. The whole record shows that it is highly probable that leaving Justin T. in mother's custody will put him at substantial risk of danger. III. The exit order
In appealing from the juvenile court's order terminating its jurisdiction over J.G., mother's sole contention is that the visitation portion of the exit order is not in J.G.'s best interest. She reasons that neither J.G. nor his father wanted monitored visits and seeking liberalization of the order in the family law court is a "hassle."
When the juvenile court terminates its dependency jurisdiction, it may issue an order for custody and visitation. (In re Chantal S. (1996) 13 Cal.4th 196, 202-203; § 362.4.) This order is enforceable in the family court (In re Chantal S., at p. 203) and remains in effect until modified or terminated by that court (In re Roger S. (1992) 4 Cal.App.4th 25, 30).
Juvenile "courts have broad powers and have the widest discretion to fashion a custody and visitation plan that is in the child's best interest." (Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1162.) The court abuses this discretion when it exceeds the bounds of reason. Regardless of whether we agree with the court's determination, we will uphold the ruling so long as it is reasonable. We only reverse when a court's determination is arbitrary, capricious, or patently absurd. (Ibid.)
We reject mother's argument that visit supervision is unjustified based on the lack of evidence supporting the jurisdiction findings. We have already concluded the record amply supports the order declaring J.G. a dependent of the juvenile court. The record fully supports the order for monitored visits regardless of what J.G.'s father and J.G. want. The programs designed to educate mother about domestic violence have not had an effect on her conduct as she persists in engaging in extremely violent acts with each of her partners with no apparent concern for the children's safety. And as explained, mother continues to minimize and deny the violence. In contrast, J.G. is safe and thriving in the care of his father, who is protective of the child. There is no abuse of discretion.
We dispense with mother's assertion that it is a hassle to return to the family law court to modify the visits' supervision requirement. The juvenile court's task is to consider the best interests of the child. (Heidi S. v. David H., supra, 1 Cal.App.5th at p. 1162.) The "purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently . . . being neglected . . . and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2.) While it may be tiresome to return to court, any "hassle" in going to court is far outweighed by the work that would have to be done to repair damage to the child by allowing mother unsupervised access to him prematurely. Convenience of a parent cannot be more important than protecting the safety and wellbeing of the child.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
EDMON, P. J.
LAVIN, J.