Opinion
B228382
10-26-2011
In re JOANA v. , et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ALVARO v. , Defendant and Appellant.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. Lori Siegel, under appointment by the Court of Appeal, for Respondents Minors.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK80936)
APPEAL from a judgment of the Superior Court of Los Angeles County, Marilyn Mordetzky, Referee. Affirmed.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
Lori Siegel, under appointment by the Court of Appeal, for Respondents Minors.
Alvaro V. (Father) appeals from the juvenile court's order placing his children, respondents Joana V. and Angel V., with their mother, Gloria V. (Mother), after they were adjudged dependents of the juvenile court under Welfare and Institutions Code section 300. The Los Angeles County Department of Children and Family Services (DCFS) opposed the placement of the children with Mother, but takes no position on appeal and has not filed a brief. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father are the parents of Joana, born in November 2001, and Angel, born in February 2004. Bryan R., Mother's child by a different father, is not a subject of or party to this appeal. Mother and Father were in the process of a divorce during these proceedings, and Mother was engaged to Jesus L.
On January 29, 2010, a referral was made to DCFS, alleging that Mother physically abused Bryan. The family had four prior referrals to DCFS, from 2003 to 2008. When DCFS investigated in January 2010, the children appeared physically healthy, with no marks or bruises. Mother told the investigator that she was in the process of a divorce, but she had not served Father because she was afraid of how he would react. She said that Father was violent and had threatened to kill her and take the children.
Bryan denied the allegations of abuse by Mother, but he said that Father was violent and punched holes in the walls. He said that Father had a serrated knife and used a B.B. gun to shoot holes in the walls. Angel also denied any abuse by Mother and said that Father punched holes in the walls, pulled his hair, and had a gun and a knife. Joana said Father hit her with a belt, punched holes in the wall, and did not have enough food at his house for them. She denied any abuse by Mother or Jesus L. Jesus L. was supporting Mother and the children. In February 2010, Mother relocated to a confidential address.
Father denied being abusive to Mother and said she was jealous of his girlfriend. He accused her of leaving the children unattended overnight on one occasion, an allegation Mother denied.
At a hearing held on February 18, 2010, the court found Father was the presumed father of Joana and Angel. The court found a prima facie case was established for detaining the children and showing that the children are persons described by section 300, subdivisions (a), (b), (g), and (j). The court found that a substantial danger existed to the children's physical health, that continuance in Father's home was contrary to their welfare, and that there were no reasonable means to protect them without removing them from Father's physical custody. The court released the children to Mother on the condition that she remain in a DCFS-approved home and ordered DCFS to provide Mother and Father with referrals to individual counseling, domestic violence education, and parent training.
On March 3, 2010, the court denied Mother's request for a temporary restraining order but issued an order for Mother and Father to stay away from each other.
On March 22, 2010, DCFS filed a jurisdiction/disposition report, and the court set the matter for an adjudication and disposition. According to Bryan's statements in the report, Father used to hit the children with a belt when they stayed with him. The children said that Mother punished them by making them stand in a corner but did not hit them. They stated that Father hit Mother and punched holes in the walls. Father denied hitting the children and stated that Bryan told him Mother hit them with belts and hangers.
Mother said Father broke things, hit her, and on one occasion choked her until she was gasping for air. She never reported any domestic violence because she was undocumented, and Father threatened to keep the children and have her deported. Mother said she had left Bryan's father because of domestic violence. She said there was no domestic violence in her relationship with Jesus L., and the children felt safe with him.
The court ordered DCFS to interview witnesses regarding the allegations in the petition and prepare a supplemental report. Three of Mother's friends stated that they often saw signs of abuse on Mother, but that she was afraid to report the abuse. Father's nieces, sister, and mother said that they never saw any marks or bruises on Mother and that Mother, not Father, was the one who abused the children.
A hearing was scheduled for June 3, 2010. On June 2, 2010, DCFS informed the court that the children were detained from Mother on June 1 because she had attempted suicide and wanted to flee to Mexico, saying she was "[t]ired of DCFS being in her life." According to the detention report, after Jesus L. broke off his engagement with Mother, Mother took the children to Father and asked him to take all of them to Mexico, in violation of the order for her to stay away from Father. Father refused to take them.
On May 29, 2010, Mother overdosed on medication and was taken to the hospital. After she returned from the hospital, she told Jesus L. she wanted to take the children to Mexico, but he would not let her leave the house with them. On June 1, Mother was stopped while driving Jesus L.'s car. She said she was taking the children to school, although she did not have a valid driver's license. The investigator concluded that Mother was "currently emotionally unstable and unable to provide proper care for the children. Mother has been somewhat inconsistent in her testimony which may indicate a degree of deception or inability to recall incidents or events due to current level of functioning. It appears [M]other is reactive to situations and demonstrates an inability to problem solve effectively." DCFS recommended a mental health assessment. DCFS filed an ex parte application under section 385, seeking to remove the children from Mother's custody. The court ordered the children to remain detained.
On June 7, 2010, DCFS filed an amended petition under section 300, adding the recent allegations regarding Mother's behavior. The petition alleged two counts of failure to protect and two counts of abuse of sibling by Mother. The counts were based on Mother's emotional condition and attempted suicide after Jesus L. broke off their engagement, and on her violation of the order to stay away from Father, driving the children without a valid driver's license, and threat to leave the jurisdiction.
The petition alleged three counts of serious physical harm by Father (§ 300, subd. (a)), eight counts of failure to protect (§ 300, subd. (b)), two counts of no provision for support by Father and Bryan's father (§ 300, subd. (g)), and three counts of abuse of sibling (§ 300, subd. (j)).
The adjudication hearing commenced on July 22, 2010, and was continued to August 20, 2010. Mother presented evidence indicating she had completed a 15-week parenting course, attended 17 sessions on domestic violence, and was attending individual counseling.
Bryan testified in chambers at the August 20 hearing. He testified that Father had hit all three children and that he had seen Father hit the walls and fight with Mother. He had seen marks on Mother's neck from Father choking her and bruises on her arms. He said that Mother never hit them.
Joana testified in chambers at an August 26, 2010 hearing. She testified that Father never hit any of them, but she had seen him hit Mother. She stated that Father yelled at them when they got in trouble and threatened to put them in a closet, but he never did. She said that she missed Mother and Father. She also said that her grandmother had told her not to lie and that Bryan was lying.
Angel also testified in chambers at the August 26 hearing. He testified that Father never hit any of them, but he had seen Father punch a door and wall while fighting with Mother. He said Father put them in timeout when they got in trouble.
Father testified at a September 30, 2010 hearing that he never hit the children or threatened them with a belt or hanger. He punished them by grounding them or putting them in timeout. He stated that he had never had any physical altercations with Mother or put holes in walls or doors. Father stated that he had completed six weeks each of domestic violence classes and anger management classes and 55 parenting classes, although this was not confirmed by proof of enrollment.
In a supplemental report dated September 30, 2010, Father stated that Mother had hit and physically abused the children on several occasions. The court stated that it would not give any weight to those statements, but DCFS indicated it would continue to investigate the allegations.
The September 30 supplemental report stated that Mother was attending two parenting courses, individual counseling, and had completed 23 domestic violence sessions. A letter from her psychiatrist stated that she was evaluated on September 23, 2010, "and found to be completely mentally stable. She is not a danger to herself or others and is fully capable of taking care of her children." Her treatment plan included ongoing counseling with her therapist and medication for anxiety and insomnia as needed. The psychiatrist recommended that her children be returned to her and indicated that she had another appointment in eight weeks.
The court found all three children to be credible and found that they had suffered physical abuse from Father. The court acknowledged that Mother had stayed in an abusive relationship and that she attempted suicide after Jesus L. broke off their engagement. However, based on the court's observations of Mother over the previous months, the court concluded that Mother had learned from those situations and that there were services that could ensure the children's safety if they resided with her.
The court sustained the allegations of the amended petition and declared the children dependents of the court under section 300, subdivisions (a), (b), and (g). The court ordered the children removed from Father and released to Mother over the objection of DCFS. The court ordered family maintenance and family preservation services for Mother and ordered her to attend DCFS-approved domestic violence counseling and individual counseling to address codependency issues. Father was ordered to attend a DCFS-approved program of domestic violence, parent education, anger management, and individual counseling. Father filed a timely notice of appeal, asserting that he was appealing from the court's jurisdictional findings. However, he has not challenged the jurisdictional findings on appeal and argues only that the court abused its discretion by releasing the children to Mother.
The court dismissed the abuse of sibling allegations under section 300, subdivision (j).
DISCUSSION
Father contends that the court abused its discretion by releasing the children to Mother because the evidence established that she was emotionally unstable and posed a serious risk of harm to the children. We hold that substantial evidence supports the court's decision.
The juvenile court's dispositional findings are reviewed for substantial evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 574.) "'The term "substantial evidence" means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. [Citation.]' [Citation.]" (Id. at pp. 574-575.) "When a child is adjudicated dependent, the dependency court has broad discretion to make any reasonable orders for the care and support of the child." (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1087, fn. 12.) "'In dependency proceedings, a trial court's determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]' [Citation.]" (In re E.B., supra, 184 Cal.App.4th at p. 575.)
Father's argument is based on the incidents in which Mother overdosed on medication, attempted to flee with the children to Mexico, and violated the order to stay away from Father after Jesus L. broke up with her. The court was fully aware of those incidents and acknowledged Mother's conduct when it decided to release the children to Mother. Nonetheless, the court found that the children would be safe if released to her, based on the court's own observations of Mother for several months and the existence of services to assist her.
The September 30, 2010 supplemental report states that Mother had complied with the case plan by attending two parenting courses and domestic violence sessions, participating in individual counseling, seeing a psychiatrist, and taking medication. The report also contained the psychiatrist's letter recommending that the children be returned to her.
The September report contains Father's allegations that Mother abused the children, and DCFS indicated its intention to investigate the allegations. However, the juvenile court found Father not credible and gave no weight to his allegations. The court was entitled to make this credibility finding. "We cannot reweigh the evidence or substitute our judgment for that of the trial court. [Citation.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 918.)
The court's decision to return the children to Mother did not "exceed[] the bounds of reason." (In re E.B., supra, 184 Cal.App.4th at p. 575.) There was evidence in the record supporting the court's finding that Mother had learned from her past situations, and the court had the advantage of watching Mother over the course of the proceedings. The psychiatrist's recommendation and Mother's participation in numerous courses, including individual counseling, is evidence that is "'reasonable in nature, credible, and of solid value. [Citation.]'" (Ibid.) Substantial evidence thus supported the court's decision that the children should be returned to Mother instead of remaining in foster care.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.