Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK85828, Marilyn H. Mackel, Referee.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Angela C. (mother) appeals a jurisdictional and dispositional order of the juvenile court relating to her children, Phoenix P. and Lucas P. We affirm.
BACKGROUND FACTS
1. Mother’s Family
When respondent Los Angeles Department of Children and Family Services (DCFS) first became involved with mother’s family, Phoenix and Lucas were about four years old and three months old, respectively. The children lived with mother and their presumed father, Rodolfo P. (father), in West Covina. Father is an electrician. Mother has not worked since high school except for a brief stint working as a cashier at Walmart. Mother and father are not married.
2. Father’s History of Alcohol Abuse
Father has a history of alcohol abuse. According to mother, father drinks beer almost every day after coming home from work. Mother also stated to DCFS that when father drinks he seems happy at first “but then any little thing can trigger him and then he starts to yell or get in your face for stupid stuff.” She further indicated that when the couple argues, father sometimes shoves mother.
Phoenix reported to DCFS that father “drinks a lot of beer” and that mother “says daddy drinks too much beer[.]” The children’s maternal grandmother, Roberta T., stated to DCFS that father was an alcoholic, that he drank in the morning, and that when he drank he became “mean” and argued with mother.
In February 2009, father was arrested for driving under the influence of alcohol (DUI) and other related offenses. He was convicted of a misdemeanor and sentenced to 10 days in jail and three years probation.
3. The November 11, 2010, Domestic Violence Incident
On November 11, 2010, father went to a restaurant called Joe’s Crab Shack with Phoenix. Mother was at home with Lucas. When father came home with Phoenix he was drunk. Father went to sleep but he was woken up by Lucas crying. Father became upset and told mother she should not have given birth to Lucas and instead should have gotten an abortion. In response, mother threw father’s cellular telephone on the floor. Father reacted by throwing a remote control at mother, hitting her in between the eyes. When father threw the remote, Lucas was in close proximity to mother.
Father then approached mother and the two of them engaged in a physical fight. During the fight mother pushed, slapped and scratched father, and father punched mother in the nose and swung her around by the hair. Phoenix witnessed the whole incident.
After the fight, on the same day, mother went to a police station with the children and reported the incident. The police interviewed father, determined that he was the dominant aggressor, and placed him under arrest for violating Penal Code section 273.5, subdivision (a) [corporal injury to a spouse] and Penal Code section 273a, subdivision (b) [child endangerment].
4. Juvenile Dependency Petition
On December 20, 2010, DCFS filed a juvenile dependency petition against mother and father. The petition alleged the juvenile court had jurisdiction over Phoenix and Lucas pursuant to Welfare and Institutions Code section 300, subdivisions (a) [serious physical harm] and (b) [failure to protect]. These allegations were based on the domestic violence incident on November 11, 2010, and father’s alcohol abuse.
Father is not a party to this appeal.
Except as indicated otherwise, all future statutory references are to the Welfare and Institutions Code.
5. Father’s Contacts with Mother and the Children after the Domestic Violence Incident
On December 20, 2010, the juvenile court found there was a prima facie case for detaining Phoenix and Lucas. The children were released to mother. Father was permitted monitored visits.
There is no evidence in the record father visited the children after he was arrested by the police in November 2010. Subsequent to the arrest a court issued a three-year restraining order protecting mother from father. Although the actual restraining order is not in the record, it appears the order was issued in a criminal proceeding. According to the DCFS detention report dated December 20, 2010, “[t]his restraining order does not protect the children to ensure that the children will not be exposed to father’s violent act.”
After he was released from jail, father moved to San Diego, where he found employment. According to the DCFS jurisdiction/disposition report dated January 31, 2011, father had not visited Phoenix and Lucas. The same report indicated father called daily to speak with mother and the children.
6. March 21, 2011, Order
On March 21, 2011, after a hearing, the juvenile court issued a jurisdictional and dispositional order. The court sustained the petition. It also ordered that Phoenix and Lucas be removed from the physical custody of father. The court further ordered that mother be provided with family maintenance services and that father be provided with family reunification services. Mother filed a timely appeal of the March 21, 2011, order.
CONTENTIONS
Mother challenges the juvenile court’s jurisdictional and dispositional rulings on the grounds that there was no substantial evidence for the court to assert jurisdiction over Phoenix and Lucas.
DISCUSSION
1. There Was Substantial Evidence to Support the Juvenile Court’s Assertion of Jurisdiction over Phoenix and Lucas
We review the juvenile court’s jurisdictional findings under the substantial evidence test. (In re Maria R. (2010) 185 Cal.App.4th 48, 57.) “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.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) In determining whether there is substantial evidence, “we draw all reasonable inferences from the evidence to support the findings and orders 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 Heather A. (1996) 52 Cal.App.4th 183, 193.)
The juvenile court asserted jurisdiction over Phoenix and Lucas pursuant to section 300, subdivisions (a) and (b). Because we conclude there was substantial evidence to support the juvenile court’s jurisdiction under subdivision (b), we do not reach the issue of whether there was substantial evidence to support the court’s jurisdiction under subdivision (a). (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875; In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045.)
Section 300, subdivision (b) provides a child comes within the jurisdiction of the juvenile court 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 a parent’s failure or inability to adequately supervise or protect the child. DCFS alleges that at the time of the March 21, 2011 hearing, there was a substantial risk Phoenix and Lucas would suffer from serious physical harm or illness. By sustaining the petition, the juvenile court impliedly found this allegation true.
Mother argues that although there was evidence of past domestic violence and alcohol abuse, there was no evidence to support the juvenile court’s assertion of jurisdiction at the time of the jurisdictional hearing. This argument is anchored in statements made in In re Rocco M. (1991) 1 Cal.App.4th 814 (Rocco M.) and cases following Rocco M., such as In re Janet T. (2001) 93 Cal.App.4th 377. In Rocco M., the court stated: “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; ‘[t]here must be some reason to believe the acts may continue in the future.’ ” (Rocco M., at p. 824, fn. omitted.)
Several cases have downplayed the significance Rocco M. in light of subsequent amendments to section 300. In In re J.K., for example, the court stated: “Rocco M.’s analysis does not account for or address the change in the statutory scheme, which provides for the exercise of jurisdiction based on prior harm.” (In re J.K., supra, 174 Cal.App.4th at p. 1436.) The court also stated “the value of the oft-quoted language in Rocco M. is further diminished because it is clearly dicta.” (In re J.K., at p. 1437; accord In re David H. (2008) 165 Cal.App.4th 1626, 1642, fn. 14.)
Here, even under the standard enunciated in Rocco M., there was substantial evidence supporting the juvenile court’s assertion of jurisdiction pursuant to section 300, subdivision (b).
a. Domestic Violence
Domestic violence in the same household where children are living constitutes a failure to protect the children because it places the children at risk of physical harm. (In re Heather A., supra, 52 Cal.App.4th at p. 194; In re E.B. (2010) 184 Cal.App.4th 568, 576.) Children can, for example, wander into the room where it is occurring “and be accidently hit by a thrown object, by a fist, arm, foot or leg....” (In re Heather A., at p. 194; In re. E.B., at p. 576.)
In this case, Lucas was in fact almost hit by a remote control thrown by father. Indeed, after the incident, mother stated to a DCFS social worker: “The first thing I thought, oh my God, [father] could have hit the baby with the remote control.”
Phoenix too was in substantial danger of physical harm. As the fight between mother and father went from one room to another, four-year-old Phoenix followed them. She could have easily been physically struck during the violent and unpredictable encounter between her parents.
At the time of the hearing on March 21, 2011, there was good reason for the juvenile court to be concerned about the continuing risk domestic violence posed to the children. The violent clash between father and mother in November 2010 had occurred only four months before. Further, this was not the first time their arguments turned physical, as father had a history of shoving mother when he became drunk and argumentative, which apparently was quite frequent. Although both father and mother had begun domestic violence classes, they had not completed them by the time of the hearing and there was no reason to believe that father’s anger management and domestic violence problems had been resolved.
b. Alcohol Abuse
“The provision of a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2.) The home environment provided by mother and father was clearly not free of the negative effects of substance abuse because father had a serious drinking problem. This posed a substantial danger to the children. On the day of the domestic violence incident, for example, father was alone with Phoenix when he was drunk at a restaurant. He then either drove or walked home with Phoenix in that condition.
There was no reason for the juvenile court to believe that father had resolved his long-term problem with alcohol by the time of the hearing on March 21, 2011. In an interview with a DCSF social worker on March 3, 2011, father seemed unconcerned about his drinking problem and its affect on Phoenix and Lucas. With respect to the allegation that he had a substance abuse problem, father stated: “As far as that goes, I work a lot and I do drink and eat. That’s what I like to do on my time off, is that I barbeque and drink. I think everyone has a problem with alcohol but I think I control my intake, I know having two DUI’s does not show as though I control my drinking but I never drank and drove with my children in the car with me.” This statement indicates father still had a long way to go before he conquered his alcohol abuse and the risk it posed to Phoenix and Lucas.
c. Father’s Separation from Mother
Mother argues there was no longer a danger to the children arising from domestic violence or father’s alcohol problem because father lived in a different city and was prohibited by a restraining order from coming near mother. While these factors may have mitigated the danger, they did not eliminate it. Mother and father continued their long-term relationship, talking nearly every day by telephone, and mother continued to rely on father for financial support. Mother stated to the DCFS she would get back together with father when he completed domestic violence classes and family therapy. This indicates she was willing to see father despite the restraining order. Further, there was good reason to doubt father would obey the restraining order, especially if mother consented to his presence. Father previously violated a court order requiring him to complete DUI classes and, as a result, had a warrant issued for his arrest.
These facts, in their totality and placed in proper context, were sufficient for the juvenile court to conclude that at the time of the hearing on March 21, 2011, there was a substantial risk Phoenix and Lucas would suffer serious physical harm or illness as a result of domestic violence between father and mother and father’s substance abuse.
2. The Juvenile Court’s Dispositional Rulings
Mother argues: “[B]ecause the jurisdiction finding was in error, the subsequent disposition findings and orders must be vacated.” She makes no other arguments with respect to the juvenile court’s dispositional rulings. Because we reject mother’s argument regarding the juvenile court’s jurisdictional rulings, we also reject her arguments regarding the court’s dispositional rulings.
DISPOSITION
The juvenile court’s order dated March 21, 2011, is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.