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Los Angeles Cnty. Dep't of Children & Family Servs. v. Erick E. (In re Jordan E.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 30, 2012
No. B233459 (Cal. Ct. App. Jan. 30, 2012)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No. CK86316, S. Patricia Spear, Referee.

Suzanne Davidson, 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

Erick E. (Father) appeals from a juvenile court’s jurisdictional, dispositional, and visitation orders regarding his children Jordan E. and J.E. We conclude that substantial evidence supports the jurisdictional findings and that the order for Father’s monitored visitation with his children was not an abuse of discretion, and affirm the orders.

FACTUAL AND PROCEDURAL HISTORY

Detention and Section 300 Petition: On September 29, 2010, it was reported that 17-year-old S.R. (Mother) was suspected of being physically abused by Father, her boyfriend. Mother and Father were the parents of two-year-old Jordan E. and one-year-old J.E. The reporting party stated that the maternal grandmother observed Mother with bruises and a bloody lip and clothing after being alone with Father. The maternal grandmother indicated that incidents of abuse were current and ongoing, and that Mother was out of the home for a month and living at Father’s unknown address. The allegations were found to be substantiated. On November 3, 2010, Father stated that five months earlier, when Mother was talking about “some guy, ” they started wrestling and playing. Father said that when he tried to push Mother, she fell onto his fist and he “popped her on the lip, ” which swelled up and bled. Father said that the children were with maternal grandmother in another room. A CSW told Mother to get a restraining order to prevent her from losing her children, and Mother did obtain a restraining order against Father.

The case came to the attention of the DCFS again on January 19, 2011. Maternal grandmother reported that she suspected that the parents had reunited and Mother told her she wanted to terminate the restraining order and move back with Father. Maternal grandmother did not agree with this plan because she stated that Father was manipulative and controlling and he and Mother had a history of domestic violence. Mother had failed to care for her children for the previous two weeks and had not returned to the family home. Maternal grandmother was caring for J. and Jordan, and reported that as of January 21, 2011, Mother had not come home since January 19.

Mother talked to a CSW on January 21, 2011, by telephone, but said she was not available to meet in person and gave several excuses for not wanting to attend a meeting with the CSW. The CSW informed Mother that a meeting was necessary to discuss her leaving her children in maternal grandmother’s care for an extended period. Mother stated she tried to take her children with her, but maternal grandmother had prevented her from doing so. Mother stated that she had an argument with maternal grandmother and decided to stay a few days with a school classmate. Mother reported she did not talk to Father, but was considering getting back together with him once she took care of the restraining order. Mother said the previous CSW threatened her and told her if she did not file for a restraining order her children would be taken away. Mother said that in June 2010 Father did not hit her intentionally, but that they were playing rough and he accidentally hit her on her mouth. Mother also stated that when she returned to her mother’s house to take her children with her, maternal grandmother prevented her and to avoid further conflict she decided to leave without her children.

Mother agreed to return to the family home. Three days later on January 24, 2011, however, maternal grandmother reported that Mother had not returned home. Mother attended a Team Decision Making meeting on January 26, 2011, but refused to explain her whereabouts or why she left the children for seven days, took her mother’s only mode of transportation, and failed to respond to her mother’s request to bring food for the children. Mother did not appear to grasp the consequences of what was explained to her about caretaker absence and incapacity. She did agree that the children would be detained from Father and released to her with the condition that she remain with maternal grandmother, enroll in counseling to address domestic violence, and that she receive a family preservation referral.

On January 31, 2011, the DCFS filed a Welfare and Institutions Code section 300 petition alleging that Jordan and J. were persons described by section 300, subdivision (b) [child risked suffering serious physical harm as a result of parent’s failure or inability to supervise or protect child] in that Father engaged in a violent altercation with Mother, struck her in the face with his fists causing a bloody laceration to her lip, and on prior occasions struck Mother’s body, causing bruising.

Unless otherwisespecified, statutes in this opinion will refer to the Welfare and Institutions Code.

The DCFS recommended that Jordan and J. be detained in Mother’s home provided that she live with maternal grandmother and have no contact with Father pending further juvenile court order.

On January 31, 2011, the juvenile court found that a prima facie case was established for detaining Jordan and J. as persons described by section 300, subdivision (b), and ordered them released to Mother on the condition that they and Mother were to live with maternal grandmother.

Adjudication and Disposition: Maternal grandmother admitted that she did not witness the June 2010, incident, but believed Father struck Mother in the mouth, causing her lip to bleed. Maternal grandmother stated that Mother tried to hide a sheet with blood on it because she knew it would upset maternal grandmother. Maternal grandmother believed Father was violent. A maternal uncle also believed that domestic violence was occurring between Mother and Father, and knew Mother tried to hide a bloody sheet, which led him to believe that Father intentionally struck Mother in the mouth. Mother and Father continued to deny that Father’s physically abused Mother.

Father had monitored visitation, but as of March 8, 2011, Father had no visits with the children. A visit was scheduled for Father during the following week. The children were living with Mother in maternal grandmother’s home. Mother was in the 10th grade and attended continuation school, stated that she intended to graduate from high school as soon as possible, and attended teen parenting classes. Mother would turn 18 in March 2011 and indicated that she would like to take the children and move out and live with Father; Mother and Father both indicated that they planned to marry after Mother turned 18.

At a pre-resolution conference on March 8, 2011, Father requested unmonitored visits. The juvenile court granted the DCFS authority to liberalize Father’s visits. The matter was set for mediation and another preresolution conference. No agreement was reached in mediation, and a contested adjudication hearing was held in May 19, 2011.

Father testified about the June 2010 incident in which he caused Mother to have a bloody lip. Father stated that he and Mother were engaged in wrestling and “horseplay.” Mother came forward and Father tried to protect himself, and Mother hit her mouth on Father’s elbow. Father denied that he pushed her, or that anything like this had happened previously. Father testified that maternal grandmother was with one of the children in another room. Father admitted that Mother was bleeding from her lip and that blood was on a bed sheet. He apologized to Mother, who said she was all right. Father admitted, however, that after the incident Mother left the house for 20 minutes. Father did not know why she left. Later they went to sleep. Father slept in the home that night, stayed three more days, and went home.

Mother testified that while horse playing, Father’s elbow bumped into her face. She said the injury was accidental. She felt nervous because she saw blood running down her lip. During the incident the children were sleeping in maternal grandmother’s room.

The juvenile court sustained the domestic violence allegation, found that the children were persons described by section 300, subdivision (b), and declared Jordan and J. dependent children of juvenile court. The juvenile court ordered the care and custody of the children removed from Father and placed them in Mother’s home under DCFS supervision. The juvenile court ordered visits for Father to be monitored by a DCFS-approved monitor and granted the DCFS discretion to liberalize visitation. The juvenile court ordered the DCFS to provide family reunification services to Father and the children and to provide family maintenance services to Mother and the children, and ordered Mother and Father to complete a disposition case plan.

Father filed a timely notice of appeal.

ISSUES

Father claims on appeal that:

1. The jurisdictional orders should be reversed because substantial evidence did not support the jurisdictional finding as to the children; and

2. The juvenile court abused its discretion by ordering monitored visits for Father.

DISCUSSION

1. Substantial Evidence Supports the Jurisdictional Findings

Father claims that the jurisdictional order must be reversed because substantial evidence does not support the finding that the children were persons described by section 300, subdivision (b). Father argues that the DCFS reports and parents’ testimony at the contested adjudication hearing did not constitute substantial evidence to support jurisdictional findings, that no evidence showed the children suffered physical harm, and that a single incident of domestic violence in June 2010 between Mother and Father was not sufficient evidence from which to infer that the children were at risk of serious physical harm or illness in the future.

A. Standard of Review

Section 300 sets forth the grounds for juvenile court jurisdiction over those who are declared dependent children of the juvenile court. Before a court may exercise jurisdiction to make a child a dependent child of the court, the evidence must indicate that the child is exposed to a substantial risk of serious physical harm or illness. (In re Janet T. (2001) 93 Cal.App.4th 377, 388.) “The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) This court reviews jurisdictional findings according to the substantial evidence test, and thus we review the evidence before the juvenile court in the light most favorable to its order. (In re S. O. (2002) 103 Cal.App.4th 453, 461.) “Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we ‘accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]’ [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on unrelated grounds, Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749.)

B. Substantial Evidence Supports the Finding the Domestic Violence Between Mother and Father Placed the Children at Risk of Serious Physical Harm

At a jurisdictional hearing, the juvenile court “shall first consider only the question whether the minor is a person described by Section 300. Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300.” (§ 355, subd. (a).) “[T]he purpose of the provisions of this chapter relating to dependent children is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (§ 300.2.)

Section 300, subdivision (b) provides, in relevant part, that a child comes within the juvenile court’s 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... to adequately supervise or protect the child[.]”

Father argues that no evidence showed that Jordan and J. suffered serious physical harm or the risk of such harm. We reject that argument. The incident in June 2010 in which Father struck Mother and caused her lip to bleed did place the children at risk of harm. There was also some evidence that Father had struck Mother on previous occasions, causing bruising. Other family members-maternal grandmother and maternal uncle-believed that domestic violence continued to occur between Father and Mother. Domestic violence in the household where children live constitutes a failure to protect the children because it places them at risk of physical harm. (In re Heather A. (1996) 52 Cal.App.4th 183, 194; In re E B. (2010) 184 Cal.App.4th 568, 576.) Common sense and expert opinion both indicate that spousal abuse is detrimental to children. Violence by one parent against another harms children even if they do not witness it. Studies show that when violence occurs once in a relationship, the use of force recurs in the majority of those relationships. (Ibid.) Neither parent had participated in a domestic violence program or had received treatment to address domestic violence. Both parents denied that domestic violence had occurred and failed to acknowledge the violent nature and seriousness of the June 2010 incident. We find that the June 2010 incident of domestic violence did place the children at risk of harm.

Father argues that this case resembles In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy H.). In Daisy H., a father had committed domestic violence against the mother at least two years, and possibly as many as seven years, before the section 300 petition was filed, and there was no evidence of ongoing violence between the parents, who were separated. The appellate court found the evidence insufficient to support a finding that past or present domestic violence between parents placed the children at current substantial risk of physical harm, and reversed jurisdictional and dispositional orders. (Id. at pp. 717-718.) In this appeal, by contrast, the domestic violence between Father and Mother occurred in June 2010, seven months before the section 300 was filed. During the dependency case, the juvenile court required Father’s visitation with the children to be monitored, which unlike in Daisy H., may have prevented Father from committing further acts of domestic violence and may have protected the children from its effects. Also after the incident Mother lived with maternal grandmother, who protected the children and prevented further domestic violence. Unlike the parents in Daisy H., who were separated, Father and Mother stated that they intended to marry. We find that Daisy H. is distinguishable from this case and does not require reversal.

Father also argues that this case resembles In re James R. (2009) 176 Cal.App.4th 129 (James R.), but that case did not involve domestic violence between parents. Instead the section 300 petition had alleged that the children were at risk of serious physical harm resulting from the mother’s mental illness or substance abuse and that the father was unable to protect the children. (James R., at p. 132.) There was no evidence that either parent had abused, neglected, or caused harm or a risk of harm to the children, or that the parents were unable to provide regular care for the children. (Id. at p. 136.) Therefore James R. reversed jurisdictional and dispositional orders. Factually distinguishable, James R. has no application to this appeal.

We find that substantial evidence supports the finding the domestic violence between Mother and Father placed the children at risk of serious physical harm, and the adjudication order should be affirmed.

2. The Visitation Order Was Not an Abuse of the Juvenile Court’s Discretion

Father claims that the juvenile court abused its discretion by ordering father to have monitored visits with Jordan and J., because no evidence showed Father would be a danger to his children and it was in their interest to see him as frequently as possible to maintain their bond with him.

A. Standard of Review

The appropriate standard of reviewing a visitation order made by a dependency court is that of abuse of discretion. The reviewing court must consider all the evidence, draw reasonable inferences, and resolve evidentiary conflicts in the light most favorable to the trial court’s ruling. The test is whether any rational trier of fact could conclude that the visitation order advanced the child’s best interests. This court must uphold the ruling if it is correct on any basis, regardless whether it is the ground on which the trial court relied. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067)

B. The Order for Monitored Visitation Was Not an Abuse of Discretion

The juvenile court rejected the parents’ evidence that the incident in June 2010 was an accidental blow by Father’s elbow or the result of horseplay or wrestling. The juvenile court found that earlier statements made by Father that Mother fell on his fist and that he popped her in the lip to be a more accurate description of the domestic violence that occurred. We have concluded that the incident of domestic violence placed the children at risk of serious physical harm. Father denied the existence of domestic violence and had not participated in any counseling or education addressing domestic violence. In these circumstances, requiring Father’s visits to be monitored by a DCFS-approved monitor was not an abuse of discretion.

DISPOSITION

The orders are affirmed.

We concur: KLEIN, P. J, .CROSKEY, J.


Summaries of

Los Angeles Cnty. Dep't of Children & Family Servs. v. Erick E. (In re Jordan E.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 30, 2012
No. B233459 (Cal. Ct. App. Jan. 30, 2012)
Case details for

Los Angeles Cnty. Dep't of Children & Family Servs. v. Erick E. (In re Jordan E.)

Case Details

Full title:In re JORDAN E. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 30, 2012

Citations

No. B233459 (Cal. Ct. App. Jan. 30, 2012)