Opinion
B230528
12-01-2011
In re A.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARGARET A. et al., Defendants and Appellants.
Patrick K. Saucier, under appointment by the Court of Appeal, for Appellant Margaret A. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Appellant Minors. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK84491)
APPEAL from orders of the Superior Court of Los Angeles County. David Fields, Judge. Affirmed.
Patrick K. Saucier, under appointment by the Court of Appeal, for Appellant Margaret A.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Appellant Minors.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Respondent.
Margaret A. (mother) and her three children (A.M., A.A. and A.G., collectively the children) appeal from the finding that the children were persons described by Welfare and Institutions Code section 300, subdivision (b) and from the dispositional order requiring mother to participate in a domestic violence counseling and a parenting education program. Mother and the children contend there was insufficient evidence to support the jurisdictional finding. Mother alone contends that even if the court properly took jurisdiction over the children, it was error to require her to attend a domestic violence victim program. We affirm.
All future undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A.M. was born in 1996, A.A. in 2002 and A.G. in 2009. In 2010, the children were living with mother and Edward G. (father). On May 18, 2010, Los Angeles police officers responded to a radio call of a domestic violence incident between mother and father. The incident generated a referral by the Police Department to the Department of Children and Family Services (DCFS). When a social worker accompanied by two police officers made an unannounced visit to the family's home to investigate, mother was cooperative but father said he would not talk to them without the approval of his criminal defense attorney. (Father had unrelated criminal charges pending.) The children were not detained. Father subsequently declined to talk to DCFS.
Edward G. was the biological father only of A.G.
A section 300 petition was filed on October 4, 2010. Paragraphs a-1 and b-1 of the petition alleged that mother and father had a history of domestic violence; they engaged in a physical altercation on May 18, 2010; by allowing father to live with and have unlimited access to the children, mother failed to protect the children. The violent conduct by mother and father endangered the children's physical and emotional health and safety, and placed the children at risk of physical and emotional harm.
Efforts to informally resolve the matter on January 5th were unsuccessful. County counsel explained DCFS's disinclination to agree to a voluntary program with this family: "A 301 isn't possible where we have parents who are not cooperating.[] And these are not cooperating parents. And if the court remembers the detention report when we came to try and interview and follow-up, the father ordered the social worker out of the home. You can't do a 301 without cooperation."
In lieu of filing a petition, or subsequent to dismissal of a petition, section 301 authorizes the social worker to undertake a program of supervision with the consent of the parents. "If a program of supervision is undertaken, the social worker shall attempt to ameliorate the situation which brings the child within, or creates the probability that the child will be within, the jurisdiction of Section 300 by providing or arranging to contract for all appropriate child welfare services . . . . If the family has refused to cooperate with the services being provided, the social worker may file a [section 300] petition. . . ." (§ 301, subd. (a).)
Mother and father appeared at the contested hearing on January 10th. The following documents were admitted into evidence: A. The Jurisdiction Report
At about 10:00 a.m. on May 18, 2010, police responded to a battery call and detained father. Father said he was packing to leave when mother began to push and hit him; he never hit mother, but defended himself from her. Mother told the officers that she asked father to leave but he refused and began to hit her; she only defended herself. The officers did not see any signs of a struggle in the apartment and or any injuries on mother or father. The police report noted that A.G. was present during the incident. When contacted by police one month later, mother declined to pursue the matter.
Father's criminal history included prior convictions for driving with a suspended license, unlawful taking of a vehicle, possession of a controlled substance and a 2007 misdemeanor conviction for corporal injury to a spouse or cohabitant; father also had pending charges relating to carrying a loaded firearm. Father received a one year jail sentence for his 2007 misdemeanor conviction for corporal injury. Father told the social worker that the incident occurred when he and mother were arguing in the kitchen and she backed into the stove and cut herself; mother was bleeding but did not feel it at the time; father maintained he "never put hands on her." A.M. called the police. Mother told the police that she cut herself but they arrested father because he had outstanding tickets. Mother's version was essentially the same. She told the social worker that the children were sent to their room when mother and father started arguing in the narrow kitchen; she accidentally hit the sharp edge of the stove with her shoulder but did not know she was bleeding; A.M. heard them yelling and called the police; mother told the responding officers that father was not abusing her but they arrested him because he was on parole.
Regarding the May 2010 incident which prompted the filing of the petition, father told the social worker he was arguing with mother and then "I took off. She called the cops. There was no physical altercation. . . . We argue like every normal couple. Sometimes we are loud." Mother's statement differed: mother and father were having a verbal argument about father moving out which the police exaggerated, but mother also said that she and father "shoved each other" during the argument. A.G. was present during the argument.
A.M. told the social worker that mother and father scream and curse; although the arguments make A.M. feel sad, he has gotten used to them but the arguments make his brother, A.G., cry. Mother told A.M. that she called the police, but A.M. did not know why. A.A. told the social worker that she never heard mother and father fight; she seemed nervous during the interview. A.G. was too young to make a statement. B. The Last Minute Information
On February 23, 2010, father was detained on suspicion of being under the influence of a controlled substance. Police recovered a revolver from the waistband of father's pants. Asked why he was carrying a gun, father told the officer, "For protection." Asked from whom he needed protection, father responded, "From you guys." Father was arrested for possession of a firearm by a felon. C. The Addendum Report
Father and mother had reconciled, but had not followed through on DCFS's suggestion that they enroll in couples counseling.
Based on this evidence, county counsel argued at the jurisdictional hearing that the children were at risk because, although father had a prior conviction for domestic violence, and there had been a second incident of domestic violence in which the police were summoned, mother continued to minimize the problem and neither parent had done anything to correct the situation; neither had enrolled in any recommended program. The children's counsel urged dismissal. She argued that the May 2010 incident did not result in any injuries or arrests, the two older children said they never witnessed any violence between mother and father (which is inconsistent with the fact that A.M. called the police in the prior incident) and since the incident in May there had been no other incidents. Under these circumstances, counsel maintained, there was no substantial evidence of risk of future harm from domestic violence between the parents. Attorneys for mother and father joined in the argument.
The dependency court sustained paragraph b-1 of the petition and found all three children to be persons described by section 300, subdivision (b). The court commented: "What concerns me is the lack of owning up to what happened here and what has happened in this home over the last few years. It is clear to me that, first of all, what the mother talks about, it was exaggerated. The fact of the matter is that was a physical altercation in May and essentially the mother really didn't want the authorities - or the father didn't - to get anyone involved. [¶] I think it is one of those situations where the mother and father really don't want anybody involved in their lives. They don't feel it is necessary. But, this court does believe it is necessary. The mother stated that the police exaggerated the current issue. What she says is they're yelling over small things. [¶] I will note that [A.M.] in the Jurisdiction Disposition Report talks about he is becoming upset in the past over their argument but now he is used to it. He is yelled at. He is actually the one who called the police back in 2007. [¶] . . . And there's a prior in this case in 2007 where [father] sustained a conviction. It rears its head again in 2010. And I don't feel comfortable not taking jurisdiction in this case." The court sustained paragraph b-1 but dismissed paragraph a-1 in the interests of justice. It ordered A.M. and A.A. placed in home of mother; and A.G. in home of parents. Mother and father were ordered to participate in DCFS approved counseling addressing domestic violence and parenting. In addition, father was ordered to complete a domestic violence program for perpetrators and to obtain individual counseling for anger management.
Mother and the children filed timely notices of appeal.
DISCUSSION
A. Substantial Evidence Supports the Jurisdictional Finding
Mother and the children both contend that there is insufficient evidence to support the dependency court's finding that the children are persons described by section 300, subdivision (b). We disagree.
In the dependency court, DCFS had the burden of proof by a preponderance of the evidence that the child or children come within the meaning of section 300. On appeal, mother and the children have the burden of showing that the judgment was not supported by substantial evidence. We view the record in the light most favorable to the judgment. (In re Giovanni (2010) 184 Cal.App.4th 594, 599; In re E.B. (2010) 184 Cal.App.4th 568, 574-575 (E.B.); In re Basilio T. (1992) 4 Cal.App.4th 155, 168 (Basilio T.).)
A child comes within the jurisdiction of the dependency court under section 300, subdivision (b) upon a showing that 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 or guardian to adequately supervise or protect the child . . . . The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness."
Subjecting children to domestic violence in the home where they live constitutes a failure to protect the children from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. (E.B., supra, 184 Cal.App.4th at p. 576.) But domestic violence supports jurisdiction under subdivision (b) only if there is evidence that the violence is ongoing or likely to continue. (Daisy H. (2011) 192 Cal.App.4th 713, 717.) As the court in E.B. observed, past violent behavior is the best predictor of future violence. (E.B., at p. 576.)
The line between speculation and a likelihood that domestic violence is continuing or will continue turns on the particular facts of each case. It is helpful to review some recent cases in which courts have come to different conclusions as to whether past incidents of domestic violence support jurisdiction under section 300, subdivision (b). First, there are the cases in which jurisdiction was affirmed. For example, in Basilio T., police responded to two domestic violence calls; both times the mother declined to press charges against the father. The two children told a social worker that they witnessed the father hit the mother; at the detention hearing the older child said he did not remember seeing the parents fight. (The younger child was found not legally competent to testify.) A neighbor testified to hearing the parents arguing one afternoon while the children were outside playing. The father admitted arguing with the mother within hearing range of the children, but denied ever hitting the mother. The father claimed mother once cut herself with a knife during an argument; later the father said the mother was bleeding from a snagged fingernail, not a knife cut. The mother did not testify. (Basilo T., supra, 4 Cal.App.4th at pp. 161-162.) The appellate court affirmed the jurisdictional finding under section 300, subdivision (b), reasoning that, "in addition to the two incidents of domestic violence reported to the police[,] there is a pattern of recurring violence in [the mother's and father's] household. The social study report relates a history of confrontations between [the parents], some of which were violent and which apparently involved the minors. Although these past occurrences are not described in detail, they are sufficient to show a pattern of violent behavior that has not been corrected." (Id. at p. 168.) In E.B., the court found evidence that the father abused the mother physically and emotionally within the hearing of the children, as well as mother's record of leaving but returning when father apologized, supported a finding that the domestic altercations endangered the children. (E.B., supra, 184 Cal.App.4th at p. 577.)
By contrast, the court in Daisy H. reversed a jurisdictional finding by the dependency court. The appellate court in Daisy H. found evidence that the father pulled the mother's hair and choked her seven years before the petition was filed did not support jurisdiction where none of the children showed signs of physical abuse, the children denied witnessing their father abuse their mother and there was no evidence that the one incident occurred in the children's presence. (Daisy H., supra, 192 Cal.App.4th at p. 717.)
The facts in this case are closer to Basilio and E.B. Jurisdiction here was not predicated on a single act of domestic violence seven years in the past. As in Basilio T., here police responded to two domestic violence calls and in both instances mother declined to press charges. In the earlier incident, it was actually one of the children who called the police. In the later incident, there was no dispute that the youngest child was present. Also like in Basilio T., the parents have not made any efforts to correct the problem - they have not enrolled in parenting or domestic violence classes and father has not obtained individual anger management counseling. This pattern of sometimes violent confrontations, mother's minimization of the seriousness of the problem and her failure to take any corrective action, constitutes substantial evidence that the domestic violence is likely to reoccur and that there is a substantial risk the children will suffer serious physical harm or illness as a result of mother's failure to protect them from it. Thus, substantial evidence supports the jurisdictional finding under section 300, subdivision (b).
B. Substantial Evidence Supports the Dispositional Order
Mother contends there is no factual basis for the dispositional order that she participate in domestic violence counseling and a parenting education program.
The dependency court is charged with making "all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . ." (§ 362, subd. (a).) But those orders must be designed to eliminate the conditions that brought the children to the attention of the court. (§ 362, subd. (c).) On appeal, our task is to determine whether substantial evidence supports the conclusion that mother's attendance in domestic violence victim counseling and parenting education programs are reasonably necessary to avoid exposing the children to domestic violence in the future. Mother's contention that the orders in this case are not reasonably necessary because she was nonoffending and did not abuse or fail to protect her children, fails for the simple reason that it is contrary to the evidence. As we have just explained, substantial evidence supported the dependency court's finding that mother failed to protect the children from being exposed to domestic violence.
Mother's reliance on In re Jasmine C. (2003) 106 Cal.App.4th 177, for a contrary result is misplaced for the same reason. Because the mother in In re Jasmine C. was nonoffending, the court found the order requiring her to attend parenting education classes was not reasonably necessary to avoid a repetition of the circumstances that brought the family into court - an isolated incident perpetrated by the father. Here, by contrast, the court reasonably found mother was offending.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
RUBIN, ACTING P. J. WE CONCUR:
FLIER, J. GRIMES, J.