Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Ct. No. CK85035, Timothy R. Saito, Judge.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant M.J.
Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant J.H.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Grace Clark, under appointment by the Court of Appeal, for Minors.
KLEIN, P. J.
M.J. (mother) appeals an order sustaining a dependency petition that alleged mother and father have engaged in domestic violence. Mother contends the jurisdictional finding must be reversed because, at the time of the adjudication, father had progressed in the case plan to such an extent that any risk of harm was insubstantial.
K.H. and G.H. (the children) appeal a dispositional order which permitted father to return to the family home. The children contend the juvenile court abused its discretion in allowing father to return to the family home.
We reject these contentions and affirm the orders of the juvenile court.
Father also appealed. However, counsel appointed to represent father on appeal filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835. By notice dated August 4, 2011, the clerk of this court directed counsel appointed to represent father to send the record on appeal to father and granted father permission to file a letter or brief addressing any grounds of appeal, contentions or arguments father wished this court to consider. To date, father has not filed an opening brief.
FACTS AND PROCEDURAL BACKGROUND
1. Referral of the family; father is ordered to move from the home.
The family came to the attention of the Department of Children and Family Services (the Department) on November 2, 2010, when the Department received a referral alleging that 11-year-old K.H. and 3-year-old G.H. were victims of physical and emotional abuse by father. According to the referral, father would get angry, kick his family out of the house and hit mother and both children. In the most recent incident of abuse, which occurred a few days prior to the referral, father knocked mother off the bed in anger and she cried. Father allegedly hit G.H. when he was angry and hit or kicked K.H. at least three times per week. The caller stated father “rarely” drinks because his doctors told him not to. However, when father does drink, he gets “really angry.”
The emergency response social worker interviewed father about the allegations. Father admitted he was depressed because of a work-related disability but denied domestic violence in the home and denied that he hit K.H. or G.H., or that he knocked mother off the bed. Father admitted he had threatened to hit K.H. by hitting the bed with a belt when K.H. was on the other side of the room. Father denied that he had a drinking problem and stated he cannot drink alcohol because of medication he takes for his disability. Father stated he witnessed “severe” domestic violence between his parents when he was a child and was hit with a horse whip as punishment but father did not consider this to be abusive.
Mother said she immigrated to the United States when she was 19 years old. Shortly thereafter, mother met father while visiting a friend. Father “held her captive and would not let her leave.” Mother did not call the police because father threatened her. After living with father and his family in captivity for one month, mother began having sexual relations with father. Thereafter, she believed she could not leave father because her culture required her to remain with a man she slept with. Mother soon became pregnant with K.H. Mother stated that, before his disability, father drank often and would kick mother and baby K.H. out of the house. However, father stopped drinking three to four years ago. Mother said father would get angry and hit and push her and throw things at her. Father also verbally abused mother, called her names and accused her of cheating on him. Mother said a paternal uncle advised mother to leave father because of his abuse. Mother once left father for a few days but father apologized and begged her to return home.
Mother stated that, about a month before the interview, father asked mother for oral and anal sex while G.H. slept with them in their bed. When mother refused, father accused mother of having sex with other men and told her to leave the house. Mother got up to leave but stopped to pat G.H., who had awakened. Father told mother he did not want her in the bed and pushed her to the floor. K.H., who had been asleep in her room, came in and asked what happened. Mother told K.H. nothing had happened; father said mother was clumsy and fell. Mother stated “father’s upbringing was very tragic” and his paternal grandfather was arrested for domestic violence in Mexico. Mother stated she does not “blame father for the way he is because that is all he saw.” However, mother wanted father to change. Mother stated she remained with father because K.H. told her she wanted them to be together as a family. Mother said she is not afraid of leaving father but does not want her children to grow up without him. Mother denied that father hit the children but said father preferred G.H. to K.H. and he called K.H. derogatory names. Mother asked the social worker not to tell father what mother had disclosed.
K.H. told the social worker father has kicked mother and the children out of the house. K.H. indicated she told a teacher, Ms. O., that mother and father have been having problems after mother told K.H. that father wanted mother and the children to move from the house. K.H. told the social worker father gets angry with mother, hits mother and has kicked mother out of bed. K.H. said she did not see father kick mother out of bed but was awakened by a noise, entered her parents’ bedroom and saw mother on the floor. Father said mother was clumsy and “falls over things.”
K.H. said she had seen father hit mother on the shoulder in a rude way and father calls mother derogatory names. K.H. reported that once she was eating a sandwich and father asked her to give the sandwich to him. When K.H. refused, father grabbed the sandwich, threw it at her and told her to make him a sandwich. Father then hit K.H. with a belt because she did not give him the sandwich. Mother attempted to intervene and told K.H. to run from the house. K.H. did not leave because she feared father would hit mother. Mother called the police but pushed the “end” button before the call went through. K.H. said father has hit her on the hand but not hard. K.H. denied that father hits G.H. K.H. stated father does not drink now but he did before his accident. K.H. was afraid of father because she did not like to see him hit mother. K.H. did not like that father called her names and put her down.
At the conclusion of the interview, mother and father agreed to a safety plan pursuant to which mother and the children temporarily would reside with maternal relatives.
The social worker interviewed K.H.’s teacher, Ms. O., who indicated she had known K.H.’s family for a long time. Ms. O. had no concerns about K.H. until recently when K.H. appeared sad. Ms. O. discussed her concerns with K.H. and learned of the parents’ “marital issues and father’s temperament.” K.H. told Ms. O. she wanted father to get help and she did not want her parents to separate regardless of how father treated mother.
A team decision-making meeting was held on November 3, 2010. The meeting addressed the strengths of the family, such as the family having no prior referral history, the parents’ commitment to the children and the family’s extensive support network. The issues of concern were the disclosures of domestic violence, inappropriate discipline of K.H., father’s alcohol use and K.H.’s sadness. During the meeting, father denied domestic violence and minimized the severity of the emotional abuse by stating it began as horseplay between him and his wife. Father denied he had ever hit K.H. with a belt. Father denied throwing mother out of the house and denied hitting G.H. Father admitted cursing but stated these words are part of his vocabulary. Father appeared unaware of how his marital problems contributed to K.H.’s sadness. Mother confirmed her statement to the social worker and indicated father had begun to shift his verbal abuse from mother to K.H. because K.H.’s personality was similar to mother’s.
At the end of the meeting, father acknowledged he would benefit from services and wanted mother and the children to return home. When father was advised mother and the children were not going to return home, father requested removal of the children from mother so that he and mother could return home and visit the children together in foster care. However, mother wanted the children to remain in her care and father agreed to move from the home so mother and the children could return.
On November 8, 2010, the Department filed a petition alleging the children were described by Welfare and Institutions Code, section 300, subdivisions (a), (b) and (j). The petition alleged father had physically abused K.H. by hitting her with a belt and throwing objects at her; father had a history of striking mother in the presence of the children; and, father had a history of alcohol abuse.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
At the detention hearing on November 8, 2010, the juvenile court released the children to mother on condition father not reside in the home. The juvenile court granted father monitored visits and directed that mother not act as the monitor.
2. Social reports filed for the jurisdictional hearing.
Approximately one month after the referral, mother was interviewed for the jurisdictional hearing. Mother denied that father had hit her or pushed her off the bed and denied that father had threatened K.H. with a belt. Mother claimed father had never struck mother or pushed her but admitted they had arguments and that mother and father engaged in “horse play.” Mother stated she lied to the social worker about domestic violence in the home because she felt intimidated and the social worker threatened to detain the children if mother did not agree with everything K.H. had reported. Mother said she was experiencing financial problems due to father’s absence from the home. Mother rambled during the interview and appeared confused. The social worker opined mother might be low functioning.
K.H. similarly denied father had ever hit her with a belt. K.H. admitted she told the social worker and her teacher that father had hit her but claimed she made these statements because she was frustrated with the home situation. K.H. said she never told the social worker that father once threw a sandwich at her. K.H. also denied she had seen father hit or push mother. K.H. missed father and said she and G.H. wanted father to return home. K.H. said she regretted lying about father and indicated it has caused great problems for her family.
Father told the social worker he believed K.H. was rebelling. Father denied physical abuse of K.H., denied ever pushing or hitting mother and said mother lied to K.H. about him pushing mother off the bed. Father also denied an alcohol problem.
The Department reported father was attending Alcoholics Anonymous (AA) and had enrolled in individual counseling, domestic violence counseling, anger management and parent education classes.
On March 21, 2011, the Department submitted an interim report which indicated mother had completed a 10-session parenting class and had participated in group domestic violence counseling since December of 2010. Father had participated in random alcohol testing with negative results. Father attended AA meetings twice per week, he had completed a 15-session parent education program and he actively was participating in domestic violence counseling, anger management and individual counseling.
According to the Department, the family was cooperative, receptive to services and appeared to be doing “very well.” The Department recommended that father be allowed to return to the family home on condition he continues to participate in the case plan. Attachments to the report indicated father had completed 14 weeks of a 52-week domestic violence and anger management program.
3. Adjudication and disposition.
The adjudication commenced on March 21, 2011. Over the next several days, mother, father, and K.H. testified consistently with the statements in the jurisdiction report. Each denied or minimized the statements regarding domestic violence in the detention report.
K.H. denied that father had even struck mother or engaged in any angry altercations with her. K.H. also denied that father ever struck her with a belt, although she admitted she told the social worker he had. K.H. asked that father be returned to the family home. K.H. also admitted she told a social worker father kicked mother and the children out of the home.
Mother testified father did not push her from the bed. She stated she falsely told K.H. father had pushed her because mother was upset with father for having gone to Las Vegas after promising to trick or treat with the children. Mother claimed she told the social worker there had never been any domestic violence between herself and father. However, the social worker told mother the children would be removed from the home if mother did not admit that father had problems with domestic violence and alcohol abuse.
Father denied he had ever physically disciplined the children or committed domestic violence against mother.
At the conclusion of the adjudication, the juvenile court found the recantations of the initial allegations by mother and K.H. were not believable. The juvenile court dismissed the allegations of physical abuse and alcohol abuse but sustained the count alleging domestic violence in the home.
As sustained, the petition alleged mother and father “have prior incidents of domestic violence in the presence of the child, [K.H.], including a prior occasion where the father pushed the mother (causing her to fall onto the floor). Such prior incidents of domestic violence on the part of father against the mother place the children at risk or harm.”
The juvenile court noted “mother gave extremely detailed accounts of what occurred with the father to precipitate her being pushed off the bed.... [¶] Although mother now says that the father did not push her, the evidence points to the fact that it did occur.... The court can’t ignore the fact that the mother’s statements were very detailed regarding the incident[, ] explaining the details of the father’s motivation for his actions and was a reaction to her resisting his request for oral and anal sex. Details... were given to the social worker at the onset of the case... which the court does not believe... the social worker could have just made up. [¶]... In addition, there were various statements in the report that the child testified that there was domestic violence ongoing in the home....”
Regarding disposition, the juvenile court ordered father to attend an approved program of domestic violence for offenders and individual counseling to address case issues.
Counsel for the children asked the juvenile court not to follow the Department’s recommendation that father be permitted to return to the home. Counsel argued father remained in denial and, although father was attending a domestic violence program, he had not benefitted. Counsel feared that, if father again committed domestic violence, it would not be reported. Thus, return of father to the home would present a safety risk.
The juvenile court adopted the recommendation of the Department and permitted father to return to the family home but conditioned it on both parents participating in conjoint counseling with the children. The juvenile court also ordered the Department to conduct monthly unannounced visits to “check on the status of what is going on in the household.”
CONTENTIONS
Mother contends the juvenile court erroneously sustained the dependency petition.
The children contend the juvenile court abused its discretion in allowing father to return to the family home.
DISCUSSION
1. The evidence supports the jurisdictional finding.
Mother asserts that, by the time of the adjudication, mother and father had progressed in the case plan to such an extent that any risk of harm to the children was insubstantial. Mother claims jurisdictional findings must be based on a showing there is some reason to believe a parent’s past act of inflicting injury on a child may continue in the future. (In re Daisy H. (2011) 192 Cal.App.4th 713, 717; In re Janet T. (2001) 93 Cal.App.4th 377, 388.) Mother argues there was no evidence in this case of any injury to either child and there was no reason to believe father would harm the children in the future. She claims the order permitting father to return to the family home suggested mother and father had eliminated the potential for risk to the children. Mother concludes the juvenile court erroneously grounded its jurisdictional finding in a perceived risk, rather than an actual risk. (In re B.T. (2011) 193 Cal.App.4th 685, 693-694; In re James R. (2009) 176 Cal.App.4th 129, 137.) Thus, the juvenile court should have either dismissed the dependency petition or adopted a plan of informal supervision under section 360, subdivision (b).
Mother’s claims are not persuasive.
A juvenile court’s jurisdictional findings must be supported by a preponderance of the evidence. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344; § 355, subd. (a).) We review a juvenile court’s jurisdictional finding for substantial evidence. In so doing, we view “the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
As relevant here, section 300, subdivision (b) provides for dependency 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 or guardian to adequately supervise or protect the child....” (§ 300, subd. (b).)
Mother does not dispute the juvenile court’s finding that domestic violence occurred in the home. This finding was based on the juvenile court’s conclusion mother’s initial statements to the social worker contained in the detention report were credible. Those statements included mother’s assertion father held her captive until she eventually had sexual relations with him and she thereafter remained with him because, in her culture, a woman had to stay with a man she slept with. Mother thereafter endured domestic violence at the hands of father in order to keep her family intact. After father had to move from the home, mother and K.H. recanted the allegations of domestic violence and abuse. This scenario presents a classic case of battered woman syndrome. (See People v. Brown (2004) 33 Cal.4th 892, 898-900.)
Also, father consistently denied domestic violence or abuse, thereby suggesting the case required formal supervision. Thus, contrary to mother’s assertion, the juvenile court reasonably could conclude there was an ongoing risk of domestic violence in the home that placed the children at risk of harm.
The cases cited by mother, In re Daisy H. and In re Janet T. aredistinguishable. In Daisy H., the social agency acknowledged the allegedly offending parent had not been abusive toward the children. Janet T. held a parent’s mental health issues that did not create a substantial risk of harm to the children were insufficient to warrant dependency jurisdiction. Neither case suggests the juvenile court’s finding that mother and father had engaged in domestic violence in the presence of K.H. was inadequate to support jurisdiction.
Indeed, “domestic 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.” (In re Heather A., supra, 52 Cal.App.4th at p. 194; see also In re E.B. (2010) 184 Cal.App.4th 568, 576.)
In sum, substantial evidence supports the juvenile court’s jurisdictional finding. We therefore need not address mother’s further assertion the juvenile court should have proceeded pursuant to section 360, subdivision (b).
2. No abuse of the juvenile court’s discretion appears in allowing father to return to the family home.
The children contend the juvenile court abused its discretion in allowing father to return to the family home. They assert that, although father was compliant with the case plan, there was no showing he would be able to change his behavior. The children note father never admitted his prior behavior had been abusive. Because father himself had been the victim of domestic violence, the children assert it is unlikely that four months of counseling will result in a change in father’s behavior. Further, given that mother and K.H. recanted their initial reports of father’s abuse, it was unlikely they would report new instances of abuse for fear the Department would intervene. The children conclude the safeguards put in place by the juvenile court to protect the children from father would not be effective. Consequently, there was insufficient evidence to support a finding K.H. and G.H. were not at a substantial risk of harm with father in the home.
The juvenile court has broad discretion to determine what would best serve and protect a child’s interest and to fashion a dispositional order in accordance with this discretion. (In re Corrine W. (2009) 45 Cal.4th 522, 532, quoting In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) The juvenile court’s determination in this regard will not be reversed absent a clear abuse of discretion. (Ibid.; In re Neil D. (2007) 155 Cal.App.4th 219, 225.)
Here, based on father’s participation in the case plan and the positive factors identified at the outset of the case at the team decision-making meeting, the juvenile court reasonably could conclude that father’s presence in the home did not present a substantial risk of harm to the children. As noted at the team decision-making meeting, the family had no prior referrals, the parents were committed to the children and the family had an extensive support network. Additionally, the order permitting father to reside in the home was conditioned on father’s continued participation in the case plan. Further, the juvenile court directed the Department to make unannounced home visits to ensure no further incidents of domestic violence occurred. Given these circumstances, no abuse of the juvenile court’s discretion appears.
In re Mariah T. (2008) 159 Cal.App.4th 428, cited by father, does not require a different result. In that case, the mother challenged a dispositional order removing her children from her care based on a finding the mother used inappropriate corporal punishment and mother’s live-in boyfriend sexually abused one of the children. In re Mariah T., concluded the juvenile court properly could refuse to credit the mother’s claims she would no longer use corporal punishment and the boyfriend had moved out. (Id. at p. 441.) The children argue that, under In re Mariah T., because the juvenile court in this case found mother and father were not credible when they testified there had been no domestic violence, it also should have concluded the children were not safe with father in the home.
However, merely because Mariah T. affirmed an order removing children from a home where they were abused does not mean the juvenile court erred in allowing father to return to the family home in this case. The juvenile court in Mariah T. rejected mother’s claim she would not further abuse the children. Here, the juvenile court found the children would be protected by the progress the parents had made and the safeguards it put in place. Given the totality of the circumstances presented, no abuse of the juvenile court’s discretion appears. We therefore reject the children’s attack on the juvenile court’s disposition order.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: KITCHING, J.ALDRICH, J.