Opinion
F074332
03-08-2017
In re T.C. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. K.C., Defendant and Appellant.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. Nos. JD136093, JD136094, JD136095)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Judge. Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Defendant/appellant K.C.'s (father) four children were removed from his custody at the disposition hearing on a Welfare and Institutions Code section 300 petition. He challenges the sufficiency of the evidence supporting removal of the three younger children. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
Mother and father were married in 1999; they now have four children, B.C., born in 1999; T.C., born in 2004; J.C., born in 2007; and C.C., born in 2010.
On May 29, 2016, the Kern County Sheriff's Office responded to a call of a spousal abuse in progress. Deputy Branden Routh and Deputy Orona responded. Orona interviewed mother, who stated that she and father had been arguing. Father broke mother's cell phone charger, then went into the bedroom and knocked items off the nightstand. Mother then knocked over items on the dresser and father " 'rushed over' " toward mother, hitting her in the chest and pushing her back. Mother hit her elbow on the dresser and sustained a scratch.
B.C. came into the bedroom and yelled at father to stop hitting mother. Father and B.C. went into the living room and mother heard B.C. scream; mother thought father had hit B.C. Mother told father to stop hitting B.C. and told B.C. to call 911. Father fled the residence.
Deputy Routh interviewed B.C., who stated her parents had been arguing "all day." When she heard the sound of items being thrown in the bedroom, B.C. went to the bedroom and saw mother hunched over and holding her head. B.C. believed father had assaulted mother and B.C. yelled at father not to "hit my mom." Father slapped B.C. with an open hand and then pushed her, causing B.C. to fall. B.C. said mother asked her to call 911, so B.C. ran to her room and dialed 911. Father came in and asked if she called 911 and when B.C. answered affirmatively, father grabbed her phone, threw it down, and fled.
Mother declined a protective order and refused to press charges; she also denied any prior incidents of domestic violence. The responding officers were recommending father be charged with a violation of Penal Code section 243, subdivision (e)(1), spousal battery.
After father fled, mother called the children's aunt, Cheryl, and asked her to pick up the children and have them stay the night at their aunt's house. The next day, May 30, mother texted Aunt Cheryl to state that father had returned home "yelling again. Broke my coffee pot and fan and left." Mother wanted B.C. to stay at her aunt's "until I text you." B.C. stayed at her aunt's home another night, and at school the next day, B.C. spoke with a counselor about how to get out of her present living situation.
On May 31, 2016, the department received a referral alleging physical abuse, emotional abuse, general neglect, and at-risk siblings. Social worker Phillips interviewed B.C. at her school. B.C. showed Phillips an injury to her right upper lip, which B.C. said she received when her father slapped her "for trying to protect my mother." B.C. said she did not have any other injuries and felt safe at her Aunt Cheryl's house. When Phillips told B.C. that father would have to be interviewed as part of the investigation, B.C.'s expression changed and she stated, " 'He is going to beat me for telling you.' "
After school ended on May 31, B.C. returned to her aunt's home. Aunt Cheryl was waiting for a text from mother before bringing B.C. At around 9:00 p.m., father showed up at Aunt Cheryl's apartment and tried to enter, but the door was locked. When Aunt Cheryl opened the door, father walked in and told B.C., " '[G]et your shit and get the f**k in the truck' " and demanded B.C.'s cell phone. B.C. told father he had already broken it, but father took the phone and stomped on it.
Aunt Cheryl was trying to convince father not to take B.C. Father called the sheriff's department and told Aunt Cheryl he was going to obtain a restraining order against her. B.C. began having an "anxiety attack." Deputies arrived and transported B.C. back to the family home. B.C. asked the deputies to take her somewhere else and told them father would beat her if they left her in his care.
Less than 15 minutes after the deputies left, father came into the children's bedroom and said to B.C., " 'I hope you're happy you tried to get your siblings taken away, after all we've done for you.' " All four children were in the room at the time. Father screamed at B.C. to get out of bed and told the other children to leave the room and go the parents' bedroom.
B.C. testified she curled up in a blanket because she knew what was coming, " 'not a spanking, but abusive hitting.' " Father took off his belt and mother stated, " 'Don't [K.C.] that's what she wants, she wants you to leave a mark.' " Mother then left the room and father began hitting B.C. with the belt; he hit her four to six times while she was curled up on the bed. Father then pushed B.C. onto the floor, grabbed her by the hair, and dragged her to the living room with his left hand while striking the child with the belt using his right hand.
B.C.'s grandmother came out and tried to intervene. Father yelled at grandmother to move out of the way. Grandmother saw father hit B.C. with the belt more than five times. B.C. ran for the front door and mother threatened to send her to juvenile hall if B.C. left the residence. B.C. ran for the front gate, but father caught her and yanked her back by her hair and shirt, tearing her shirt and pulling a chunk of hair from her head. Father was pulling B.C. back to the residence while shaking her as he dragged B.C. over dirt and concrete. Grandmother came out and managed to get father to let go of B.C.'s hair; B.C. ran to a neighbor's home and called 911.
The deputies who responded to the 911 call drove B.C. back to the family residence. B.C. was in the back seat while the deputies spoke with mother and father. When the deputies returned, they stated B.C. was under arrest for assaulting father.
On June 1, 2016, Aunt Cheryl called the department and made a referral, stating that father was violent and aggressive toward B.C. and mother does nothing to protect her. Aunt Cheryl believed B.C. was being targeted because she "came out" and stands up for her mother and the other children.
Social worker Phillips spoke with B.C. on June 1 at juvenile hall. Phillips previously had been provided with photographs depicting bruising and marks on B.C. The injuries shown in the photographs were extensive. They depicted B.C. with a bloody and swollen lip; substantial bruising to the right leg and upper thigh; multiple bruises and welts that appeared to have been made by a belt; a tear in the back of B.C.'s shirt; lacerations and dried blood on both knees; and additional marks on the lower legs that appeared to have been made by a belt.
Social worker Phillips spoke with mother and showed her the photographs. Mother claimed the injuries to B.C.'s knees were "eczema" and stated she and father wanted to know why B.C. was misbehaving. Phillips told a sheriff's deputy that the alleged discipline was excessive.
Social worker Phillips spoke with T.C. on June 2, 2016. T.C. initially stated everything was "fine" at home, and that when B.C. returned home, she was asleep. Phillips explained it was important to be truthful, and T.C. acknowledged being sent out of the bedroom, hearing B.C. screaming, and having a " 'pit feeling' " in her stomach.
Social worker Phillips also spoke with J.C. who also initially claimed everything at home was fine. J.C. said mother told them B.C. is causing trouble so the children will be sent to foster care; J.C. did not want to go into foster care. J.C. said B.C. would not answer father's questions, so father " 'swatted' " B.C. with a belt. J.C. apologized to Phillips for not initially being truthful, stating he was afraid.
Social worker Phillips met with mother on June 2, 2016, at the department offices. Phillips asked mother why she had not called about the May 31 incident. Mother responded that she thought the department would find out because B.C. was taken to juvenile hall.
On June 6, 2016, social worker Look discussed the incidents of May 29 and 31 with mother. Look asked mother about the history of domestic violence with father; mother stated there were " 'no charges.' " Mother stated B.C. had been " 'cutting herself' " and had been diagnosed with posttraumatic stress disorder resulting from a molestation. When asked if she was concerned with father's "discipline" of B.C., mother stated "no."
Mother claimed B.C. " 'wanted CPS to take the kids.' " Mother also claimed that B.C. " 'got in her father's face.' " When shown pictures of B.C.'s injuries, mother " 'couldn't believe it had got to that point.' " Mother claimed " 'this whole situation happened' " because B.C. wanted to reside with her aunt.
B.C. reported other incidents of abuse to Deputy Routh. B.C. reported that in 2015, her parents and others were being very loud and she could not sleep. When she asked them to be quiet, father came up to her room and hit her several times with a belt; grabbed her by the neck; and pushed her against a wall. Father told B.C. he would " 'beat the shit out' " of her. B.C. told one of her friends about the incident; the friend saw the bruises.
B.C. told Deputy Routh that father has hit her "many times," but last year was the first time he had left marks on her. B.C. said she tries to stay out of trouble and avoid her parents. B.C. said mother has also physically punished her, including hitting her in the head and breaking a "paddle board" on her. B.C. said father has hit mother multiple times.
B.C. told social worker Look that the other children were not hit as frequently or severely as she was. Father yells and screams at the other children when they are in trouble; father has hit T.C. with a belt. B.C. and her siblings hear their parents fighting because it can be heard throughout the whole house. The siblings are afraid of father and father makes the brothers cry. B.C. did not want her siblings to grow up thinking that the way father treats mother is the proper way to treat a woman.
On June 6, 2016, the department filed a section 300 petition alleging that B.C. came within the provisions of section 300, subdivisions (b) and (c). That same day, the department filed petitions alleging that T.C., J.C., and C.C. came within the provisions of section 300, subdivision (b). The juvenile court issued protective custody warrants for all the children.
At the June 7, 2016, detention hearing, counsel were appointed to represent mother, father, and the children. Mother and father asked that the three younger children be released. Mother's attorney and father's attorney blamed the incidents on B.C., calling her an "out-of-control teenager." The juvenile court denied the request and ordered the children detained. T.C., J.C., and C.C. were taken into protective custody on June 7, 2016.
After the detention hearing, social worker Look met with mother to discuss a case plan. Mother denied that any domestic violence ever occurred between her and father. When Look pointed out that mother had told law enforcement about domestic violence, mother did not respond. Mother claimed she could not intervene to stop father from hitting B.C. with the belt because grandmother was in the way.
Social worker Look also met with father. Father claimed B.C. was out of control and "all this started" because B.C. would not listen to him or mother. When Look discussed the case plan with father, father indicated he "always felt he did the right thing." Look advised father the case plan would require him to participate in domestic violence as a perpetrator and physical abuse as a perpetrator classes. Father appeared "somewhat frustrated" with the case plan.
On June 10, 2016, a supervised visit between mother and the three younger children was facilitated. The visit went well. Subsequent supervised visits also were reported to have gone well. The three younger children were staying with their maternal grandmother pending formal placement.
On June 11, 2016, B.C. told a social worker she was unwilling to visit her parents; seeing them in court had given her a panic attack. B.C. would be a senior in high school and would have enough credits to graduate in December. B.C. told the social workers that tension and domestic violence had existed between her parents for as long as she could remember. The maternal grandmother would not allow B.C. to speak with her siblings and blamed B.C. for the department's intervention. B.C. stated the claims that she was out-of-control were false. Prior Incidents
On January 10, 2002, father was arrested for assault with a deadly weapon and conspiracy to commit a crime. On November 11, 2002, father participated in an attack on his brother's ex-girlfriend. Father and his brother entered the ex-girlfriend's apartment, and when father became upset, he began punching the ex-girlfriend in the face and head.
On October 5, 2008, police were dispatched to mother and father's residence after a 911 call. Father came home after being out drinking. He swung a baseball bat at the wall, punching a hole in it, and threw a box fan at the wall. Father then grabbed mother by the hair, shook her head around, and punched her in the face with a closed fist. When father was arrested for this incident, he denied any knowledge of how mother was injured. Mother did not want an emergency protective order.
During his arrest for the October 5, 2008, incident, father also denied having any firearms in the residence. The responding officer spotted a shotgun in the home, after which father admitted there were other weapons on the premises as well. Father subsequently pled no contest to a violation of Penal Code section 12021, subdivision (c)(1) possession of a firearm within 10 years of conviction.
In an incident not reported to law enforcement, the family was living with the paternal grandmother and B.C. could hear her parents fighting. B.C. could hear father hitting mother, so B.C. ran down the hall and screamed at father to stop. Father told B.C to go back to her room, and mother did not call law enforcement.
On May 30, 2010, mother and father were arguing and engaging in a physical struggle over J.C. Father began to walk out of the apartment holding J.C. when mother threw an object at father but instead striking J.C. in the leg. The Kern County Department of Human Services (department) investigated a referral stemming from this incident. The department substantiated an allegation of physical abuse of J.C.
Mother admitted to the social worker that the children were present when she and father were arguing, and she threw an object at father on May 30, 2010. Mother denied any history of domestic violence between her and father. Father also denied that there was domestic violence in his marriage, but admitted he and mother had problems because they had "a lot of children and money is tight." The social worker cautioned mother and father that the children possibly would be placed in protective custody if another incident of domestic violence were to occur. Jurisdiction and Disposition
A social worker met with mother and father on July 28, 2016, to review progress in their case plans. Mother and father stated they both were attending classes. Mother stated she realized she needs to sign up for a failure to protect class because it was not included as part of the parenting class she was attending. Mother was able to articulate some of the discipline strategies she learned in her class. Father could not articulate what he had learned and was trying to figure out what he had done wrong.
The department arranged for supervised visits between B.C. and her siblings. For the first arranged visit, the maternal grandmother failed to bring the siblings for the visit; B.C. was upset and cried. A second visit was arranged and went well.
On August 17, 2016, the department received a report that mother had attended seven domestic violence as a victim classes and was expected to complete the course on December 20, 2016. Mother also had attended nine parenting classes and was expected to complete the classes on October 17, 2016. Father had attended seven of 15 classes on physical abuse as a perpetrator and it was expected he would complete the classes on December 13, 2016. Father had attended 14 of 52 domestic violence as a perpetrator classes; no expected completion date was listed.
The disposition hearing was held on August 29, 2016. The attorneys representing mother and father reported on their participation in classes and progress in their case plan.
Counsel for the minors noted that he supported detention of the minors at the initial hearing. Minors' counsel felt that the parents needed to get some insight into domestic violence in the home, and that they were "laying a lot of stuff at [B.C.'s] feet that had nothing to do with [B.C.]." Minors' counsel did not oppose T.C., J.C., and C.C. being returned home on family maintenance if a Court Appointed Special Advocate were appointed.
Father's attorney continued to argue that B.C. was a problem child, and that the three younger children should be returned to their parents. Father's attorney maintained there had been no abuse of the younger children and no actual police report of domestic violence.
The department's counsel argued that there was a long history of domestic violence in the home, and the parents were "very new to disrupting the dynamic that has existed for a long time." The department noted the incident where father hit the wall with a baseball bat; mother previously admitted that father shoved mother and caused her to scrape her elbow; the two recent incidents on May 29 and 31, 2016, that triggered the filing of the section 300 petition; and B.C.'s concerns that tension and domestic violence had been present for as long as she could remember.
Counsel for the department expressed concern that the parents continued to deny the presence of domestic violence in the marriage, indicating they were not accepting responsibility. Counsel noted that when asked by a social worker, father could not articulate anything he had learned in his classes and still did not know what he had done wrong.
The juvenile court agreed with the department's position. The court noted that father expressed frustration when asked to attend classes for perpetrators and noted the parents were attending classes, but did not understand why they needed to attend.
The juvenile court adopted the department's recommended findings and found that B.C. was a dependent pursuant to section 300, subdivisions (a), (b), and (c); and the other children were dependents pursuant to section 300, subdivision (b).
The juvenile court found that mother and father had made minimal progress toward alleviating the issues that triggered the filing of the dependency and removal of the children at detention. The juvenile court found by clear and convincing evidence that there was a substantial danger to the children if they were not removed from physical custody of the parents, and there was no reasonable means to protect the children without removal.
In addition, the juvenile court ordered reunification services and specifically ordered father to complete domestic violence and physical abuse as a perpetrator classes. Mother was ordered to complete parenting, failure to protect, child neglect, and domestic violence as a victim classes. The six-month review was scheduled for February 2017.
Father appealed the removal of T.C., J.C., and C.C. from his custody and the order to participate in family reunification services.
DISCUSSION
Father does not challenge the disposition as to B.C., only as to the three younger children. Father's sole contention is that substantial evidence does not support the juvenile court's order as to T.C., J.C., and C.C. We disagree.
I. Standard of Review
When a parent challenges a dispositional finding, the question is whether substantial evidence supports the finding. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581 [although trial court makes findings by the elevated standard of clear and convincing evidence, substantial evidence test remains the standard of review on appeal].)
In resolving this question, we view the evidence in the light most favorable to the trial court's determination, drawing all reasonable inferences in favor of the determination, and affirm the order, even if there is other evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The appellant has the burden of showing there was no evidence of a sufficiently substantial nature to support the order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
II. Substantial Evidence
Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if there is a substantial risk a 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 ...." (Welf. & Inst. Code, § 300(b)(2).) "A jurisdictional finding under section 300, subdivision (b) requires: ' "(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the child, or a 'substantial risk' of such harm or illness." [Citation.]' [Citations.]" (In re James R. (2009) 176 Cal.App.4th 129, 135.)
As relevant here, before the juvenile court may order a child physically removed from his or her parent, it must find by clear and convincing evidence that the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. (§ 361, subd. (c)(1).) A removal order is proper if it is based on proof of parental inability to provide proper care for the child and proof of a potential detriment to the child if he or she remains with the parent. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 (Diamond H.), disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
The parent's level of denial is an appropriate factor to consider when determining the risk to the child if placed with that parent. (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"].) The parent need not be dangerous and the child need not have been harmed before removal is appropriate. "The focus of the statute is on averting harm to the child. [Citation.]" (Diamond H., supra, 82 Cal.App.4th at p. 1136; see also In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)
Here, the record indicates that father lacked adequate parenting skills, as demonstrated by his inappropriately punishing B.C.; his failure to acknowledge the domestic violence in the marriage and its impact on the children; his failure to acknowledge that he played any role in the filing of the section 300 petition; and his failure to acquire insight, as of the date of the disposition hearing, from the classes he was ordered to attend. There is no indication that father's parenting skills had improved measurably between the time of the jurisdictional hearing and the dispositional hearing.
At disposition, father was still maintaining he had done nothing wrong. There was no acknowledgement by father that he had acted inappropriately and triggered the filing of a section 300 petition. He continued to argue that B.C. was a "problem child." Father's method of "disciplining" B.C. was inappropriate.
Moreover, evidence of past conduct is probative of current conditions, particularly where there is reason to believe that the conduct will continue in the future. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Unless father gains insight and better parenting skills, and ceases to engage in domestic violence and physically abusive discipline, there is no current assurance that father will not transfer his anger and abuse to another child in the home with B.C. no longer living at home.
It was reasonable for the juvenile court to make the ruling it did in light of father's past behavior, his failure to assume full responsibility for his actions, his lack of insight from the classes he had attended, and the fact that he still had numerous classes to attend to address his domestic violence as a perpetrator. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) "The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion. [Citations.]" (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.)
Father had demonstrated an inability to parent successfully and the juvenile court was justified in removing the children from father's custody unless and until father acquired the skills necessary to parent properly and to protect his children adequately.
DISPOSITION
The disposition order is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.