Opinion
A147252
05-16-2017
In re A.G. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. E.M. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. 4692DEP & 4693DEP)
Amy B. lost custody of her children, Son, now age nine, and Daughter, now age seven, at the disposition of a dependency petition based on domestic violence between Amy and E.M., Daughter's father, who also lost custody of Daughter. Amy appeals the jurisdiction orders under Welfare and Institutions Code section 300, subdivisions (b) and (c) on grounds of insufficient evidence that the children have suffered or are at a "substantial risk" of suffering "serious physical harm or illness" (§ 300, subd. (b)) or "serious emotional damage" (§ 300, subd. (c)) as a result of the domestic violence. Both parents appeal the removal orders, claiming there was insufficient evidence of "substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home . . . ." (§ 361, subd. (c)(1).) E.M. claims the removal orders were erroneous as to him because it was Amy who historically had been guilty of domestic violence, not him.
Because both children lived with Amy and E.M., and Son considered E.M. to be his father, we refer to Amy and E.M. collectively as "parents."
Further statutory references, unless otherwise indicated, are to the Welfare and Institutions Code.
E.M. also claims the court erred in ordering him to participate in a drug assessment because there was no substantial evidence he had a drug problem. At respondent's request, we take judicial notice that the order was later withdrawn by the court (Evid. Code, §§ 452, 459), and its propriety is now moot. (See In re N.S. (2016) 245 Cal.App.4th 53, 57-63.)
We affirm the jurisdiction and disposition orders based on substantial evidence that both parents' participation in domestic violence resulted in "severe emotional damage" to the children (§ 361, subd. (c)(3); see also, § 300, subd. (c) ["serious emotional damage"]), and the threat of continued emotional damage persisted despite the couple's professed efforts to separate from one another. Finding the disposition orders supported under section 361, subdivision (c)(3), we need not discuss their validity under section 361, subdivision (c)(1).
I. BACKGROUND
E.M. and Amy were involved in a domestic relationship for 11 years when the dependency was initiated, having met while both were working in the construction trades. For the most recent year or two, however, they had not been romantically involved. Amy had a new boyfriend, but she continued to live with E.M. Amy is the mother of Son and Daughter. E.M. is the biological and presumed father of Daughter, and the children both lived with Amy and E.M. when the petitions were filed. James H. is the biological and presumed father of Son and has also been a close friend of E.M.'s for nearly 40 years. He allowed Amy and E.M. to raise Son in their home while visiting Son approximately twice a week. The children also have adult half-siblings, including a 25-year-old half- sister named Alexandra (Amy's daughter). No one disputes that E.M. was a good provider for the family.
E.M.'s opening brief indicates he is the presumed father of both children, but the record shows he is the presumed father of Daughter only, while James H. is the presumed father of Son.
Amy and E.M.'s domestic relationship had been punctuated by violence almost from the beginning, with each partner having inflicted violence on the other. On five police-involved occasions between 2004 and 2012, Amy had been the aggressor, and most often E.M. was the victim. The immediate circumstances that brought the children before the court, however, involved assaults by E.M. against Amy.
On August 3, 2015, the police received a report of domestic violence between Amy and E.M. Alexandra, who was very active in the children's lives, had taken the children to an A's baseball game on August 2, 2015. She dropped them back at their house at about 7:00 p.m. The next day Alexandra was called to pick up the children early from the Boys' and Girls' Club because Son had been acting out. The children told Alexandra that after they returned from the baseball game the night before, they witnessed their father pull their mother's hair ("drag [their] mom by her hair") and then hit her, and they were kept awake all night by their parents' arguing.
E.M., whose name was on the lease, was being evicted by their landlord, and E.M., in turn, was evicting Amy. When asked about the incident, Amy said she was asleep on the couch when she was awakened by E.M. pulling her hair and speaking incoherently. She thought E.M. was under the influence of drugs or alcohol because he "wasn't acting right." She pushed him away, he left, and she went back to sleep. Amy claimed she had no injuries. Amy also said there had been an altercation earlier in the evening in which E.M. had pushed her into the front yard and threatened to assault her.
E.M. told the police he and Amy had argued inside the house when he accused her of taking his cell phone, but "that's it." He denied hitting or touching Amy. At Amy's request, the officer issued an emergency protective order against E.M.
When the officer interviewed the children, Son told him he saw E.M. hit Amy the day before, after his parents argued in the backyard. Daughter heard a lot of yelling, but did not see the attack. Son told the officer that Amy was yelling at E.M. and "they were calling each other bad names." E.M. became "even angrier," jumped over the fence that divided the backyard from the driveway, and began to "attack" Amy. E.M. eventually walked away but they continued to yell at each other, and the children were awakened the next morning by the parents' yelling.
On August 19, 2015, Amy called the police to the family home, explaining that after E.M. evicted her he allowed her to move back in. She said E.M. had attempted to pull some paperwork away from her and punched her right arm with his fist. The officer noted a red mark about the size of an adult fist on Amy's right bicep.
E.M. then returned home, appearing "agitated." When asked what happened, E.M. said Amy had called him a "nigger" and hit him, so he backhanded her arm "in frustration due to the name calling." The police arrested E.M. and issued an emergency protective order at Amy's request. E.M. was booked into jail for corporal injury to a cohabitant. (Pen. Code, § 273.5, subd. (a).) The case was referred to the district attorney's office for prosecution.
The next day, social worker Heather Woldemar, went to the house to interview Amy, who said she was "tired of being physically abused and harassed." Amy acknowledged that she and E.M. had "on-going physical altercations" and there was a "lot of physical abuse" in their relationship. Amy had no plan to keep the children safe after E.M. was released from jail, which was due to occur the following day. She reluctantly agreed to have her sister take the children temporarily, but she failed to return phone calls or otherwise to help implement the safety plan. Woldemar was forced to get an emergency protective order to place the children with Amy's sister.
Woldemar met with the children twice, and both spoke of witnessing domestic violence, with Son talking about the hair-pulling and Daughter saying she had seen E.M. "hit" Amy. They both described being scared after their parents' confrontations and drew pictures of their parents' violent encounters. Daughter later also reported to a different social worker, Sabrina Coyle-Johnson, that her mother once brought four men to the house who beat up E.M., and E.M. confirmed the story. Despite the foregoing evidence, E.M. continued to deny there was any form of domestic violence in the home.
On August 24, 2015, the Sonoma County Human Services Department (Department) filed a dependency petition on behalf of eight-year-old Son and six-year-old Daughter. The petition for Son alleged, pursuant to section 300, subdivision (b), that Amy had a "propensity for domestic violence," which placed Son at risk, and his father, James H., had failed to protect him. The petition for Daughter did not include an allegation about Amy's propensity for violence, but only alleged E.M.'s domestic violence and Amy's failure to protect Daughter. Both petitions contained specific counts under subdivision (b) alleging E.M. engaged in domestic violence on August 2 and 19, but both alleged these were "not isolated incident[s]." Both petitions also contained allegations under section 300, subdivision (c), that the children had suffered "emotional damage" because of their parents' conduct. The court detained the children.
The Department later struck the allegation against James H. for lack of evidence that he knew the extent of the problem.
On September 15, 2015, the Department filed its Jurisdiction/Disposition Report. The report noted that Amy and E.M. had substantial child welfare history starting years earlier with their now-adult children, including several substantiated physical abuse referrals for E.M. for the abuse of other children. The Department had also offered voluntary family maintenance services for the benefit of Son and Daughter three times since 2012, but the parents declined those services each time. The parents also had criminal histories. E.M. was convicted of battery in 1998 and willful cruelty to a child in 1999 and stood accused of a domestic violence offense against Amy, and Amy had two prior convictions for driving under the influence in 2006 and earlier convictions for assaultive offenses.
When interviewed on September 1, 2015, Amy confirmed the allegation of the petition regarding E.M.'s assault on her on August 2 but minimized the effect of the violence on the children. With respect to the August 19 allegations, Amy told Coyle-Johnson she had been the "victim throughout her relationship" with E.M.
E.M. denied the allegation that he dragged Amy by the hair. As to the August 19 incident, he told Coyle-Johnson "he went to grab the newspaper, and when [Amy] went to grab it back he swatted her arm away," but he accidentally made contact and left a small bruise. E.M. confirmed that Amy gets angry often and they do argue "steadily." E.M. became emotional and left the interview when confronted with the allegation that the children were suffering emotional damage. Coyle-Johnson noted that both Amy and E.M. were "very guarded" during their interviews and provided "minimal" information.
James H., Son's biological father, claimed he was not aware of the domestic violence in the home but agreed that Amy and E.M. had a "very dysfunctional relationship." He also noted that the tension in Amy and E.M.'s relationship had increased over the past four months because E.M. had been using drugs, had lost his job, and they were being evicted.
Coyle-Johnson reported that both children would like to live with their mother, but they "want the fighting and yelling to stop." Yet, as of mid-September, Amy had visited the children only once since they were detained and E.M. had not visited at all. Coyle-Johnson concluded the children were not safe in the care of Amy and E.M. due to the "consistent and chronic exposure to aggression and violence in the home" and "a pattern of substance abuse and mental illness" in Amy.
Still, the parents failed to see a problem. Coyle-Johnson offered numerous services to Amy, including drug and alcohol treatment, individual therapy, and domestic violence groups, all of which Amy declined on the basis that she needed no help in those areas. E.M. continued to have hostile interactions with Coyle-Johnson and failed to contact any of the service providers for recommended services.
After spending some time together in a foster care facility, in late October, Son was placed with his father, James H., and Daughter with her paternal aunt. A month after being placed with James H., Son was receiving weekly counseling, intensive services, and his "negative behaviors" were reduced. The school had completed testing and was scheduling an Individualized Education Plan meeting for him. Daughter also was adjusting to her placement with her aunt. Her aunt reported that initially Daughter suffered from frequent night terrors, but those had decreased with interventions. Daughter was receiving counseling weekly.
At the outset of the contested jurisdiction and disposition hearing the court took judicial notice of the court file and the Department's reports, and the Department presented no witnesses. Coyle-Johnson, testifying as an expert in social work, was called for cross-examination by the parties. She testified about incidents of domestic violence between Amy and E.M. during their relationship that had involved the police, in which Amy had been the aggressor, and one in which Amy directly threatened Son, as described below. She noted both children were in therapy to address the effects of domestic violence, but the parents failed to realize its harmful effects. Amy believed the violence affected the children in the moment but not afterwards. The parents continued to live together and Amy had refused an offer of housing assistance.
E.M. also testified and minimized the severity of the domestic violence, insisting he was "just playing around" when he hit Amy in the arm, and "just kidding around" when he "grab[bed] some of her hair" in the earlier incident. E.M. acknowledged he and Amy were still living together.
Amy testified that on August 2, 2015, E.M. had pulled her hair while she was sleeping on the couch, causing her to wake up, but she minimized the severity of the incident. She also acknowledged she called the police later in August when E.M. punched her in the arm. Still, she testified she did not believe the children were damaged by witnessing the incidents or the police response to them. Amy admitted she and E.M. continued to "live in the same house," but said she intended to move. Amy also felt counseling and parenting classes were "unnecessary," and she did not need domestic violence counseling because that was not an issue in her house. The children's attorney expressed concern that E.M. and Amy were still living together, after trying to separate in August, and took the position the children would not be safe if returned home.
On December 15, 2015, the court found the children came within subdivisions (b) and (c) of section 300 and declared them dependents of the court. It ordered Son removed from Amy's custody and placed with James H., with family maintenance services. Daughter was also ordered removed from both parents, with custody committed to the Department, and placed, apparently, with her paternal aunt. Amy and E.M. were offered reunification services.
II. DISCUSSION
A. There was Substantial Evidence to Support Jurisdiction Under Section 300 , Subdivisions (b) and (c) Based on Repeated Exposure to Domestic Violence.
Amy claims the jurisdiction and disposition orders were without substantial evidentiary support because there was no substantial evidence of (1) her alleged propensity for domestic violence, or (2) resulting emotional harm to the children. She claims the domestic violence was sporadic, the two incidents alleged in the petition were attributable to violence by E.M., not her, and there was no proof the domestic violence threatened the children's future physical or emotional well-being.
Two subdivisions of section 300 were alleged as the basis for jurisdiction in the petition: subdivision (b), which authorizes jurisdiction over a child at risk of "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," and subdivision (c) which authorizes jurisdiction over children afflicted with actual or threatened "serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent." Under subdivision (b) the petition alleged the two incidents of domestic violence by E.M. in August 2015 (and Son's petition alleged Amy had a "propensity for domestic violence"), which placed both children at risk of "serious physical harm or illness." Under subdivision (c), the petition alleged that both children had experienced "fear and anxiety," followed by recitation of specific things each child had said or done to evidence such fear and anxiety. (§ 300, subd. (c).)
The Department was required to prove its jurisdictional allegations by a preponderance of the evidence, and we review the court's jurisdictional and dispositional orders for substantial evidence. (In re A.S. (2011) 202 Cal.App.4th 237, 244.) The Department more than adequately carried its burden.
Contrary to the parents' arguments on appeal, each blaming the other for the violence and insisting it happened only in isolated incidents, the couple's history shows the violence was chronic and reciprocal. Although the specific allegations in the petition referred to incidents of violence by E.M., there was also evidence of violence by Amy, arguably more serious than E.M.'s. As James H. observed, "Amy is a really violent person, always cussing at people and spitting on you. I don't think [E.M.] is violent to Amy; I think Amy is more violent to [E.M.]."
On August 7, 2012, E.M. called the police to their home, and reported that Amy, while intoxicated, had become violent and had scratched, bit and hit him and ripped off his shirt. The officer noted that both children were present and Amy was very intoxicated. She was upset and angry and gave conflicting stories. Amy was arrested, which angered E.M., but no charges were pursued.
Alexandra said her mother suffered from depression and alcoholism. Amy admitted she used to struggle with alcoholism, but she had given up hard liquor and felt her addiction was under control because she only drank beer daily. Coyle-Johnson contradicted that opinion, testifying that Amy had an alcohol abuse problem and needed counseling and substance abuse treatment.
On October 9, 2012, the police were again summoned to the family's home because Amy was acting irrationally. She had a butcher knife, had threatened to harm the children, and was barricaded in the home. E.M. had been able to get Daughter to climb out a window, but Son was still in the house with Amy. She was threatening to stab him and break his neck. When the officers entered, Amy was agitated, hostile and confused. The police placed Amy on a hold under section 5150. The police reported the incident to Department, which offered voluntary family maintenance services, but the parents refused to accept help. The Department scheduled family team meetings with the parents, but the parents failed to show and the case was closed.
In addition, the Department received referrals for the children in February and August 2014 and in May 2015 for neglect and emotional abuse stemming from the parents' failure to properly treat Daughter's eczema (leaving her socks "caked with blood and pus"), for "whooping" Son and screaming at the children, and for Amy's frequent "rages." In each instance, the parents refused to cooperate with an investigation and refused services.
Police reports showed additional incidents of violence by Amy in 2004, 2006 and 2008, with E.M. identified as the victim in two incidents and James H. as the victim in the third. In one incident Amy was referred for charges of domestic violence offenses, in another she was arrested for vandalism and criminal threats, and in the third the police issued a stop and hold warrant for her based on domestic violence.
Putting aside the question of who was the aggressor on any given occasion, ample evidence established that Amy and E.M. frequently engaged in physical confrontations and neither did anything to protect the children from witnessing or being damaged by those conflicts. Amy's failure to make a safety plan for the children was chronicled above. Coyle-Johnson also testified that E.M. had made no effort to protect Daughter after the incidents of violence when Amy had been the aggressor.
"Exposing children to recurring domestic violence may be sufficient to establish jurisdiction under section 300, subdivision (b)." (In re T.V. (2013) 217 Cal.App.4th 126, 134; accord, e.g., In re R.C. (2012) 210 Cal.App.4th 930, 942; In re Heather A. (1996) 52 Cal.App.4th 183, 194 ["domestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk."].) Son told the social worker he was about five feet away from his parents when the August 19 hitting incident occurred. When parents engage in domestic violence in close proximity to their children, there is an inherent risk that the children will be injured if the violence escalates, if one of the parents throws an object, or if the child tries to intervene. That factor distinguishes the case from In re Jesus M. (2015) 235 Cal.App.4th 104, 111-114, where the court reversed a jurisdictional order alleged under section 300, subdivision (b) based on a remote instance of domestic violence, where there was no current threat to the child's physical health and no allegation of emotional harm had been made under subdivision (c).
The evidence showing recurrent domestic violence in the home also supports assumption of jurisdiction under subdivision (c). The statute authorizes jurisdiction even where the children have not yet begun to display signs of "serious emotional damage," so long as there is a "substantial risk" of such damage due to the parent's "conduct." (§ 300, subd. (c); In re D.P. (2015) 237 Cal.App.4th 911, 918-919.) There was substantial evidence to show the conduct of both parents, which alternated between assaultive conduct toward the other parent and failure to protect the children, had already resulted in emotional damage to Son and Daughter and threatened to continue. Accordingly, the Department sustained its burden of proof as to the jurisdictional allegations under section 300, subdivisions (b) and (c).
B. There was Substantial Evidence to Support the Removal Orders.
Amy claims there was insufficient evidence to support jurisdiction or removal because there was no evidence of a causal connection between the domestic violence and any actual or threatened harm to the children. E.M. contends the order removing Daughter from his custody was not supported by substantial evidence because Amy was the violent partner in the relationship, not him.
E.M. argues that both children should be returned to him, but especially Daughter. We note, however, that only Daughter was removed from E.M.'s care. Son has been placed with his presumed father. E.M. is the stepfather of Son, not the presumed father.
1. Removal orders under section 361, subdivisions (c)(1) and (c)(3)
The court ordered the children removed from Amy and E.M.'s home based on subdivisions (c)(1) and (c)(3) of section 361. The parents are correct that the proof required for removal is more demanding than that required for assumption of jurisdiction, as the Department must prove grounds for removal by clear and convincing evidence. (§ 361, subd. (c); In re Henry V. (2004) 119 Cal.App.4th 522, 528-529; In re Basilio T. (1992) 4 Cal.App.4th 155, 169 (Basilio T.).) We review a removal order for substantial evidence, viewed most favorably to the juvenile court's order, supporting the court's findings, bearing in mind the more demanding evidentiary standard. (Henry V., supra, at p. 529; Basilio T., supra, at p. 170.)
E.M. argues there was no substantial evidence to support the court's finding of risk to the children's "physical health" under section 361, subdivision (c)(1), citing In re Isayah C. (2004) 118 Cal.App.4th 684, 697-699 (Ct. App., First Dist., Div. Two). The continued validity of Isayah C. has more recently been called into doubt, and it now appears the risk of emotional harm is sufficient. (See In re J.S. (2014) 228 Cal.App.4th 1483, 1493-1494 [threat to emotional well-being sufficient even under subd. (c)(1)]; In re H.E. (2008) 169 Cal.App.4th 710, 718-723 [Ct. App., First District, Div. Two reassesses Isayah C. and concludes emotional harm is enough]; Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.126[2][b], p. 2-418.) If any ambiguity remains on this point after J.S. and H.E., we need not enter the debate.
Removal is also authorized under section 361, subdivision (c)(3), if the children were "suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian." This was one of two bases relied upon by the juvenile court. Neither parent forthrightly acknowledges the existence of section 361, subdivision (c)(3), much less its significance to this case, but we find it dispositive. Finding evidence of emotional damage to predominate, we address first whether substantial evidence supported the removal order under section 361, subdivision (c)(3).
2. There was a long, documented history of recurrent domestic violence in the home in the presence of the children.
Both parents rely on Basilio T., supra, 4 Cal.App.4th 155, which held the juvenile court erred in removing children from their parents' home based on two police reports of domestic violence in the home. (Id. at pp. 159-160, 170-171.) In Basilio T., the information in the social study concerning the parents' history of domestic violence was "skimpy," and some of the more recent information came from a child whom the court found incompetent to testify, and other prior statements were recanted at trial by an older child. (Id. at pp. 166, 171.)
In Basilio T. only the "physical health" subdivision (then section 361, subdivision (b)(1)) had been alleged as a basis for removal. Indeed, only "physical" impacts were addressed in that subdivision at that time, although section 361, former subdivision (b)(3) allowed removal based on "severe emotional damage." (Stats. 1990, ch. 182, § 7, p. 1307.) Therefore, evidence of risk to the children's "physical health" was necessary to support the petition in Basilio T. (4 Cal.App.4th at pp. 170-171), whereas we look primarily to the risk of emotional damage under section 361, subdivision (c)(3).
Here, in contrast, the domestic violence was well documented with detailed police reports, and insofar as it came from the children, no one has challenged their truth-telling ability. Alexandra's input also provided significant support for the court's removal order based on her description of Amy's frequent exhibitions of uncontrolled anger and her statement that Amy and E.M. argued "daily." She provided examples of the ways in which the fighting affected the children and the care they received from the parents, arguably supporting a finding of physical detriment, and fully supporting a finding of severe emotional damage.
Alexandra said E.M. had the water shut off four months earlier to "get back at" Amy. The children had no running water for two months until Alexandra got it restored. Daughter's eczema also became so severe that she had lesions all over her body that were oozing liquid, causing her clothes to stick to her body. It may be inferred the parents were so preoccupied with their conflicts that they neglected the children.
Amy and E.M. unquestionably had a volatile relationship that frequently erupted into violence in front of the children. Given their oft-demonstrated resistance to accepting help and the ongoing untoward effects on the children, there was substantial evidence to support the trial court's findings under section 361, subdivision (c)(3).
3. The children were suffering "severe emotional damage" caused by the parents' domestic violence.
Coyle-Johnson noted both in her report and in her testimony the tangible, identifiable effects of the domestic violence upon the children. Aside from the children's own accounts of their fear, Alexandra also described the children's visible distress after the hair-pulling incident. The staff at the foster care placement noted that Daughter jumped at loud noises and was easily startled, which Coyle-Johnson called a "hypervigilant response from being in an environment of constant and unpredictable violence her entire childhood." Daughter hid in corners, and "[w]hen she would see her father ready to come visit, she would hide under the table." She had been referred to counseling while still in foster care. Daughter frequently experienced "night terrors" when first placed with her aunt.
The social workers described Son as "quiet and often withdrawn," seemingly suffering from depression, with a "flat affect" and "deflated" emotion. Alexandra confirmed that Son had seemed depressed and withdrawn over the past year, and during the summer he had run away from his parents' house when she tried to drop him off there. For the past two years he had experienced consistent struggles at school with attendance, behavior, and academics. Son walked out of the classroom on a regular basis and refused to return to class. The school counselor reported this did not seem to be a product of anger; Son was sad and withdrawn during these incidents.
Nevertheless, after his detention, Son initially showed extreme aggression. In October 2015, he was suspended from school and became violent in shelter care, necessitating a psychiatric hold under section 5150 to determine if he was a danger to himself or others. Daughter reported, even before their detention, that Son had also begun imitating E.M. by threatening to hit her, and Amy dealt with the problem by "whoop[ing]" him with a belt. Son was seeing a counselor at school and was referred for outside mental health counseling.
After being placed with James H., Son was diagnosed with depressive disorder NOS due to his chronic exposure to trauma. Both children were put into counseling by their current caregivers to address the impact of the domestic violence. There was substantial evidence of a continuing threat to the children's emotional health as required by section 361, subdivision (c)(3).
Still, Amy claims no "nexus" has been shown between the domestic violence and the children's emotional problems. She suggests Son's aggressive behavior and other signs of emotional distress may have been caused by the removal itself, and not by the parents' interpersonal warfare. We disagree.
" ' "Both common sense and expert opinion indicate spousal abuse is detrimental to children." ' [Citation.] 'Domestic violence impacts children even if they are not the ones being physically abused, because they see and hear the violence and the screaming.' " (In re T.V., supra, 217 Cal.App.4th at p. 134; accord, In re R.C. (2012) 210 Cal.App.4th 930, 942.) Coyle-Johnson testified to such a nexus as an expert witness.
Moreover, the connection between the domestic violence and the children's emotional symptoms was self-evident from the children's own expressions of anxiety and fear, which they directly linked to their parents' fights. Son drew a picture of his mother lying on a bed in the "House of Worries," with E.M. standing over her. He explained that E.M. was "pulling [his] mom's hair." Daughter also witnessed an incident in which her father "hit mom." She reported that a few days earlier E.M. had hit her mom when she called him a bad word. Both children said they were scared when their parents argued. Daughter said she ran into her room whenever they fought. She said her dad "always argues" and she often runs into her room. She also drew a picture of her mom making a "mad face" and said her mom gets mad a lot. The parental portrait of violence again was contained in her "House of Worries." She did not draw anything in the house labeled "Good Things," saying there were "no good things."
Alexandra described her mother's combative personality and raging behavior from intimate knowledge. She characterized Amy and E.M.'s dysfunctional relationship as imposing on her younger siblings "emotional abuse." It was clear the parents' domestic violence was at the root of the children's emotional difficulties.
Alexandra left home at age 12 to live with extended family to avoid Amy's "aggressive anger and rages towards her." There had been a referral of Alexandra to child welfare authorities in 1998 because Amy reportedly used drugs, slapped or beat Alexandra, was emotionally abusive, and engaged in sexual activity in front of Alexandra. The investigation was inconclusive. Amy denied the past abuse, saying Alexandra was raised by others because she "didn't like doing chores."
4. There was an ongoing risk of emotional harm even though the parents claimed they were in the process of separating.
Both parents contend the risk to the children in the future is minimal and unsubstantiated because they were in the process of separating at the time of the removal orders. Amy points out there must be an ongoing risk of future harm to justify jurisdiction (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379; In re David M. (2005) 134 Cal.App.4th 822, 829-832), and to support the disposition order, a showing was required that the children's "physical health" or "emotional health" could not be protected without removal. (§ 361, subd. (c)(1) & (c)(3); In re Steve W. (1990) 217 Cal.App.3d 10, 17-23.)
Amy's professed intention to separate from E.M. was not enough to undermine the Department's strong showing that the children were at continuing risk. Amy and E.M. had been in the process of separating since the beginning of August, at least, and yet resumed living together almost immediately. When asked why he continued to let Amy live with him, E.M. responded, "I love her and cannot make her move out." Coyle-Johnson concluded the two were in an "enmeshed and dysfunctional relationship," in which Amy's "volatile and hostile behavior seems to be allowed by [E.M.], which has worked to enable it and has resulted in him becoming violent with her in turn." As long as the parents remained "stuck . . . in their rage and denial," the children remained at risk of future emotional harm.
Amy suggests several less drastic means of protecting the children, such as returning them to her care with careful monitoring by the Department or upon condition that she obtain a restraining order against E.M. This presumes the children's contact with E.M. was the only problem, and it was not. Moreover, any one of her suggestions would have required the parents' cooperation, which could not be relied upon based on their past refusals to cooperate and their persistence in their unhealthy, unconventional relationship and cohabitation.
Because we find substantial evidence of severe emotional damage—both currently existing and threatened moving forward—we affirm the court's removal order under section 361, subdivision (c)(3) without regard to any showing of risk to the children's "physical health" under section 361, subdivision (c)(1). (In re K.S. (2016) 244 Cal.App.4th 327, 342 [even if removal not justified under § 361, subd. (c)(1), removal order could be affirmed under subd. (c)(3)].)
III. DISPOSITION
The court's jurisdiction and disposition orders are affirmed.
/s/_________
Streeter, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Rivera, J.