Opinion
C080653
03-21-2017
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD235717)
Appellants M.R. (mother) and R.F. (father) appeal from the juvenile court's jurisdiction and disposition orders, declaring minor A.R. a dependent of the court and removing him from parental custody. (Welf. & Inst. Code, § 300, 395.)/ They contend there was insufficient evidence to support jurisdiction and removal. They also contend the juvenile court erred in denying mother reunification services. We affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
Although appellant's notices of appeal specify only that they are appealing from the disposition order, notices of appeal are broadly construed. (Cal. Rules of Court, rules 8.100 (a)(2) & 8.405(a)(3); see In re Joshua S. (2007) 41 Cal.4th 261, 272.) Since the dispositional hearing is the first hearing from which an appeal may be taken in a dependency case, this court will also consider appellant's appeal from the earlier jurisdiction hearing as both timely and encompassed in their notices of appeal. (See In re Tracy Z. (1987) 195 Cal.App.3d 107, 112; see also In re Athena P. (2002) 103 Cal.App.4th 617, 624 [jurisdictional order is interlocutory and any challenge made thereto has to be raised in appeal from dispositional order].)
FACTUAL AND PROCEDURAL BACKGROUND
On February 18, 2015, the Sacramento County Department of Health and Human Services (hereafter "the Department") filed a petition on behalf of the child, A.R., who was an infant, pursuant to section 300, subdivisions (b) and (j). The petition alleged, pursuant to subdivision (b), that the child had suffered or there was a substantial risk that he would suffer serious physical harm due to appellants' history of domestic violence, dating back to 2006, which was alleged as ongoing. Father had a history of physically assaulting mother and damaging her home. Father had bailed himself out of jail in December 2013, violated a no contact order by going to mother's home, and started a fight with mother. Instead of seeking to enforce the no contact order, mother hid father from law enforcement and child protective services (CPS) staff. The petition also alleged that the child was at risk because mother had mental health problems that impair her judgment as well as her ability to provide adequate care, supervision, and protection of the child. Mother had a psychological evaluation in 2014 that did not reveal " 'any significant acute psychological distress that would support . . . a diagnosis,' " but the doctor noted " 'what appears to be longstanding and probably enduring patterns of pervasive personality dysfunction that would be expected to be rather resistant to change.' " Mother did not believe she had mental health or psychiatric problems and failed to seek treatment.
Pursuant to section 300, subdivision (j), the petition also alleged that the minor's half siblings had been abused or neglected as a result of appellants' domestic violence and that there was a substantial risk the minor would be abused or neglected, as well. The minor's half siblings were adjudicated dependent children due to appellants' ongoing domestic violence and appellants had failed to comply with the Departments' directives. Mother was ordered to participate in reunification services which included domestic violence counseling, individual counseling, and parenting classes, and had failed to make substantial progress.
Both mother and father had a history of domestic violence with other individuals, prior to their relationship with each other. Mother and father also had extensive histories with CPS, dating back to 2005 and 2001, respectively. Mother reported that she has been in a relationship with father since approximately 2011, although it was not a committed relationship until 2013. Mother told the social worker in or about March 2015 that the domestic violence started in 2011, and that father was verbally, physically, and emotionally abusive throughout their entire relationship.
In September 2013, there was a referral for general neglect of the minor's half siblings, and a report that mother and father were arguing. The half siblings were reportedly screaming and yelling. It was also reported that the police were frequently called to the house.
In November 2013, there were two reported incidents of domestic violence between appellants. On November 7, 2013, law enforcement responded to mother's home after father had become angry and gotten "out of control." Father had taken mother's identification and bank cards and stabbed the tires on her bicycle. He had come over the night before, despite mother having a restraining order against him. Mother had let him in and let him spend the night. On November 30, 2013, law enforcement responded to mother's home in response to a call about appellants fighting. Mother claimed there had been no dispute or argument. Law enforcement did a records check and discovered a court order that prohibited father from being within 100 yards of mother, effective until August 1, 2015. Father was arrested for violation of the court order.
On December 7, 2013, mother reported to law enforcement that she woke up to find father in her house. She was not aware he had been released from jail. He began yelling and throwing things around the house. He told her he was going to bring the wrath and was going to take his son (D.F., whom mother was raising) if she did not stay with him. She tried to block the doors to protect herself but father threatened to break the windows, so she let him in and let him stay. She admitted that she did this when he came to the home because she could not afford for him to break anything else. Father had broken all of the doors in the house, broken the front windows, and punched holes in walls. She reported she was being evicted because of the domestic violence. She said she and father got into arguments just about every day. She said, "I can't tell you how many times he has hit me. He doesn't hit me every time, but most of the time it gets physical and he hits me." Law enforcement found father's son (D.F.) hiding behind a broken door. He was scared and began yelling. Mother's two daughters were also in the home. All three children were upset and fearful. Father was arrested for violation of a domestic violence restraining order.
The following day, law enforcement and CPS returned to mother's home because they learned father had bailed himself out of jail. Mother delayed 20 minutes before answering the door. Household items were strewn about the home and father was seen outside walking around the corner. It was later determined that father had gone to mother's home and started another fight. Mother had hidden father in her attic. Section 300 petitions were filed on behalf of father's son (D.F.) and mother's two daughters.
On February 20, 2014, father was convicted of violating a protective restraining order. On that date, the trial court issued a three-year no contact order, prohibiting contact between father and mother. Father was released from custody on March 28, 2014. Mother said she was scared and went to her brother's house in an attempt to hide from father. Immediately upon his release, father came to her brother's house and raped her. Thereafter, on or about April 21, 2014, mother willingly had sex with father and another man.
In April and May of 2014, mother's two daughters were adjudicated dependents of the court based, in part, on appellants' history of engaging in domestic violence. Mother was ordered to participate in a psychological evaluation, individual counseling, domestic violence counseling, parenting classes, and drug testing. The domestic violence services specifically indicated her counseling was to address what role domestic violence played in the dependency case, the effects of domestic violence on her children, her pattern and history of domestic violence with the current, as well as past, perpetrators, and how she is utilizing, or will utilize, domestic violence prevention strategies in her relationships to ensure safety for her and her children. Mother, however, failed to have any contact with the social worker, or with her daughters, from February 2014 to August 2014.
Minor A.R., the subject of the instant petition, was born at the end of January 2015. He was born at home, "by accident." Mother said she knew she was in labor but "wanted to get beautified before going to the hospital," including bathing and painting her nails. She was by herself, in the bathtub, when she called 911. The minor was detained, and a section 300 petition was filed on February 18, 2015.
In March 2015, father was determined to be the minor's biological father. After being so informed, father continued to refuse to communicate with the social worker, refused to provide the social worker with his address, failed to appear for his scheduled interview and assessment of services, and failed to respond to the social worker's request to reschedule.
Mother did, however, begin participating in services in the open dependency case regarding her two daughters. She participated in domestic violence counseling through Women Escaping a Violent Environment (WEAVE), in-home parenting classes for seven weeks, and drug testing. The in-home parenting facilitator, however, was unclear as to what the issues were because mother had represented that she had "voluntarily surrendered the girls because [she] was homeless" and that they were going to "be returned to her care now that she had a residence." The facilitator asked mother to bring in the disposition report but mother did not do so.
Mother also attended four individual counseling sessions between February and April of 2015, and one session in June 2015, but she failed to attend five sessions and additional appointments had not been scheduled. She completed a parenting class in June 2015 but the social worker noted that the class focused on children ages six to 18, and minor A.R. was less than a year old. Mother did not attend the infant parenting classes.
Despite mother's participation in services, mother continued to maintain a relationship with father. On January 22, 2015, appellants were seen arriving together for a visit with one of father's other sons. A friend reported that, since his return to town in May 2015, appellants continued to arrive and leave together when visiting him at his house. Also in May 2015, mother sought and received a modification of the no-contact order to permit contact between herself and father, and which father reported would allow them to live together. On June 30, 2015, the juvenile court terminated services for mother and her daughters.
Father has more than 20 children.
In early July 2015, mother told the social worker that she is still scared of father. But later that month, mother contacted WEAVE to inquire about couples counseling for herself and father.
Mother missed six appointments for her two court-ordered psychological evaluations, stating she was refusing to participate because she "is not mental." She had, however, participated in an earlier November 2014 psychological evaluation with Dr. Wilkenfield at Scripps Psychological. Dr. Wilkenfield expressed concern that mother's "ability to function adequately in a parental role [has] to do with what appears to be a longstanding and probably enduring pattern of pervasive personality dysfunction that would be expected to be rather resistant to change." Although she was not assigned a "full blown personality disorder," Dr. Wilkenfield said mother is "a very [n]arcissistic individual who shows little empathy for others, believes she is entitled to some sort of special status and would likely continue to have difficulty placing her children's well[-]being and needs before her own on any sort of a consistent basis."
Finally, on October 9, 2015, mother participated in a court-ordered psychological evaluation. Dr. Moazam had a generally favorable prognosis as to mother's ability to benefit from services based on the information mother self-reported and his review of some records. However, he stated that prolonged contact with mother may be necessary in order to have sufficient information to make a comprehensive evaluation. One fact upon which he relied was mother's report "that she learned so much from County services such as WEAVE and parenting classes. She stated that her relationship with her boyfriend is completely done and she needs to be careful of her choices for men."
Dr. Moazam's preliminary assessment did not reveal to him significant acute psychological distress that would support a diagnosis of a major mental disorder. However, he assessed her as having a "pervasive pattern of self-defeating behavior in that she may often undermine positive experiences (be drawn to relationship or situation in which she will suffer) and prevent others from helping her." One test indicated that mother has limited social judgment and social skills that leave her prone to fail tasks crucial to her personal objectives despite demonstrated ability to do so, and that she seems to choose alternatives that lead to disappointment or failure, or mistreatment in the past, even when better options were clearly available.
Mother testified at the disposition hearing in the instant case, which began on October 26, 2015. She initially denied there was ever any physical abuse in her relationship with father. Eventually, she admitted some physical abuse but claimed the sum total consisted of two events—one where father grabbed her arm to get her attention while they were walking down the street and another where one of the kids "somehow got pushed out of the way" when mother and father were arguing. She testified she had voluntarily engaged in a domestic abuse program, DVAS Plus, which focused on her healing as a victim. She had attended the weekly program nearly every week for four months. She also testified that she had attended additional individual counseling sessions and by the time of the hearing had, to the best of her recollection, attended 11 sessions. Mother explained that she revoked her previously signed release of information form because the social worker only asked for negative information, which does not make her feel good.
When asked how her situation differs from the day the juvenile court terminated her services for her two daughters, mother replied: (1) she has a different social worker; (2) she "wasn't as far" then as she is "today," did not have "as much in-depth information on what domestic violence was," and she did not trust anyone back then; and (3) she is "going to persevere" in getting minor A.R. back now, as well as her daughters, and do what she needs to do to get them back.
The juvenile court declared minor A.R. a dependent child of the court, removed him from mother's custody, and found placement with father would be detrimental to the minor. The juvenile court then ordered reunification services for the father but denied reunification services for mother. (§ 361.5, subdivision (b)(10).)
DISCUSSION
I
Jurisdiction
Appellants contend the jurisdiction order must be reversed because there was insufficient evidence to support the finding that the minor came within section 300, subdivision (b) or (j) at the time of the jurisdiction hearing. Specifically, they claim the evidence did not support a finding of an ongoing risk of harm to the minor, because there were no current reports of domestic violence. They also contend there is insufficient evidence that mother's mental health problems place the minor at risk. We conclude substantial evidence supports jurisdiction under section 300, subdivisions (b) and (j).
" 'When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.' [Citation.]" (In re I.J. (2013) 56 Cal.4th 766, 773-774.)
Section 300, subdivision (b) provides for jurisdiction when the minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness as a result of the failure or inability of the parent to adequately supervise or protect the minor, or by the willful or negligent failure of the parent to provide the minor with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent to provide regular care for the minor due to the parent's mental illness or substance abuse. (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319.)
"Subdivision (j) applies if (1) the child's sibling has been abused or neglected as defined in specified other subdivisions and (2) there is a substantial risk that the child will be abused or neglected as defined in those subdivisions. [Citation.] . . . [¶] Unlike the other subdivisions, subdivision (j) includes a list of factors for the court to consider: 'The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.' [Citation.] 'The "nature of the abuse or neglect of the sibling" is only one of many factors that the court is to consider in assessing whether the child is at risk of abuse or neglect in the family home. Subdivision (j) thus allows the court to take into consideration factors that might not be determinative if the court were adjudicating a petition filed directly under one of those subdivisions. [¶] The broad language of subdivision (j) clearly indicates that the trial court is to consider the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm, within the meaning of any of the subdivisions enumerated in subdivision (j). The provision thus accords the trial court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance.' [Citation.]" (In re I.J., supra, 56 Cal.4th at p. 774, italics omitted.) Both subdivisions, (b) and (j) of section 300, apply here.
Exposure to domestic violence in the home places children at risk and forms a basis for removal, even if the violence is not directed specifically toward them. (In re Heather A. (1996) 52 Cal.App.4th 183, 192, 195 ["because [the children] see and hear the violence and the screaming"]; see also In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 ["Both common sense and expert opinion indicate spousal abuse is detrimental to children"]; Guardianship of Simpson (1998) 67 Cal.App.4th 914, 940 ["Domestic violence against a spouse is detrimental to children"].) Since children can be harmed by an errant punch or thrown object, "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." (Heather A., supra, 52 Cal.App.4th at p. 194, italics omitted.) The children could be physically injured by reason of their proximity to the parents' fighting. (Ibid.)
Appellants claim jurisdiction was improperly taken because the risk of harm from domestic violence was no longer present by the time of the jurisdiction hearing, as no instances of domestic violence had been reported since December 2013—which resulted in the finding of abuse or neglect of the minors' half siblings. But " 'a measure of a parent's future potential is undoubtedly revealed in the parent's past behavior with the child.' " (In re Jasmon O. (1994) 8 Cal.4th 398, 424, quoting In re Laura F. (1983) 33 Cal.3d 826, 833.) Such is the case here. No events or actions subsequent to the last report of domestic violence have taken place to suggest the risk of harm had been eliminated by the time of the jurisdiction hearing. Father's steadfast refusal to participate in any services and mother's halfhearted participation suggest directly to the contrary.
Appellants' long history of domestic violence, was central to the prior dependency with mother's daughters. Father threatened and hit mother regularly, destroyed property, and frightened the other children in the home to the extent that they were discovered by law enforcement to be screaming, yelling, and hiding. Mother had engaged in various services designed to address this problem for 18 months. During and after this time, mother remained in a relationship with father, which she attempted to hide from the Department. She requested the order of protection be lifted, intentionally removing the only means of protection for her and the minor from an individual (1) she knows to have a long history of domestic violence (with her and others); (2) who recently raped her; and (3) who has not since participated in any domestic violence services that might suggest he could have sufficiently rehabilitated so as to no longer pose the threat of her previous experience.
Despite the known threat to her and the minor, mother continued to seek contact with father and maintain a relationship with him. Shortly after having the protective order lifted, she said she was still afraid of father—but then requested "couples counseling." Even as late as October 2015, mother continued to deny and minimize the domestic violence, and to protect father. "[D]enial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision." (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)
There is no reason to believe the risk posed by appellants' domestic violence was eliminated or that appellants' future behavior would differ from their past. Mother's continued denial and minimization of the domestic violence demonstrates a continued risk to the minor.
In sum, mother's actions and testimony demonstrate her continued lack of insight, denial, and minimization as to how unsafe the relationship is to her and the minor. Even if no additional instances of domestic violence between appellants have been reported since the December 2013 instances and the March 2014 rape, the risk remained current because the clear risk has never been alleviated.
Accordingly, we conclude substantial evidence supports the juvenile court's jurisdictional findings based on appellants' history of domestic violence under both subdivision (b) and (j) of section 300, as alleged in the petition.
In order to affirm the juvenile court's exercise of jurisdiction, we need find only one of the grounds for jurisdiction relied on by the juvenile court is supported by substantial evidence. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) Thus, we need not address appellants' additional contention that there is insufficient evidence to support the section 300, subdivision (b) allegation that mother's mental health problems impair her judgment and ability to provide adequate care, supervision and protection of the minor as a separate ground for jurisdiction over the minor.
II
Removal
Appellants next contend there is insufficient evidence to support removal of the minor from mother's custody. They argue that the minor was at no risk of substantial danger from the domestic violence. We find substantial evidence supports the juvenile court's order.
The Department argues appellants' have forfeited this issue for failure to object to out-of-home placement in the juvenile court. However, father did specifically object to out-of-home placement and mother did not submit on the social worker's recommendations. Additionally, the contention that a judgment is not supported by substantial evidence is an obvious exception to the forfeiture rule. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) Thus, although appellants focused on the social worker's recommendation that mother be bypassed for services at the contested hearing, the issue of out-of-home placement was not clearly forfeited and we consider the claim on the merits. (Cf. Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813 ["a parent who submits on a recommendation waives his or her right to contest the juvenile court's decision if it coincides with the social worker's recommendation"].)
To support an order removing a child from parental custody, the court must find clear and convincing evidence "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) Although the standard of proof at the disposition hearing was clear and convincing evidence, the reviewing court determines only whether there is any substantial evidence—that is, evidence that is reasonable, credible and of solid value—to support the conclusion of the trier of fact. (§ 361, subd. (c); In re Angelia P. (1981) 28 Cal.3d 908, 924.)
The juvenile court found that, if not removed from mother's custody, there was a substantial danger to the minor's health, safety, protection, or physical or emotional well- being. The juvenile court also found that no alternatives to removal existed. Such conclusions follow inexorably from the facts and circumstances present here, including the refusal of appellants to acknowledge, address and ameliorate the domestic violence problem.
In the past, mother had resorted to deceptive measures to hide father's presence in her home, in direct contravention of her children's safety and best interests. Thereafter, mother participated in some domestic violence services but failed to demonstrate that she could put any of what she supposedly learned into action. Indeed, her recent decision to seek modification of the restraining order to permit contact with father (effectively removing the only means of protection for the minor against father's domestic violence) and her ongoing relationship with father, despite his failure to participate in any services, makes it clear that she is likely to permit father to return to her home and continue the domestic violence. On this record, the juvenile court reasonably could conclude that there would be a clear and current risk to the minor should he remain in the home and no remedy short of out-of-home care will serve to protect the minor from the threat of serious harm.
III
Denial of Reunification Services
Appellants also contend the juvenile court erred in denying mother reunification services. They argue there is insufficient evidence to support the denial of reunification services pursuant to section 361.5, subdivisions (b)(10) and that the juvenile court abused its discretion when it failed to order services under section 361.5, subdivision (c). Neither point has merit.
Section 361.5, subdivision (b)(10) allows the juvenile court to deny reunification services where the parent has previously had services terminated for any sibling or half sibling because the parent failed to reunify with the sibling or half sibling, and has not "subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling." (§ 361.5, subd. (b)(10); In re B.H. (2016) 243 Cal.App.4th 729, 736.) In such a case, the juvenile court may not order services unless it finds, by clear and convincing evidence, that reunification is in the best interest of the minor. (§ 361.5, subd. (c).) As with removal, we review the juvenile court's denial of reunification services for substantial evidence. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881; In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.)
Appellants acknowledge that mother received reunification services for A.R.'s half siblings, those services were terminated and she failed to reunify with his half siblings. Appellants, however, contend mother made a reasonable effort to treat the domestic violence problem that led to the removal of minor A.R.'s half siblings. We disagree.
First, we disagree with appellants that the juvenile court applied the incorrect standard when denying mother services. Appellants assert that the juvenile court's comments that mother had been avoiding services, only inconsistently attending classes, and refusing to participate in the psychological evaluation, wrongly focused on her "success or failure," rather than her efforts. To the contrary, these comments indicate the juvenile court was, indeed, reviewing her efforts, and found them lacking.
Second, we agree with the juvenile court's finding that mother's subsequent efforts were deficient. Not only did mother make no meaningful progress in 18 months of services with her daughters, she made little effort after termination of her services with her daughters. Since the June 2015 termination of her services with her daughters, mother had simply attended some, but not all, of 16 DVAS domestic violence sessions and 11 individual counseling sessions. And she finally participated in one of her court-ordered psychological evaluations—after having failed to attend numerous previous appointments.
On the other hand, she sought "couples counseling" for herself and father, and continued (even up to the time of the disposition hearing) to deny and minimize the domestic violence in her relationship with father. The record supports the juvenile court's finding that mother had not made subsequent reasonable efforts to address her pattern of domestic violence.
Finally, appellants contend services should have been offered to mother pursuant to section 361.5, subdivision (c), because reunification was in the minor's best interests. We find no error.
Section 361.5, subdivision (c)(2) provides in part: "The court shall not order reunification for a parent . . . described in paragraph . . . (10) [or] (11) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." A juvenile court has broad discretion when determining whether further reunification services would be in the best interests of the child. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate court will reverse that determination only if the juvenile court abuses its discretion. (Id. at pp. 523-524.) It is the parent's burden to "affirmatively show that reunification would be in the best interest" of the child. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
Appellants have a long history of domestic violence, with each other and with other individuals. As we have recounted, despite being provided 18 months of reunification services, up to just shortly before the disposition hearing in this case, mother has failed to make meaningful progress in being able to protect her children from domestic violence in the home. At the time of the October 2015 disposition hearing, she continued to deny and minimize the domestic violence, and to protect father.
The minor's tender years make him particularly vulnerable to parental neglect. It was determined mother would "likely continue to have difficulty placing her children's well[-]being and needs before her own on any sort of consistent basis." She has demonstrated that this assessment is valid. In fact, she sought removal of the order of protection against her abuser so she could continue with their relationship and contact—despite his failure to participate in any services whatsoever. In doing so, she demonstrates that she is more concerned about her ongoing relationship with father than protecting the minor.
The nine-month-old minor was removed shortly after his birth and there was no evidence he displayed any significant bond to mother. The juvenile court did not abuse its discretion in finding mother did not meet her burden of establishing reunification was in the minor's best interests.
DISPOSITION
The order of the juvenile court is affirmed.
NICHOLSON, Acting P. J. We concur: ROBIE, J. HOCH, J.