Opinion
D071226
02-08-2017
In re D.W., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. E.W., Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J519009D) APPEAL from orders of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed. Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
E.W. (Mother) and Father have two children together, D.K. and D.W. The parents have a history of domestic violence and, before D.W. was born, the juvenile court restricted Father's contact with D.K. to supervised visitation. Thereafter, Mother allowed Father to spend time with D.K. without supervision, refused to acknowledge their history of domestic violence, and failed to submit to requested drug testing. The juvenile court found there was a substantial risk D.W. would suffer serious harm and removed D.W. from Mother's custody. Mother appeals and argues there was insufficient evidence to support the court's findings regarding jurisdiction and removal. We conclude substantial evidence supports the findings and affirm the order.
The juvenile court also removed D.K. but the present appeal relates only to D.W. and, as such, we discuss facts related to D.K. only to the extent relevant to D.W.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have a history of domestic violence dating back to 2010. Both have been arrested for assaulting the other and at least some of the altercations were in the presence of one or more of their children. The last known incidence of domestic violence between the parents was in June 2014, when Father was arrested for battering Mother, causing bruising to Mother's forearms and neck.
As one of Mother's children was present during the assault, the San Diego County Health and Human Services Agency (the Agency) received a referral and opened an investigation. In July 2014 the juvenile court removed D.K. from the parents' custody and ordered the Agency to provide family reunification services. D.W. was born a few months later, during the pendency of the juvenile court case concerning D.K.
Mother has two older children from a previous relationship that live primarily with their father. We discuss facts related to these children only to the extent relevant to D.W.
Father failed to complete court-mandated domestic violence treatment and, in December 2015, the juvenile court terminated his services and restricted his contact with D.K. to supervised visitation. As Mother had successfully completed her case plan, the court returned D.K. to her custody and ordered ongoing family maintenance services.
Thereafter, Mother refused multiple attempts by the Agency to conduct a home visit. The Agency spoke with D.K. and, after stating she was not supposed to tell and that her mom would be mad if she did, D.K. disclosed that she and Mother were living with Father and that she frequently spent time alone with him. D.K. also said the parents used marijuana together. The Agency spoke with Mother's two older children and they confirmed that they stayed with Mother, Father, D.K. and D.W. when they visited.
Mother told the Agency she had not used marijuana since D.W. was born, but repeatedly failed to drug test at the Agency's request over the course of the next several months. Mother also denied living with Father and claimed she and the children were instead living with the maternal great-grandmother. Father also denied living with Mother and the children and stated he was living with his girlfriend's grandmother, but when the Agency asked the police to conduct a welfare check at the address he gave, the residents denied knowing Father or that he lived there. The Agency was able to conduct a home visit at the great-grandmother's home in May, and the social worker noted that there were no children's toys or clothes and no crib for D.K. and that Mother was only able to locate a single piece of mail—a letter from the Agency—addressed to her.
Mother failed to comply with the Agency's requests that she drug test on at least the following dates in 2016: April 21, May 19, May 28, June 7, June 10, June 13, June 17, June 18, June 20, June 22, June 27, June 28, July 12, and August 5. As of the date of the jurisdictional and disposition hearing concerning D.W., Mother had not submitted a drug test since completing her drug treatment program in December 2015.
Between December 2015 and May 2016, the police received three calls for service from the great-grandmother's home for domestic violence, assault, and disturbing the peace with violence, but none of the calls involved Mother or Father.
In June, D.K.'s counsel filed a petition pursuant to Welfare and Institutions Code section 388 on D.K.'s behalf and asked the court to place D.K. outside of the home. The court expressed concern over D.K.'s visitation with Father and Mother's failure to comply with the Agency's requests for drug testing and once again removed D.K. from Mother's custody. A few days later, the Agency filed a petition on behalf of D.W., alleging D.W. was also at substantial risk of harm based on the history of domestic violence, Father's failure to complete court-ordered domestic violence treatment, Mother's permitting Father to have unsupervised contact with D.K. in violation of the court's orders, and Mother's failure to drug test at the Agency's request.
All further statutory references are to the Welfare and Institutions Code.
Shortly after the Agency filed the petition, Father threatened the social worker assigned to the case and her supervisor by positing a message online that read, in part, "MY BITCHES IS COMING FOR U I NO WHERE BOTH YALL [] LIVE AT WHAT CARS YALL [] DRIVE I WILL SIT OUTSIDE THE PARKING GARAGE AND WAITH [sic]" and listed the address of the social worker's office. Because Father had a history of violent behavior and had previously threatened violence against another social worker, the Agency asked the court to issue a restraining order protecting the social workers, and the court granted the request.
During a meeting with the social worker in early August, Mother said that she understood D.K. was removed because she was in contact with Father, that she had never been told she could not remain in contact with Father over the phone or through social media, and that she had complied with all requests from the Agency. At the contested jurisdiction and disposition hearing in November, Mother testified that she had completed a domestic violence program and understood what domestic violence was, but then stated there had not been a single incident of domestic violence between her and Father over the previous six years. Mother continued to deny living with Father or allowing Father to have unsupervised visitation with D.K. and said she did not believe D.K.'s statements that she had been living with Father because D.K. was a child and had an imagination.
At the conclusion of the trial, the court noted the history of domestic violence and the termination of Father's services for failure to complete treatment in 2015 and stated it found the evidence that D.K. had been spending time with Father credible. The court expressed concern that Mother was protecting Father and still did not recognize that there had been domestic violence. The court explained that the risk in this case was elevated because Father had never completed his services, also denied that there had been domestic violence, and had not been forthcoming about his contact with D.K. Finally, the court said it did have some concern Mother might be using marijuana. The court then made a true finding on the petition; found jurisdiction over D.W. pursuant to section 300, subdivision (b); found that there were no reasonable means to protect D.W. absent removal; and removed D.W. from Mother's custody pursuant to section 361, subdivision (c).
Mother appeals.
DISCUSSION
Mother argues there was insufficient evidence to support the juvenile court's findings regarding jurisdiction and removal of D.W. from her custody.
We review challenges to the sufficiency of the evidence underlying jurisdictional or dispositional findings for substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) We affirm the orders as long as there is substantial evidence in the record, viewed as a whole, from which a reasonable trier of fact could make the findings in question. (Ibid.; In re Drake M. (2012) 211 Cal.App.4th 754, 763.) We do not reweigh the evidence or consider whether the court could have drawn a different conclusion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) As the party challenging the orders, Mother bears the burden of demonstrating a lack of sufficiently substantial evidence. (Ibid.)
I. Substantial Evidence Supports the Jurisdiction Findings
The court may assert jurisdiction over a child pursuant to section 300, subdivision (b), if it finds that the child has suffered, or is at substantial risk of suffering, serious physical harm or illness due to the parent's failure or inability to protect the child. (§ 355, subd. (a); § 300, subd. (b); In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) Evidence of domestic violence between the parents may support jurisdiction if the evidence suggests the violence has harmed the child or placed the child at risk of suffering serious harm, and ongoing domestic violence in the presence of a child typically presents a substantial risk that the child will encounter violence and suffer serious physical harm. (In re M.W. (2015) 238 Cal.App.4th 1444, 1453-1454; see also In re Heather A. (1996) 52 Cal.App.4th 183, 195-196 [discussing the negative effects of domestic violence on children in the home].) Further, the past conduct of the parents "'may be probative of current conditions' if there is reason to believe that the conduct will continue." (In re S.O. (2002) 103 Cal.App.4th 453, 461.)
Here, the court found D.W. was subject to an elevated risk of suffering serious harm due to the history of domestic violence between the parents, Father's refusal to undergo treatment to address the violence, and Mother's unwillingness to admit the violence occurred or presented a threat to herself or the children. Substantial evidence supports the court's findings.
The police report and findings made during the previous juvenile court proceedings concerning D.K. established that the parents had a history of domestic violence, that Father had assaulted Mother in the presence of Mother's older child in June 2014, that Father failed to complete court-mandated domestic violence treatment, and that the court had removed D.K. from his custody and limited his contact to supervised visitation. The statements of D.K. and the older children, which the court found credible, established that Mother allowed D.K. to spend time with Father without adequate supervision despite the court's orders. Further, although Mother had completed a course on domestic violence, she testified at trial that she did not believe she and Father had ever had a single incidence of domestic violence between them, and the evidence indicated the parents remained "best friends." Mother continued to consider Father as a primary source of emotional support for herself and the children. Finally, there was evidence Father had recently made violent threats against the social workers handling the case, suggesting he remained predisposed towards violence.
Mother nonetheless asserts there was insufficient evidence to establish her conduct placed D.W. at substantial risk of serious harm. First, Mother argues the evidence regarding domestic violence was not sufficient to establish an immediate risk of harm because the most recent incident was two years earlier and the children had not reported any further physical or verbal fighting between the parents. However, the evidence establishing Mother had not acknowledged the history of violence between her and Father, that Father had not undergone treatment to address the previous domestic violence, and that Father continued to exhibit violent tendencies was substantial evidence indicating the past conduct was likely to continue in this case, placing D.W. at substantial risk of serious physical harm. (See In re S.O., supra, 103 Cal.App.4th at p. 461; cf. In re M.W., supra, 238 Cal.App.4th at pp. 1454-1455 [single occurrence of domestic violence approximately seven years earlier with no evidence of continued violence found insufficient to establish an ongoing risk of harm].)
Mother also argues the evidence of domestic violence at the maternal great-grandmother's house was not sufficient to establish a risk of harm. However, there is no indication the juvenile court relied on this evidence in making its findings. --------
Next, Mother asserts there was no order restricting Father's contact with D.W. and that her allowing Father to have unauthorized contact with D.K. did not place D.W. at risk. However, the court did not find D.W. was at risk simply because Mother failed to abide by the court's orders regarding D.K., but rather because the evidence indicated a substantial risk that the previous domestic violence would continue. Mother's conduct in allowing unauthorized visitation between Father and D.K. was further evidence of her inability or refusal to acknowledge or protect the children, including D.W., from the risks presented by Father's unaddressed history of domestic violence.
Finally, Mother argues there was not substantial evidence that she was abusing, or even using, marijuana. Mother's argument is disingenuous as the lack of evidence was the direct result of her own refusal to submit to drug testing despite multiple requests from the Agency. In any event, although the juvenile court noted it had concerns Mother "might" be using marijuana, there is no indication this was a significant factor in the court's findings, as the court focused instead on the substantial risk of harm created by the unaddressed history of domestic violence.
Substantial evidence supports the juvenile court's conclusion that there was a substantial risk D.W. would suffer serious physical harm due to the parent's failure or inability to protect her and thus that D.W. was a person described by section 300, subdivision (b).
II. Substantial Evidence Supports the Findings Regarding Removal
To remove a child from parental custody, the court must find the child is at substantial risk of harm and "there are no reasonable means by which the minor's physical health can be protected" absent removal. (§ 361, subdivision (c)(1).) Although the juvenile court must make these findings by clear and convincing evidence, our review on appeal remains subject to the substantial evidence standard. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; see also In re Angelique C. (2003) 113 Cal.App.4th 509, 519; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
Here, Mother asserts removal was not necessary because she was participating in an in-home parenting program, had successfully completed a drug treatment program and domestic violence counseling, and was visiting consistently. However, as discussed ante, the evidence indicated that she had not complied with the previous orders of the juvenile court with regards to Father's visitation with D.K. and her own drug testing and that she did not believe there had been any domestic violence between her and Father in the past. This evidence established that Mother was not willing or able to protect D.W. on her own and was not willing to follow orders of the court intended to do the same, such that there were no reasonable means to protect D.W. absent removal.
Substantial evidence supports the juvenile court's findings pursuant to section 361, subdivision (c) that removal was the only reasonable means available to protect D.W.
DISPOSITION
The orders are affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.