Opinion
D059958 Super. Ct. No. J518081B-C
12-23-2011
In re H.B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. I.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from orders of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Orders affirmed; second appeal dismissed.
I.B., the mother of 15-year-old H.B., 12-year-old Brandon B. and 10-year-old Paul B., appeals the juvenile court's dispositional orders removing her sons from her custody under Welfare and Institutions Code, section 361, subdivision (c)(1), after the court adjudged them dependent children under section 300, subdivision (b). I.B. contends that neither the removal order nor the court's finding that reasonable efforts were made to prevent the removal of the children was supported by substantial evidence. Robert B., the father of Brandon and Paul and the stepfather of H.B., also appeals the dispositional orders; he asks that we independently review the record for error. (See In re Sade C. (1996) 13 Cal.4th 952.) We decline Robert's request and dismiss his appeal; we also reject I.B.'s arguments and affirm the orders.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Robert's counsel has also requested that we allow Robert to file a supplemental brief on his own behalf. However, in the absence of a showing of good cause, we decline this request as well. (In re Phoenix H. (2009) 47 Cal.4th 835, 844-846.)
FACTS
In March 2011, the San Diego County Health and Human Services Agency (Agency) learned of a domestic violence incident between I.B. and Robert, who had a child welfare history dating back to 2008. I.B. and Robert, who were married for about 10 years, had been divorced for two years, but were still living together at the time of the latest incident. Over the previous four years, Robert had repeatedly moved in and out of the residence as the couple engaged in a cycle of reconciliation and separation. I.B. was totally dependent on Robert for financial support, and the couple's frequent arguments and fighting centered primarily on family finances.
In the March incident, H.B. related that Robert hit I.B. during an argument and then pushed him while he was trying to protect his mother. H.B. claimed he had a video of Robert hitting I.B.
On March 25, an Agency social worker individually interviewed the children and the parents. H.B. told the social worker that Robert was playing the piano at 2:00 a.m. and not allowing other family members to sleep. An argument between his mother and stepfather ensued with Robert calling I.B. derogatory names. Robert then hit I.B. and she fell. When H.B. tried to intervene, his stepfather pushed him down to the floor. H.B. also told the social worker there was a lot of yelling and pushing in the home, he was tired of the abuse and he wanted something to be done about it. H.B. said his mother does not do anything about the situation because his stepfather always threatens to stop supporting the family financially.
Brandon told the social worker he was scared when his parents fought— something, he said, that happened often. Brandon related that when his parents fight, "I don't want to get involved. I go to my room and close the door and cover my ears so I don't hear." Brandon also said he was afraid he might get "hit" if he remained in the vicinity of the fight. Paul told the social worker his parents fight a lot.
In a subsequent, post-detention hearing interview, Paul told the social worker that Robert "shoves and pushes" H.B. "a lot" and there was frequent fighting between I.B. and Robert with pushing, shoving and yelling. Paul said that when a fight begins "I just run to my room because I don't want to get hit."
I.B. told the social worker that Robert and H.B. fought often and confirmed that during the incident earlier that month H.B. had videotaped Robert hitting her and Robert had pushed H.B. to the floor. I.B. blamed Robert's blood pressure medication, which she said made him angry. I.B. said Robert "doesn't push me too much, only when he is really mad." Regarding her oldest son, I.B. said he was a teenager who acted out, and Robert's conduct toward H.B. was acceptable. I.B. did not want Agency to become involved with her family. Asked if she would ask Robert to stay out of the home for a few days, I.B. in turn asked if Agency would pay for her housing. When the social worker asked I.B. if she had to choose between the children and Robert as to who would stay in the home, I.B. said she would choose Robert so he would continue to make the house payments.
The social worker phoned Robert, who hung up the first time she called. On the second call, the social worker explained the allegations and Agency's concerns. Robert's response was: "take [H.B.] to Polinsky [Children's Center] then. He is the problem." Robert refused to leave the home or participate in a safety plan devised by Agency. During the conversation, Robert yelled at the social worker. Robert said his treatment of H.B. was appropriate because H.B. did not show him proper respect. Robert also minimized the domestic violence between him and I.B.
After speaking with a supervisor, the social worker took the children into protective custody with the assistance of police officers. I.B. refused to pack bags for the children and refused to sign the consent to treat or emergency assistance form.
On March 28, I.B. phoned the social worker and said H.B.'s behaviors cause the problems in the home. I.B. also denied that domestic violence was a problem in the home.
On March 29, Robert phoned the social worker and said he planned to move out of the home and live in his car to enable the children to return home.
On March 29, Agency filed dependency petitions on behalf of the children. H.B.'s petition alleged he had suffered or there was substantial risk he will suffer serious
physical harm inflicted nonaccidentally under section 300, subdivision (a). Agency filed section 300, subdivision (b), petitions for Brandon and Paul alleging that they were periodically exposed to violent confrontations in the family home.
H.B.'s petition was later amended to allege dependency pursuant to section 300, subdivision (b).
On April 13, H.B., Brandon and Paul were detained in the same licensed foster home.
In subsequent interviews with I.B., the social worker noted that her speech was "very disorganized and difficult to follow." In one of these interviews, I.B. said it was normal for Robert to hit H.B. because the minor had been disrespectful to his stepfather. The social worker opined that I.B. had mental health problems.
Robert related that in 2005, I.B. had been hospitalized for an unspecified nervous breakdown. At the time of the breakdown, I.B. was under a lot of stress because she was acting as a foster parent for the autistic children of Robert's sister.
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H.B. told the social worker Robert frequently called him names such as "asshole" and "faggot." H.B. also related that Robert treats him differently than he treats Brandon and Paul because he is not Robert's biological son.
In April, I.B. started counseling sessions with a TERM therapist and consistently attended her sessions. However, I.B. was reluctant to attend a domestic violence support group and did not begin parenting classes until June.
At a settlement conference in May, the juvenile court issued a permanent restraining order against Robert requiring him to stay at least 100 yards from H.B. The restraining order expires May 12, 2012.
At the contested jurisdictional/dispositional hearing on June 14, the court received Agency's reports. The parties stipulated that if H.B. were called as a witness, he would tell the court that he wanted to go home to his mother, but did not feel she was ready to parent at that time. He believed his mother needed additional therapeutic services before he and his brothers should be sent home.
The court sustained the petitions under section 300, subdivision (b), declared the children dependents of the court and removed them from parental custody. The court placed the children in foster care and ordered reunification services be provided.
DISCUSSION
I.
I.B. contends there was insufficient evidence to support the removal of H.B., Brandon and Paul from her custody. The contention is without merit.
After the juvenile court finds a child to be within its jurisdiction, the court must conduct a dispositional hearing. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) At the dispositional hearing, the court must decide where the child will live while under the court's supervision. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1082.)
A removal order is proper if 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 Jeannette S. (1979) 94 Cal.App.3d 52, 60.) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.) The court may consider a parent's past conduct as well as present circumstances. (In re Troy D. (1989) 215 Cal.App.3d 889, 900.)
Before the court issues a removal order, it must find the child's welfare requires removal because of a substantial danger, or risk of danger, to the child's physical health if he or she is returned home, and there are no reasonable alternatives to protect the child. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; § 361, subd. (c)(1).) There must be clear and convincing evidence that removal is the only way to protect the child. (See e.g., Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 248.)
Whether the conditions in the home present a risk of harm to the child is a factual issue. We review the court's dispositional findings for substantial evidence. (In re Kristen H., supra, 46 Cal.App.4th at p. 1654.) " 'When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact.' [¶] When applying the substantial evidence test, however, we bear in mind the heightened burden of proof. 'Under this burden of proof, "evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind." ' " (In re Alvin R. (2003) 108 Cal.App.4th 962, 971; internal citations omitted.)
We find the removal order is amply supported by evidence that there was a substantial danger or risk of danger to the well-being of H.B., Brandon and Paul if they were returned to I.B.'s custody.
Not only had I.B. and Robert exposed the children to domestic violence on numerous occasions, I.B. had shirked her own responsibility, as well as Robert's responsibility, in the violence. Remarkably, she placed primary blame on H.B. for the adult fighting. In addition, I.B. had also minimized the extent of violence in the home. For H.B., the oldest child, the domestic violence posed a substantial risk for physical injury as evidenced by the March incident. Furthermore, all three children experienced emotional harm because of the domestic violence.
From I.B.'s minimization and blame-shifting, the juvenile court could reasonably find the risk to H.B., Brandon and Paul had not been eliminated. The evidence supported the court's inherent determination that it was likely I.B. would continue to be, or would at some point in time become, involved with Robert again. If the children were returned to I.B.'s custody, this would put them at substantial risk of emotional harm or physical injury.
Domestic violence is not something to be taken lightly. It can seriously impact children in the home "even if they are not the ones being physically stricken by the abuser, because they see and hear the violence and the screaming. (In re Heather A. (1996) 52 Cal.App.4th 183, 192.) "Secondary abuse," which is "the effect on children of occurrences of abuse in their environment which are not directed specifically at them" can support removal. (Id. at pp. 186, 194-195.) "It is clear to this court that 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." (Id. at p. 194.) Moreover, someone "who repeatedly beats the mother in the presence of the child may well expose the child to emotional trauma and therefore, 'fail to protect' the child." (In re Alysha S. (1996) 51 Cal.App.4th 393, 398.)
This case demonstrates the two-prong risk to children who are raised in a home with domestic violence. Unlike his younger siblings, H.B. did not flee to his room to avoid the adult fray, and, in the March incident, he was pushed to the floor when he tried to intervene. H.B. and his siblings reported that Robert often pushed and shoved H.B. When I.B. and Robert began fighting, Brandon and Paul would run to their room and cover their ears so they would not hear the adults shouting at each other. Brandon and Paul also ran to their room because they feared they would get hit if they stayed near the fighting.
Although I.B. had started her therapy sessions early in the proceedings, she avoided actual enrollment in a domestic violence course as of the date of the dispositional hearing and had only enrolled in a parenting course two weeks before the hearing. Thus, I.B. had no real demonstrable insight into the precarious situation in which she had placed her children. As evidenced by H.B.'s stipulated testimony, the teenager had a greater appreciation than his mother of the risk for danger to the children in the family home if I.B. did not become fully engaged in her services and showed improvement. The juvenile court's removal order was supported by sufficient evidence that the children were at substantial risk of physical harm and/or emotional trauma if they were returned home.
In deciding whether to remove a child from home, the child's best interests are paramount. (In re Corey A. (1991) 227 Cal.App.3d 339, 346-347.) "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." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) We discern no abuse of discretion.
II.
I.B. contends there was insufficient evidence to support the juvenile court's finding that reasonable alternatives short of removal were pursued to protect the children. I.B. is mistaken.
We acknowledge that Robert left the family home after the children were taken into protective custody and remained out of the home at the time of the dispositional hearing. Robert also had a restraining order that required him to stay at least 100 yards away from H.B.
However, given the cyclical pattern of the relationship—with Robert repeatedly moving in and out of the home—and I.B.'s financial dependence on Robert, the juvenile court was not required to accept the premise that Robert would remain out of the home for a long period. The court could reasonably conclude there would be a reconciliation and the cycle of domestic violence would be repeated if both parents did not actively engage in their services and show progress. Moreover, a 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].) At the time of the dispositional hearing, I.B. continued to deny and minimize the problems in the home, and failed to recognize she needed services—particularly in the area of domestic violence. There was substantial evidence to support the court's finding that until I.B. became actively engaged in all of her services and demonstrated progress there were no reasonable alternatives to removal to protect her children.
DISPOSITION
Robert's appeal is dismissed. The dispositional orders are affirmed.
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IRION, J.
WE CONCUR:
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BENKE, Acting P. J.
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NARES, J.