Opinion
D073808
08-22-2018
In re K.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Liliana T., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519590) APPEAL from orders of the Superior Court of San Diego County, Michael Popkins, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel for Plaintiff and Respondent.
Liliana T. (Mother) appeals from the juvenile court's orders sustaining the San Diego County Health and Human Services Agency's (Agency) petition under Welfare and Institutions Code section 300, subdivision (b), on behalf of her minor daughter, K.S., and removing K.S. from parental custody. Mother contends there was no substantial evidence to support the jurisdictional findings as to her or removal. K.S.'s father, Jeffrey S. (Father) is not a party to this appeal. The Agency maintains the orders were appropriate and supported by the record. We agree and affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
K.S. was born in September 2017. The Agency opened her dependency case in October 2017 after she was exposed to two violent confrontations between the parents. A safety plan had been in place when the second incident occurred. The Agency filed a petition under section 300, subdivision (b), alleging K.S. was in substantial risk of serious physical harm and citing the two confrontations, Mother being under the influence of alcohol during both incidents, and the parents' history of domestic violence, including incidents in December 2016 and January 2017. Father subsequently clarified that these were the same event, and occurred in January 2017.
The Agency's detention report, prepared by social worker Victoria Castaneda, provided additional information about the altercations and input from the parents and family members.
On September 26, Mother and Father were arguing about Mother going back to Texas, where her family was, and she flipped over Father's food. Mother stated Father grabbed her neck and threw her on the couch, and she pulled at his shirt and tried to push him off. According to Father, he grabbed her in a bear hug to prevent her from attacking him, they fell on the couch, and she got up and kicked, punched, and hit him. Father then went to pick up K.S. Mother hit him in the face and neck, and Father indicated she almost hit K.S. He also indicated Mother had been drinking a mixed drink, she does not normally drink a lot, and this behavior was not common. Both parents called the police, and Mother was arrested.
Castaneda created a safety plan on September 27, which the parents signed. The plan provided that K.S. would not be exposed to any verbal arguments or physical altercations.
On October 9, the parents had another confrontation. Mother stated she was outside on the phone, Father took it, and when she came inside, they started arguing. She said she had a beer or two, and they were both home when she started drinking. According to Father, Mother was drinking when he got home. He stated she asked him to grab her a beer, he told her to get it herself, and they began to argue. He further stated that when she went outside to talk on the phone, he hid the beer, and she returned looking for it and became upset. Father went to give K.S. a bottle, the argument continued, and Mother scratched his face while he was holding K.S. The neighbors called the police, and Mother was arrested early morning on October 10. A domestic violence response team advocate noted Father did not know how many drinks Mother had.
The report reflects Mother admitted to the police that she scratched Father while trying to take K.S. It elsewhere states Mother reported a different reason for scratching Father and did not remember if he was holding K.S., but as discussed post, on substantial evidence review, we view the evidence in favor of the trial court order. (In re Cole C. (2009) 174 Cal.App.4th 900, 917 (Cole C.).)
A second safety plan was created, indicating in part that Father would provide a safe environment for K.S. by placing her in the paternal uncle's home upon Mother's release. Father signed the plan, and an attempt to contact Mother was made. Father violated the safety plan by picking Mother up from jail on October 12 with K.S. in the car, and they both violated the plan by being together and sleeping in the house with K.S. present. Mother subsequently explained she was not aware there was a second safety plan, and had she known, she would never have let Father pick her up. A third safety plan was created and signed by the parents.
The parents provided additional information about their relationship and prior domestic violence. They were in an on-and-off relationship, and separated after a physical altercation in January 2017 while Mother was pregnant. Mother stated Father pushed her on a couch and her lip was injured. Father explained she was pulling on his shirt and he told her to stop because she was pregnant; she scratched his face and he pushed her back; and she fell on the couch and hit her lip. His brother called the police and they arrested Father. Mother stayed at a shelter, then went back to Texas, and returned to live with Father shortly before K.S. was born. Father reported Mother had a history of ripping his shirt and had ripped up his passport before K.S. was born. Castaneda informed both parents about the risks associated with exposing children to domestic violence.
Family members also provided input. A maternal aunt reported Father had been aggressive in the past, explaining she witnessed him push Mother around more than once, hit her during an argument, and push her while visiting relatives in December 2016. She also noted concerning bruises on Mother. A paternal uncle expressed concern that Mother was violent, and reported she gave Father black eyes in the past. He explained that Father tried to defend himself.
The Agency determined there were no interventions it could offer to eliminate the need for removal, noting the parents failed to abide by the safety plans and continued to engage in altercations with K.S. present. The juvenile court detained K.S.
Social worker Yezenia Vargas provided the Agency's jurisdiction/disposition report in November 2017. The parents provided more details about the altercations, including Mother's alcohol consumption. With respect to the September incident, Mother reported she drank half a cup of a mixed drink, while Father stated he was not sure how much she had and elsewhere indicated she drank approximately one or two cups. As for the October incident, Mother admitted drinking one or two beers. Father reported Mother drank about six beers, based on them being missing from the pack. Mother indicated she had not had alcohol since K.S. was detained.
The parents and a relative provided more information about their relationship. Father reported he and Mother were still living together, "only because" he was her only family support. She told him she was trying to get into a shelter. He indicated they were trying to work on their relationship, and were interested in counseling. When Mother was asked about the relationship, she reported she was unsure and noted Father suggested trying again and going to counseling. She confirmed they had been living together, but stated they were not talking, and she was willing to get housing. A maternal uncle reported he knew there was a problem with Mother and the guy she was living with, indicating "they argue quite a bit." He explained they fight over small things, and "escalate it to big things."
Vargas also communicated with the family support clinician and parent partner. The clinician reported Mother disclosed physical, verbal, and emotional abuse by Father, and noted she lacked a key to the apartment. Mother was assessed as not likely an alcoholic. The parent partner brainstormed about shelters, and whether Mother would benefit from an inpatient program (where she could address alcohol use and also have housing and other services).
The Agency found the parents demonstrated a pattern of domestic violence, and a failure to protect themselves and K.S. It noted they were still living together. It also expressed concern that Mother reported experiencing power and control dynamics, noting among other things her lack of a key to the apartment and reliance on Father for transportation and money. The Agency determined that "[u]ntil the parents engage in services and identify ways to deescalate domestic violence, and stay away from episodes of domestic violence overall, there is no way to know that the infant will be physically and emotionally safe." It recommended the parents participate in family reunification services.
The Agency provided an addendum report in December 2017. In November, Mother moved into a shelter. She was able to participate in therapy and a community group for domestic violence, and planned to start the group. She was receiving help finding a parenting class from Blanca Hernandez, Community Services for Families Support Partner. She also had an appointment scheduled with McAlister. She "continued to express her feelings that it was not fair" that K.S. was taken from her care, and "continued to state that [K.S.] was not in any harm and that she did not do anything to her . . . ." Vargas "reiterated the danger [K.S.] was in when [the parents] engaged in a domestic violence situation on multiple occasions" and that she "would need to learn from the classes and apply that to visits, not only complete classes." Mother stated she understood. In December, Mother began the community group for domestic violence and had a meeting scheduled with Hernandez to talk about parenting classes. She was unable to make the McAlister appointment and rescheduled it. She had obtained a housing voucher, and was going to look for an apartment.
As for parental contact, Father reported to social worker Tracy Newell in late November that he and Mother got along well and planned to move to Texas. When Vargas asked Mother about this, she said they discussed that while living together, but she did not know "why he's getting it confused with now." In early December, Father told Vargas he had kicked Mother out, the last time they spoke was the week she had criminal court (approximately the second week of November), and he thought she was in a shelter. When Vargas asked what made him think that, he stated "I don't know where she went." Mother confirmed he called to talk about criminal court and spoke to her attorney, after first trying to reach her. She stated she got a new phone number because she did not want Father to call anymore.
Vargas also asked Father for clarification on Mother's drinking habits. He stated she "only drink[s] whenever I got home from work or school," and he "never suspected her drinking on her own when he was not home."
The Agency continued to recommend reunification services. It stated it would like to see the parents move forward with their parenting classes and domestic violence groups, noting they "have not taken responsibility for what has happened, and have not acknowledged why [K.S.] was removed from their care."
The Agency provided another addendum report in January 2018. Vargas met with Mother and a friend in mid-December, and Mother reported she had to be out of the shelter soon, was looking for housing, and the friend would be a last option. They discussed the foster mother's return to work and what would happen to K.S., and it appeared to Vargas that Mother "tried to convince [her] that [K.S.] was not in any danger." The foster parent herself reported that Mother "always talks about the case saying she wants the baby back and she doesn't think it's fair, we didn't do anything to the baby." (Italics omitted.) Hernandez provided a progress report for December, which indicated they "spent time creating a domestic violence safety plan and discuss[ing] the effects of domestic violence in children and the cycles of domestic violence." Social worker Jose Cintron mentioned to Vargas that he was concerned "the parents are still having contact," as Father knew the area Mother was living in. The report also noted Mother had an intake appointment for TERM group therapy. The Agency maintained its recommendation for reunification services. It reiterated the parents had yet to take responsibility, citing Mother's "constant statements to the foster parent that they did not do anything," but "look[ed] forward to seeing what the parents will learn in order to address the current concern of domestic violence."
According to the March 2018 addendum report, Mother continued to attend services. Her domestic violence group facilitator stated she was not talking about specific experiences, so progress was difficult to gauge, and that she "definitely needs more work to do." She continued to live in a shelter, and was receiving other assistance on housing. The Agency found the parents were "still in the initial phases of services and it would be premature to return [K.S.] to their care, due to their history."
At the contested jurisdiction and disposition hearing, the court admitted the Agency reports into evidence, along with a letter from South Bay Community Services addressing Mother's participation in parenting education. The parties did not examine the social worker. The juvenile court found by clear and convincing evidence that the allegations in the petition were true and K.S. was a person described under section 300, subdivision (b)(1). The court also found by clear and convincing evidence that removal of K.S. from the home was appropriate under section 361, subdivision (c):
I recognize, in making that decision, that the parents have done well for the last five months with services, and I also recognized that it has been five months since this incident happened. [¶] However, I do weigh that against the history of
domestic violence and the violation of the original safety plan. So I think the potential for danger is still there at this point. . . . I do find that placement outside the home is appropriate.The court also found, in its written order, that reasonable efforts had been made to prevent the need for removal and that there were no reasonable means to protect K.S.'s physical health without removal. Mother timely appealed.
DISCUSSION
A. Jurisdictional Findings
Mother argues there was no substantial evidence to support the juvenile court's jurisdictional findings as to her.
Mother acknowledges Father did not appeal, meaning we would affirm jurisdiction even if the allegations as to her were unsupported. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) She maintains we have discretion to reach her arguments, because she is also challenging a dispositional order, the jurisdictional findings could make "unnecessarily difficult" to reunify, and the "service plan would necessarily be quite different." We exercise our discretion to reach her challenge to the jurisdictional findings. (See In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 [reviewing court exercises discretion to address jurisdiction finding when it "serves as the basis for dispositional orders that are also challenged on appeal"; could be prejudicial or impact dependency proceedings; or could have other consequences beyond jurisdiction]; id. at p. 763 [addressing jurisdiction as to father, although there was no challenge to findings under separate counts as to mother]; see also In re Anthony G. (2011) 194 Cal.App.4th 1060, 1064-1065.)
1. Applicable Law
Section 300 provides, in relevant part: "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶] . . . [¶] (b)(1) The child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . ." The " 'basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.' " (In re J.N. (2010) 181 Cal.App.4th 1010, 1022 (J.N.).)
"On appeal, the jurisdictional findings are reviewed under the substantial evidence test." (In re S.O. (2002) 103 Cal.App.4th 453, 461.) In reviewing the sufficiency of the evidence, we "draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding." (Cole C., supra, 174 Cal.App.4th at p. 916.)
2. Analysis
The court found the petition allegations were true by clear and convincing evidence. The record contains substantial evidence to support these findings as they pertain to Mother.
K.S. was detained after the police responded to domestic violence situations between the parents in September and October 2017. Mother consumed alcohol during both incidents, and the parents provided inconsistent accounts regarding how much she drank and whether she drank alone before the October incident. The altercations resulted in injuries, and K.S. could have been injured herself. These events plainly put K.S. at risk. (See 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."]; In re E.B. (2010) 184 Cal.App.4th 568, 576 ["Children can be 'put in a position of physical danger from [spousal] violence' "]; ibid. [" 'even if they are not physically harmed, children suffer enormously from simply witnessing the violence' "].)
The record further reflects these incidents were part of an ongoing pattern of domestic violence. There was the altercation in January 2017, when Mother was pregnant, which similarly resulted in injury and arrest. Relatives reported that Mother had given Father black eyes, he had pushed her at a relative's home, and that their arguments escalated. The family support clinician reported Mother disclosed abusive behavior by Father. And Father stated Mother had a history of ripping his shirt and had ripped up his passport.
Finally, the record reflects Mother had not yet accepted responsibility for her part in K.S.'s removal, limiting her ability to address the domestic violence issues. (See J.N., supra, 181 Cal.App.4th at pp. 1025-1026 [in assessing risk, court should consider "parent's current understanding of and attitude toward the past conduct that endangered a child"]; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].) A social worker and the foster mother reported Mother indicated she did nothing wrong, the group therapy leader reported Mother had not been sharing and had more work to do, and the Agency determined she and Father were not taking responsibility for what happened. Further, although Mother took steps to separate from Father and cease contact with him, the parents continued to live together for a period after K.S.'s detention, considered working on their relationship, and even contemplated returning to Texas together. There was also evidence they may have remained in communication after that.
Taken as a whole, Mother's "comments and conduct offered no indication" that the domestic violence incidents between her and Father were "unique situation[s]" or that they were "unlikely to engage in similar behavior in the future." (In re John M. (2012) 212 Cal.App.4th 1117, 1124-1125 (John M.).) We conclude there was substantial evidence to support the juvenile court's jurisdictional findings as to Mother. Her arguments are unavailing.
First, she contends she promptly engaged in services, took steps to find housing, and separated from Father. She further contends she demonstrated "strength of character" necessary to overcome the protective issues. We acknowledge those efforts, but they do not establish there was insufficient evidence to support the jurisdictional findings. Rather, the record reflects that despite the steps Mother had taken so far, she had not made meaningful progress in addressing the domestic violence issues and K.S. remained in substantial risk of harm.
Second, Mother argues that jurisdictional findings must be based on the family's current situation, citing In re Rocco M. (1991) 1 Cal.App.4th 814 (Rocco), abrogated in part on another ground in In re R.T. (2017) 3 Cal.5th 622, 628-629 (R.T.). She again cites her "good progress" and contends the fact that she "had additional progress to be made in her services, including domestic violence . . . should not have been a justification" for jurisdiction. Her argument lacks merit. Rocco states that "[w]hile evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] . . . '[T]here must be some reason to believe the acts may continue in the future.' " (Rocco, at p. 824, italics omitted.) Here, the pattern of domestic violence and Mother's inability to accept responsibility (as well as potential on-going contact between the parents) provide reason to believe that domestic violence could recur and that K.S. remained at risk. Mother also minimizes the progress she still needs to make.
Mother makes two additional points. She argues there were no allegations K.S. was suffering at the time she was detained. But "the court need not wait until a child is seriously abused or injured to assume jurisdiction." (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383.) Second, Mother contends the jurisdictional findings must be reasonable, citing In re David M. (2005) 134 Cal.App.4th 822, 828, abrogated in part on another ground in R.T., supra, 3 Cal.5th at p. 628. She makes a similar argument on removal, stating "[t]he ultimate test is whether it is reasonable for a trier of fact to make the removal order in light of the whole record," again citing David M., at page 828. The cited portion of David M. is from its summary of the substantial evidence standard. For the reasons discussed herein, that standard is met.
B. Removal
Mother next argues there was no substantial evidence to support removal.
1. Applicable Law
Section 361, subdivision (c), provides in pertinent part: "A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . : [¶] (1) There 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); Cal. Rules of Court, rule 5.695(d)(1) [accord].) The court also "shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
We review the court's removal order for substantial evidence. (T.V., supra, 217 Cal.App.4th at p. 136; see In re Kristen H. (1996) 46 Cal.App.4th 1635, 1657 ["On review, we employ the substantial evidence test, however bearing in mind the heightened burden of proof."].)
2. Analysis
Substantial evidence supports the juvenile court's removal decision. As an initial matter, the juvenile court made its jurisdictional findings by clear and convincing evidence and those findings likewise support the court's removal determination. (See Rocco M., supra, 1 Cal.App.4th at p. 826 ["Since the evidence warranted a finding of substantial risk of serious physical injury, it also appears to have supported a finding . . . of a substantial danger to the minor's physical health."]; Cole C., supra, 174 Cal.App.4th at p. 917 ["The jurisdictional findings are prima facie evidence that the child cannot safely remain in the home."].)
Specifically, the record contains substantial evidence that removing K.S. from parental custody was necessary to protect her from substantial danger. The focus is on "averting harm to the child." (John M., supra, 212 Cal.App.4th at p. 1126.) As discussed ante, the parents had a history of domestic violence that posed substantial risk to K.S. (See ibid. [observing, in connection with removal, that "[t]he court may consider a parent's past conduct as well as present circumstances"].) Mother had not yet made meaningful progress in accepting responsibility and preventing domestic violence in the future. (See id. at pp. 1126-1127 [juvenile court "could infer these were recurring problems, and nothing in [the parents'] situation had changed to suggest that they would not continue in the future"].) The record also reflects that reasonable efforts had been made to avoid removal. The Agency first attempted to use safety plans, but the parents violated them (and violated at least the first one knowingly). The Agency reports also reflected efforts by the social workers to educate the parents about domestic violence and facilitate participation in services.
Mother's arguments again are unpersuasive. First, she contends the "record shows substantial efforts by the parents to address the protective issues identified by the [A]gency." But as discussed ante, these efforts have not yet been sufficient to eliminate the risk of K.S. being exposed to domestic violence.
Second, she contends that "[i]n examining a removal order, the court should find evidence in the record 'that less drastic alternatives could not be successfully implemented to sufficiently protect [the minor's] wellbeing,' " citing In re Steve W. (1990) 217 Cal.App.3d 10, 24 (Steve W.). She cites her counsel's argument at the hearing, stating she "correctly indicated that, with the passage of time and the progress in services by mother and father, and the fact both parents had separate stable housing, [K.S.] could have safely been returned to the home of either one of them," and notes both parents were willing to move forward with reunification services.
Steve W. did acknowledge the need for the juvenile court to consider alternatives to removal, but that requirement is not in dispute and the case is otherwise distinguishable. (See Steve W., supra, 217 Cal.App.3d at pp. 22, 24 [reversing a removal order where, among other things, the non-offending parent (mother) would not allow the offending parent contact with the minor; the juvenile court's concern appeared to be that mother would enter a relationship with another abusive person; and "there was no evidence that less drastic alternatives could not be successfully implemented"].)
To the extent Mother is suggesting that returning K.S. to her custody was a reasonable alternative to removal, she has not established this. The juvenile court can "consider, as a reasonable means to protect the minor," options including: "(A) . . . [R]emoving an offending parent . . . from the home" and "(B) Allowing a nonoffending parent . . . to retain physical custody as long as that parent . . . presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm." (§ 361, subd. (c)(1).) But both Mother and Father were offending parents. Even if Mother had established jurisdiction were unfounded as to her (and she did not), she identifies no evidence of a plan for protecting K.S. and does not articulate such a plan here. Argument by counsel is not evidence. (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 895, fn. 9.) In any event, there was evidence in the record that no reasonable alternatives were available, given the parents' previous inability to follow the safety plans and Mother's lack of progress in addressing the domestic violence issues.
DISPOSITION
The orders are affirmed.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.