Opinion
D060149 Super. Ct. No. SJ12579A-C
12-14-2011
In re ANDREW O. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
M.A., the mother of Andrew O., Keith O. and Kyle O., appeals orders adjudicating her sons as dependents of the juvenile court under Welfare and Institutions Code, section 300, subdivision (b), and removing the children from her custody. M.A. contends the evidence was insufficient to support the jurisdictional and dispositional orders, and there were reasonable alternatives short of removal to protect the children.
Statutory references are to the Welfare and Institutions Code.
FACTS
M.A. has had a 10-year relationship with Kevin O., the father of her sons Andrew, Keith and Kyle. Their relationship has been marked by incidents of domestic violence for eight years.
On the evening of May 21, 2011, M.A. and Kevin argued about the messy condition of the family home when she returned home from work. During the argument, Kevin pushed M.A. against a wall. Andrew, who was eight years old, and Keith, who was six years old, were present at the time. Their younger brother, Kyle, who was 11 months old, was in another room, but he woke up crying because of the noise from the argument. When Kevin continued to yell obscenities at her, M.A. phoned 911. Police escorted M.A. and the children to a domestic violence shelter. The next morning, M.A. left the shelter and returned to the family home with the children. M.A. told the social worker that she left the shelter because she had to go to work and the children had to go to school.
Keith told the social worker that he previously had seen Kevin punch M.A. in the face, head butt her and slap her. Andrew had seen Kevin punch M.A. in the face. Andrew also had observed M.A. hit Kevin with a hairbrush and, on one occasion, had seen M.A. dig scissors into Kevin's arm during an argument.
According to M.A., Kevin was the primary perpetrator of the physical violence. M.A. said over the years Kevin had punched her in the face and head butted her. Kevin, however, claimed M.A. was the primary physical aggressor, and he only acted in self-defense.
In addition to the domestic violence, Andrew and Keith said M.A. had hit them with plastic hangers to impose discipline. On one occasion, a hanger broke after she hit Andrew over the head with it. M.A. denied over-disciplining the children and said she no longer used coat hangers for this purpose.
On May 23, the San Diego County Health and Human Services Agency (Agency) detained the children at the Polinsky Children's Center.
On May 25, Agency filed dependency petitions on behalf of Andrew, Keith and Kyle, alleging the children were at risk of harm because of the failure or inability of their parents to care for or protect them. (§ 300, subd. (b).)
At the detention hearing the following day, the juvenile court ordered the children detained in foster care. The two older brothers were detained in the same foster home; Kyle was detained in a separate home.
In subsequent interviews with the social worker, M.A. said the May 21 incident did not involve violence; it was just a verbal fight. At first, M.A. said there was no pushing or shoving. Subsequently, she told the social worker that Kevin had bumped against her unintentionally. M.A. said she left the shelter the next day because the shelter was dirty and there were people there who were coughing and throwing up. She concluded it was not a good place for the children. M.A. added that when she returned home, Kevin was on his best behavior.
M.A. told the social worker that Kevin's loss of his job in Tijuana was a stressor.Kevin became depressed and was not helpful around the house. M.A. said she and Kevin argued, but there was only one incident of physical violence. As to the incident the children related of her stabbing Kevin in the arm with scissors, M.A. claimed it was an accident.
M.A. and Kevin met in Tijuana and began living together there in 2001. They married in 2007. The couple lived in Tijuana until September 2010.
M.A. expressed willingness to participate in services and had collected telephone numbers for service providers. The social worker noted that M.A. is "very concerned" for the well-being of her children.
M.A. moved out of the family home in early June and stopped living with Kevin. Nonetheless, she remained in contact with Kevin despite Agency's recommendations.
On June 16, the juvenile court sustained the dependency petitions after a document trial. The court declared the children dependents of the court and placed them in foster care. The court made its findings by clear and convincing evidence. The court noted that M.A. was both a victim and an aggressor in the mutually aggressive relationship.
DISCUSSION
I
M.A. contends substantial evidence did not support the juvenile court's jurisdictional finding under section 300, subdivision (b). The contention is without merit.
In a dependency proceeding, the child welfare agency must prove by a preponderance of the evidence that the child who is the subject of the petition comes under the court's jurisdiction. (§ 355; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
Section 300, subdivision (b), provides that jurisdiction may be assumed if:
"The child has suffered, or there is a substantial risk that 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, or the willful or negligent failure of the child's parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment."The juvenile court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re Michael S. (1981) 127 Cal.App.3d 348, 357-358; In re Luwanna S. (1973) 31 Cal.App.3d 112.) Accordingly, the court may consider past events in deciding whether a child presently needs the court's protection. (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; see also In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)
We review the evidence most favorably to the court's order—drawing every reasonable inference and resolving all conflicts in favor of the prevailing party—to determine if it is supported by substantial evidence. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) If it is, we affirm the order even if other evidence supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is insufficient evidence to support the order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The record contains substantial evidence that supports the jurisdictional order under section 300, subdivision (b). Andrew, Keith and Kyle were removed from a home in which they were repeatedly exposed to violent arguments between M.A. and Kevin. During the precipitating event leading to these proceedings, Kevin pushed M.A. up against a wall with his body and yelled obscenities at her in the presence of Andrew and Keith. The ruckus was so loud it woke up 11-month-old Kyle, who was sleeping in another room, and made him cry.
Moreover, this was not an isolated incident of domestic violence. There have been numerous domestic violence incidents during M.A. and Kevin's relationship, some of which have been quite violent. Each adult has been the aggressor at various times. Kevin has head butted M.A. and punched her in the face, drawing blood. M.A. has hit Kevin with a hair brush and on one occasion dug scissors into his arm.
Furthermore, M.A. has largely blamed Kevin for the domestic violence, thereby shirking her responsibility in creating the need for court intervention. She also provided Agency with different versions of the domestic violence incidents at different times. Such conduct suggests M.A. is denying or minimizing the extent of the problem. Children are likely to be repeatedly harmed when a parent denies or minimizes child endangering behavior. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1657-1658; see also In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [parent's inability to acknowledge his/her problems and adverse impact on children reflected underlying resistance to treatment].)
"Domestic violence is always a serious concern, and any propensity to it is certainly highly relevant as regards children's welfare." (Guardianship of Simpson (1998) 67 Cal.App.4th 914, 939.) Domestic violence 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.)
M.A.'s reliance on In re Nicholas B. (2001) 88 Cal.App.4th 1126 is misplaced as it is readily distinguishable. In that case, there was a single incident of physical abuse directed at the child, the mother immediately admitted the abuse, expressed remorse and engaged in services, and the jurisdictional hearing was held about eight months after the incident. (Id. at pp. 1130-1131, 1134-1135.) Here, there was a continuing pattern of domestic violence in the family home, and the children often were present during the incidents. At the jurisdictional hearing, which was held about three weeks after the precipitating incident, M.A. had not become fully engaged in services. Thus, at the time of the hearing, the risk to the children from domestic violence remained.
We recognize that at the time of the dispositional hearing, M.A. was no longer living with Kevin and had decreased her contact with him. These were positive steps. At the dispositional hearing, counsel also told the court that M.A. would not maintain contact with Kevin. However, the possibility of reconciliation was still present, and M.A.'s positive steps did not eliminate the need for court intervention.
We conclude substantial evidence supports the court's assumption of jurisdiction of Andrew, Keith and Kyle under section 300, subdivision (b). This clearly was a case that required court intervention to protect the children's safety and well-being.
II. Dispositional Order
M.A. contends there was insufficient evidence to support the removal of Andrew, Keith and Kyle 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, supra, 5 Cal.4th at p. 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., supra, 82 Cal.App.4th at p. 1136.) 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., supra, 46 Cal.App.4th at p. 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. Again, we apply the substantial evidence test. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)
We find the removal order is supported by ample evidence that there was a substantial danger or risk of danger to the safety of Andrew, Keith and Kyle if they were returned to M.A.'s custody. The same evidence that supported the jurisdictional order also supported the removal order. This includes M.A.'s minimization of the domestic violence in the family home and the risks presented to her children. We realize M.A. had expressed willingness to participate in services and had made efforts to do so, such as obtaining telephone numbers for service providers. We also acknowledge this was a positive development. But the core issues that fostered ongoing domestic violence in the family home remained. By the time of the dispositional hearing, M.A.'s underlying problems had not been addressed or treated. As the juvenile court observed, M.A., as well as Kevin, needed "to get to the root of these issues" before the children could be returned to parental custody.
We conclude substantial evidence supported the court's finding there was substantial risk to the children's well-being if they were returned to M.A.'s care. (§ 361, subd. (c).)
M.A.'s reliance on In re James T. (1987) 190 Cal.App.3d 58, In re Steve W. (1990) 217 Cal.App.3d 10 and In re Jasmine G. (2000) 82 Cal.App.4th 282 is misplaced as these cases are distinguishable.
In In re James T., supra, 190 Cal.App.3d 58, a 16-year-old boy was removed from his mother's custody because her poverty prevented her from providing her son with basic necessities. The appellate court held the removal was not justified by the boy's doubts, dissatisfaction, confusion and unhappiness about his mother's economic instability. (Id. at pp. 61, 63, 65.) The adolescent confusion shown in In re James T. did not involve domestic violence and the situation did not present a risk of physical harm.
In In re Steve W., supra, 217 Cal.App.3d 10, the mother was not present when her child was killed by his stepfather. (Id. at pp. 13-14.) The mother cooperated in the prosecution of the stepfather, said she wanted nothing to do with him and had begun counseling. (Id. at pp. 15, 22.) The appellate court reversed the order removing the infant half sibling from the mother's custody, finding the dispositional order was based on pure speculation the mother would enter into another relationship with an abusive person. (Id. at pp. 22-23.) Here, M.A. had played a significant role in the ongoing domestic violence and had not yet begun services.
In In re Jasmine G., supra, 82 Cal.App.4th 282, the parents of a 15-year-old girl disciplined her by hitting her with a belt and a switch. (Id. at p. 285.) After the child was detained, the parents paid for therapy, stipulated to jurisdiction, completed a parenting course and testified at the dispositional hearing that they had changed their views on corporal punishment and expressed remorse for using it to discipline their child. (Id. at pp. 288-289.) Also, the child testified that she had no fear of her parents and expressed a desire to return to either parent's home. (Id. at p. 286.) In contrast, here the domestic violence was not a one-time incident, and while M.A. had expressed a willingness to participate in services, she had not done so by the time of the dispositional hearing.
M.A. is mistaken when she claims that there were reasonable alternatives to protect the children short of removal from her custody. Notwithstanding the positive steps taken by M.A., she still had not begun services. The court found it was necessary for M.A. to engage in services and begin to deal with the issues surrounding the dysfunction in the family home before the children could be safely returned. There was substantial evidence to support this finding.
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.
While we appreciate the obligation of counsel to advocate on behalf of a client, we also expect counsel to exercise informed judgment in evaluating whether an issue has any arguable merit on appeal. On this record, we question counsel's exercise of such judgment, particularly regarding the arguments concerning jurisdiction.
DISPOSTION
The orders are affirmed.
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HALLER, Acting P. J.
WE CONCUR:
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MCDONALD, J.
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AARON, J.