In re K.R.
Filed 2/25/13 In re K.R. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re K.R. et al., Persons
Coming Under the Juvenile Court Law.
B240392
(Los Angeles
County
Super. Ct.
Nos. CK91747, J957218)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTINE B. et al.,
Defendants and Appellants.
APPEALS
from orders of the Superior Court
of
County.
Elizabeth Kim, Juvenile Court Referee. Affirmed.
Grace E.
Clark, under appointment by the Court of Appeal, for Defendant and Appellant
Christine B.
Liana
Serobian, under appointment by the Court of Appeal, for Defendant and Appellant
Pablo R.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Tracey F.
Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
Christine M. (Mother) and Pablo R. (Father) appeal the
dependency court’s dispositional orders. They contend that the trial court should have
ordered their respective children returned to their care. We find the parents’ contentions unavailing,
and affirm.
FACTS
This matter
originally came to the attention of the Department
of Children and Family Services (DCFS) in August 2011. On the evening of August 9, Father phoned the
local police station to report that he was a victim of domestic violence by
Mother. The officer traveled to the
home, where Father reported that he and Mother had argued about locking the
door to their apartment. Mother had left
their apartment and, when she returned, she found the door locked. This angered her so much that she threw her
keys at Father. Jasmine R., Father’s
daughter—who is not related to Mother and who was 11 years old at the
time—picked up the keys, which angered Mother even further. Father intervened, and Mother punched him on
the backside of his head. Father decided
to go into another room in an attempt to defuse the situation. Mother followed him and, while he was holding
their one-month-old daughter, K.R., Mother scratched the right side of his
face.
The police
officer reported that Jasmine agreed with her Father about what occurred. However, Jasmine stated that she felt safe in
the home and was not scared of Mother.
Mother did not deny Father’s statement, except for the scratch to the
face. She displayed symptoms of
intoxication and admitted to having consumed two 40-ounce bottles of malt
liquor. She further admitted to being an
alcoholic and that alcohol affects her behavior negatively. Mother was arrested and a
against her.
A week
later, a caseworker visited the family to discuss the incident. Mother admitted that she threw keys at Father
and scratched his face. Father stated
that their arguments generally occurred when Mother was drinking. Jasmine stated that Father and Mother argued
frequently and that their arguments would sometimes become violent, but she
denied ever being hit by Mother or Father.
On August 29, 2011, DCFS received a
second referral for the family. Jasmine
reported to the caseworker that the day before, Mother drank four 40-ounce
beers and argued with Father. Mother
tried to hit Father, who pushed her away, but Mother kept trying to hit
him. Mother then kicked the radio and
broke the TV stand. Later that evening,
Mother threw a mug full of milk at the wall.
Then, when Jasmine was in her room trying to sleep, she heard Mother and
Father arguing again. When Jasmine
entered the room, she saw Mother and Father wrestling. She called the police.
Jasmine
told the caseworker that when Mother drinks she hits Father, but she is fine
when she is not drinking. Father
admitted that the August 29 incident occurred and stated that Mother began
hitting him while he was holding the baby, K.R.
Mother also admitted to the allegations, but stated she drank only three
40-ounce bottles of beer, not four. She
acknowledged that she was in violation of the restraining order. The children were detained and a voluntary
family maintenance program was initiated.
A
caseworker’s report from October 2011 noted that Mother had moved out of
Father’s residence. Mother expressed
interest in moving back in with Father, but the caseworker advised against it
given their prior history. Father also
wanted Mother to move back in to help with expenses. A few weeks later, Mother moved back into the
residence.
In November
2011, Father left two messages with the caseworker. The first one stated that Mother would be
moving out of the home. The second one
was a voicemail message in which the caseworker could hear Mother and Father
arguing and Father telling Mother to get out of his home.
In January
2012, Father tested positive for cocaine and marijuana. Father stated that he used medical marijuana
for health issues. He produced a medical
marijuana card that had expired in 2010.
He claimed that the positive test for cocaine may have been the result
of prescription pain medication. The
caseworker phoned the testing center to inquire about the possibility of a
false positive for cocaine and was informed that Father’s pain medication would
not create a positive for cocaine.
Mother was
very upset about Father’s positive cocaine test. She stated that she was willing to move out
of Father’s home and go to a shelter if that would help her get K.R. back. The caseworker told her that the child could
not be released to her so long as she lived with Father.
On February 7, 2012, DCFS filed two
section 300
title="">[1] petitions, one pertaining to K.R., the other
to Jasmine.
title="">[2] Pursuant to section 300, subdivisions (a) and
(b), both petitions alleged that Father and Mother engaged in violent altercations
in the presence of the children, endangering their health and safety and
placing them at risk of suffering physical harm. The petitions also alleged, pursuant to
section 300, subdivision (b), that Mother was an abuser of alcohol, which
rendered her incapable of providing regular care for her child and which
created a detrimental home environment, and that Father was a user of illicit
drugs, which rendered him incapable of providing regular care. The dependency court ordered the children
detained.
In February
2012, Jasmine was interviewed by a caseworker.
She said that when Mother began living with them in September 2010, she
would drink a 40-ounce beer every day.
Mother tried to take care of K.R. while she was drunk. The fights between Mother and Father would
always occur because of Mother’s drinking.
Jasmine had seen Mother initiate physical fights with Father at least
seven times. Jasmine said that she had
never seen Father drink alcohol. She
knew that Father smoked marijuana “because of his bad hip,†but said he had
never smoked in her presence. Jasmine
stated that she wanted to go back home and live with Father, but was afraid of
living with Mother.
When Father
was interviewed, he said that he and Mother had altercations “maybe
twice.†Mother was always the
aggressor. Father stated that he had
rheumatoid arthritis/degenerative hip, and that he decided to try marijuana for
the pain instead of the opiates prescribed by his doctor, because he was wary of
their addictive properties. He said he
received his first medical marijuana prescription in 2009 or 2010, that he
smokes marijuana at least two to three times a day, and that he never smokes in
the home. His medical marijuana
prescription was current. He claimed
that Mother never drank alcohol in the home.
He said that he had never used cocaine.
Mother
stated that she did not drink on a daily basis and that she only drank beer,
not hard alcohol. She said that she had
never been drunk in the presence of the children. She stated that she and Father had lived
together for about one and a half years, but they were not presently in a
relationship. Her plan was to move out
and go to a shelter, but Father did not want her to go because she paid for
rent.
On February 24, 2012, Mother left a voicemail
with the caseworker stating that she had caught Father using crack cocaine and
that he had hit her twice. When
contacted the next day, she said that she had not seen Father using drugs, but
had called and left the message because he had pushed her twice and she was
upset with him and wanted him to leave her alone. Mother stated that she had thrown the dinner
she prepared all over the kitchen, and that their argument got so loud that the
apartment manager threatened to call the police.
A few days
later, Mother called the caseworker to inform her that she planned on moving to
her stepfather’s house in Desert Hot Springs.
About a week later, Mother called again and said that she had moved to
the house in Desert Hot Springs, but then moved back to Los
Angeles because the house was filthy and smelled like
cat urine. She was currently residing in
a shelter.
On March 27, 2012, the day before the
jurisdiction and disposition hearing, Mother found housing at a transitional
shelter. The manager reported to the
caseworker that Mother could stay at the residence for as long as she needed,
and that K.R. could stay at the residence too.
Mother had her own furnished room with a twin bed and a crib. The monthly rent was $525, but as Mother made
only $516 per month, the manager had agreed to work around her income so that
she would have money for food.
At the
hearing, the dependency court found both section 300 petitions true as
alleged. The court ordered Mother to
participate in a parenting course,
domestic violence counseling, individual counseling, and an alcohol program
with random testing. Father was ordered
to attend a parenting course, domestic violence counseling, couple’s counseling
(if appropriate), individual counseling, and drug rehabilitation with random
testing.
DISCUSSION
Father and
Mother both contend that there was insufficient evidence to support the trial
court’s dispositional orders removing their respective children from their
custody. “The juvenile court has broad
discretion to determine what would best serve and protect the child’s interests
and to fashion a dispositional order accordingly. On appeal, this determination cannot be
reversed absent a clear abuse of discretion.â€
(In re Baby Boy H. (1998) 63
Cal.App.4th 470, 474.) A court abuses
its broad discretion when it makes a determination that is arbitrary,
capricious, or patently absurd. (
759.) The reviewing court should defer
to the trial court and interfere only if it finds that “‘“under all the
evidence, viewed most favorably in support of the trial court's action, no
judge could reasonably have made the order that he did.â€â€™â€ (In re
Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Pursuant to
section 361, subdivision (c)(1), a juvenile court may not remove a child from
parental custody unless “[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.†And, although this finding must be made by
clear and convincing evidence, on appeal “‘the clear and convincing test
disappears . . . [and] the usual rule of conflicting evidence is applied,
giving full effect to the respondent’s evidence, however slight, and
disregarding the appellant’s evidence, however strong.’†(Sheila
S. v. Superior Court (2000) 84 Cal.App.4th 872, 881.)
I. Mother’s Appeal
Mother contends that K.R. should have been returned to
her custody at the time of the dispositional hearing. She argues that, during the voluntary family
maintenance period and up through the dispositional hearing, she was diligent
in attending classes recommended by DCFS and visiting with K.R. She had completed 12 weeks of substance
abuse, anger management/domestic violence, and parenting classes as of January
2012. Further, she had recently found a
new residence suitable for both her and K.R.
We find
that the continued removal of K.R. was not improper. A dependency court may consider both the past
and the present conduct of a parent in fashioning a dispositional order. (In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
A dispositional order that took into account Mother’s violent behavior
was not unwarranted. According to the
parties’ statements, Mother was the primary perpetrator of domestic violence in
her relationship with Father. Although
altercations occurred near the beginning of the voluntary family maintenance
period, the destructive behavior continued nearly up until the time of the
dispositional hearing. As recently as
February 24, 2012, Mother had (apparently falsely) accused Father of using
crack cocaine, she threw dinner all over the kitchen, and she argued with
Father so loudly that the apartment manager threatened to call the police.
A long line
of cases has held that domestic violence harms children. “‘Both common sense and expert opinion . . .
indicate spousal abuse is detrimental to children.’†(In re
Sylvia R. (1997) 55 Cal.App.4th 559, 562, citing In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470,
fn. 5.) The dependency court need
not wait until a child suffers actual physical harm before taking appropriate
action. “It is clear to this court that
domestic violence in the same household where children are living
[children] from the substantial risk of encountering the violence and suffering
serious physical harm or illness from
it. Such neglect causes the risk.†(
183, 194; see also In re Basilio T.
(1992) 4 Cal.App.4th 155, 168-169.)
Mother’s
violent behavior toward Father presented a substantial risk to K.R. K.R., a baby, was witness to loud and abusive
behavior. Furthermore, during one of her
parents’ fights, while she was being held by Father, Mother scratched Father’s
face. The evidence supported the
position that K.R. was negatively affected by the domestic violence and would
continue to be at risk if immediately returned to Mother’s custody. In re
Henry V. (2004) 119 Cal.App.4th 522, a case cited by Mother, is
distinguishable. The appellate court in
that case noted that the child’s exposure to violence was a “single
occurrence.†(Id. at p. 529.) In contrast,
during her short lifetime, K.R. had been exposed to numerous incidents of
violence. Furthermore, the record in
indication on the record that either the court or the Agency understood the
necessity of making the dispositional findings on clear and convincing
evidence.†(Id. at p. 530.) That was not
the case here. The dependency court here
expressly found by clear and convincing evidence that there would be
substantial danger to K.R.’s physical health, safety, protection, or physical
or emotional well-being if she were returned to Mother.
Although
Mother appeared motivated to improve her living situation by moving into the
shelter with facilities suitable for K.R., this move occurred only one day
before the dispositional hearing. It was
not error for the dependency court to require a further demonstration of
Mother’s commitment to a violence-free and alcohol-free lifestyle. Therefore, the dispositional order removing
K.R. from Mother’s custody will not be reversed.
II. Father’s Appeal
Father
contends that the dispositional order removing Jasmine and K.R. from his
custody was improper. His appeal focuses
on the assertion that the children were ordered removed from his care solely
because he repeatedly tested positive for marijuana. Nothing in the record supports such an
assertion, however. After Father tested
positive for both marijuana and cocaine, the dependency court ordered him to
complete drug rehabilitation with random testing and ordered that visitation
could not occur if he was under the influence of drugs or alcohol, but the
court did not condition the children’s return on his testing clean for
medically prescribed marijuana.
Father’s
brief largely fails to acknowledge that his refusal to separate from Mother was
a precipitating reason his children experienced domestic violence. “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 other grounds in
(2001) 26 Cal. 4th 735.) Both
Mother and Father acknowledged that they had a volatile relationship and that
domestic violence occurred when Mother drank alcohol. Despite this, Mother and Father continued to
live with each other well past the time this dependency matter was initiated. Indeed, Father stated that he wanted Mother
to stay in his home to help pay for rent.
Father was
not blameless in creating the harmful situation. In late February 2012, Mother informed the
caseworker that Father had pushed her twice.
Mother also stated that Father would frequently start arguments with
her. A home environment where domestic
violence frequently occurs poses a substantial risk to the physical and
emotional well-being of a child. Father
never demonstrated the ability to provide his children with a safe home. Therefore, we cannot say that the dependency
court erred in ordering the continued removal of Father’s children from his
custody.
DISPOSITION
The dispositional orders are
affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
CHAVEZ, J.
otherwise noted, all statutory references are to the Welfare and Institutions
Code.
is a consolidated appeal from two separate dependency cases, No. CK91747
(regarding K.R.) and No. J957218 (regarding Jasmine). Father is a party to both cases. Mother is a party only to case No. CK91747.
