In re M.M.
Filed 4/2/13 In re M.M.CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
In re M.M., a Person Coming Under the Juvenile Court Law.
___________________________________
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
S.V.,
Defendant
and Appellant.
B241835
(Los
Angeles County
Super. Ct.
No. CK90032)
APPEAL from an order of the Superior
Court of
County, Sherri Sobel, Juvenile Court Referee. Affirmed.
Marissa Coffey, under appointment by
the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, Emery El Habiby, Deputy County
Counsel, for Plaintiff and Respondent.
S.V. (mother) appeals a dispositional order
removing three-year-old M.M. from her care.
Mother contends the order must be reversed
because there was no evidence the child was at risk of harm in mother’s care
and there were less restrictive alternatives to removal. (Welf. & Inst. Code, § 361.5.)
order under review.
1.
Referral;
petition filed; M.M. ordered detained.
On February 10, 2012, the
(the Department) received an immediate referral from the Child Protection
Hotline alleging that on February
3, 2012, at 3:00
a.m., mother had been a victim of domestic
violence. According to the Los Angeles
County Sherriff’s incident report, mother told Sheriff’s Deputy Ryan that
father accused her of cheating, pushed her off the bed and punched her in the
head and face numerous times with both fists.
While mother telephoned 911, father produced a butcher knife and held it
“right next to her chest in a threatening manner.†Mother feared father was going to stab
her. Father ran from the house and drove
away. Deputy Ryan noted mother had
swelling to her nose and blood in her right nostril. Mother told the deputy she and father had
been together for seven years and “there has been a lengthy history of
been reported.â€
The report indicated Deputy Ryan booked into
evidence mother’s written statement concerning the incident and the knife
father used in the incident.
A Commissioner approved a temporary
restraining order against father and mother was provided information
regarding how to obtain a permanent restraining order.
The referring party stated a child was in
the home during the incident but did not sustain any injuries. Also, the referring party had placed welfare
calls to mother on February 9 and 10, 2012, but there had been no response. It was unknown whether father was in the home
or if the mother had obtained a permanent restraining order.
A social worker went to the home twice but
found no indication anyone was present.
On February
13, 2012, the social worker left a business card
attached to a clamp on the front door.
On February
15, 2012, the social worker found a stroller in
front of the apartment and the business card left on February 13, 2012,
was not there. The social worker again
left a business card on the front door.
On February 16, 2012, Sheriff’s Detective
Izzo advised the social worker that mother stated on February 15, 2012,
she was not in a hurry to obtain a permanent restraining order because if she
did, she would be “homeless.â€
The whereabouts of the parents remained
unknown. Written notice of a detention
hearing on February
21, 2012, was sent to their last known address on February 16, 2012. The Department filed a dependency petition
which alleged the history of domestic violence between mother and father placed
M.M. at risk of harm.
Neither parent appeared at the detention
hearing. The juvenile court found a
substantial danger to M.M.’s physical or emotional health, ordered her detained
in shelter care when she was located and issued a protective custody
warrant. Mother and father were granted
separate monitored visitation after they contacted the Department.
2.
Jurisdiction/Disposition.
The jurisdiction report indicated the
family’s whereabouts remained unknown until March 9, 2012, when father
contacted the Department. Mother and
father met with a social worker that day and brought M.M. to the meeting. Father reported he had been living in the
family home but did not know the Department was trying to contact them until
March 8, 2012, when the social worker left a business card. Mother stated she had been at maternal
grandmother’s home in Rosamond with M.M. and she had been protecting the
child. Regarding the incident of domestic
violence, mother stated father hit her, she called the police and father threatened
her with a knife. However, M.M. was
asleep in her room at the time. The
social worker explained the juvenile court had ordered M.M. detained. Mother was tearful but M.M. did not cry or
appear to be in distress. Later, M.M.
told the social worker mother and father had been in a physical altercation in
which father hit mother, causing mother to be “sad and crying.â€
When interviewed for the jurisdiction
report, mother denied father held a knife to her chest. Mother explained father works as a chef and,
as father gathered his knives to leave, he moved toward her with a knife while
she was on the telephone with the police but did not hold it to her chest. Although mother did not want to press charges
against father, sheriff’s deputies helped mother obtain a temporary protective
order that required father to move out and stay away.
The report noted each parent had an
extensive child welfare history and each had been exposed to parental substance
abuse and domestic violence as
children. Mother was the subject of
referrals commencing in 1995 and she was a dependent child from 2005 until 2009
when jurisdiction terminated. M.M. was
born while mother was a dependent.
Mother indicated growing up in foster care was difficult. Mother and father met when they were 16 and
17 years of age, respectively, and they have been together ever since. Mother reported no other significant relationships.
Father told the social worker he slapped
mother at least twice and realized he had “crossed a line†when mother began
screaming. While mother was on the
telephone with the police, father gathered his work things, including his
cutlery, and left. When he returned a
few days later, mother and M.M. were gone and mother would not return his
calls. If M.M. could not be returned
home, father wanted her to stay with mother, stating she was a great mom. Father also agreed to move from the residence
temporarily if that were deemed necessary.
A domestic violence advocate told the social
worker there had been a similar incident of domestic violence in 2011 and
mother was not receptive to domestic violence services offered to her at that
time.
The report noted mother and father appear
to be bonded to M.M. and the child has lived with both parents for a
significant amount of time. Also, mother
and father had an extended family network, admitted the incident of domestic
violence and were willing to cooperate with the
Department. At
separate visits with each parent on March 14, 2012, M.M. asked to come
home.
On March 26, 2012, the juvenile court
continued the case for appointment of counsel for M.M.
On April 5, 2012, M.M. was placed in the
care of paternal aunt.
A Last Minute Information form filed April
23, 2012, indicated father no longer resided in the home and now lived with his
brother in East Palmdale. Mother and
father reported they were enrolled in parenting class and
their enrollment. The Department
requested discretion to release M.M. to mother after
verification of mother’s enrollment and a team decision making meeting
regarding reunification.
A Last Minute Information form filed Apri1
25, 2012, indicated mother had attended one 2-hour domestic violence class on
April 17, 2012. A social worker recently
had verified that father had moved from the residence. The Department requested discretion to
release M.M. to mother pending mother’s participation in programs and conjoint
counseling to insure the child’s safety in mother’s care.
3.
Adjudication.
At the adjudication, mother testified father
had moved from the home, she had not allowed him back and she would keep him
away if M.M. were returned to her. Mother presented a letter from A Change of
Faces dated April 23, 2012, indicating mother had completed 4 of 12 parenting
classes and 4 of 26 domestic violence classes.
Father acknowledged the domestic violence
incident on February 3, 2012, but denied threatening mother with a knife. Father testified he moved from the home
“when my attorney suggested it on the last two court dates.â€
Dependency investigator Shannon O’Brien
testified the Department opposed release of M.M. to mother because mother and
father intended to maintain a relationship.
The Department wanted mother and father to participate in conjoint
counseling to address domestic violence issues before the child was placed with
either parent. O’Brien noted father’s
relocation from the home was a recent development. O’Brien indicated mother’s participation in 4
of 12 parenting classes and 4 of 26 domestic violence classes did not
change O’Brien’s opinion mother currently was unable to protect the child.
In argument, M.M.’s counsel expressed concern
that mother had only recently begun parenting and domestic violence classes and
it was premature to release M.M. to mother.
Mother’s counsel argued the fact the parents intended to reunify should
be viewed as a strength as the purpose of the proceedings was family
reunification.
The juvenile court sustained the petition
and found M.M. was a dependent child within the meaning of section 300,
subdivision (b).
title="">[2] The juvenile court refused to strike father’s
use of a knife from the allegation, noting mother told the deputy sheriff who
responded to her 911 call that father held a butcher’s knife to her chest in a
threatening manner. The juvenile court
noted both parents had experienced domestic violence as children and they “are
repeating that pattern with their own child.â€
Further, mother only recently had begun to participate in family
reunification services and was far from resolving her domestic violence issues
with father, i.e., “throwing the father out, getting a restraining order, [and]
swearing he’s never coming back.†“What
I have is a young couple who will reunite just as soon as they can. . . . I don’t believe . . . mother is going to
sneak [father] in at 3:00 in the morning. . . .
[¶] Nonetheless, there is no way,
given the history of this case, that this child can be returned to either
parent at this time.â€
The juvenile court found, by clear and
convincing evidence, a substantial danger existed to the physical health of
M.M. and there were no reasonable means to protect the child without removal
from her parents’ custody. The juvenile
court ordered the Department to provide family reunification services and
granted mother and father separate monitored visits three times per week. The juvenile court ordered mother and father
to participate in counseling programs and ordered mother to participate in a
domestic violence support group and parenting class.
CONTENTIONS
Mother contends the
order removing M.M. from her care must be reversed because there was no
evidence the child was at risk of harm in mother’s care and there were less
restrictive alternatives to removal, such as return to mother with family
maintenance services and unannounced visits by the social worker to insure
M.M.’s safety.
title="">[3]
DISCUSSION
1.
Applicable
law.
The
standard for removal of a child from
parental custody is found in section 361, subdivision (c) which provides, in
relevant part, “A dependent child may not be taken from the physical custody of
[a parent] with whom the child resides at the time the petition was initiated,
unless the juvenile court finds clear and convincing
evidence . . . [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 or guardian’s physical custody.†(§ 361.5, subd. (c).)
need not be dangerous and the child need not have been actually harmed for
removal to be appropriate. The focus of
the statute is on averting harm to the child.
[Citations.] In this regard, the
court may consider the parent’s past conduct as well as present
circumstances. [Citation.]†(In re Cole C. (2009) 174 Cal.App.4th
900, 917.) Although the
juvenile court’s findings must be based on clear and convincing evidence, we
review an order removing a child from parental custody for substantial
evidence. (In re J.K. (2009) 174
Cal.App.4th 1426, 1433; In re Henry V. (2004) 119 Cal.App.4th 522,
529.)
2.
The
record supports the juvenile court’s removal order.
Mother contends the juvenile court’s
belief mother would reunite with father as soon as possible and that mother
was repeating a pattern of domestic violence constituted speculation
and was not relevant to the question whether M.M. was at risk of harm in
mother’s care. Mother claims she
separated from father after the incident of February 3, 2012, by
moving to her mother’s house with M.M.
Also, one of the means of protecting M.M.,
removal of father from the home, had already occurred. (§ 361, subd. (c).) Mother asserts there was no evidence
mother and father planned to reunite in violation of a court order, M.M.
did not witness the incident of February 3, 2012, she was
healthy and well-cared for when she was detained, she expressed a
desire to return home during visits and there had been no further incidents of
domestic violence.
Mother also claims less drastic
alternatives to removal were available, including return of M.M. to mother
“under stringent conditions of supervision by the agency such as
unannounced visits.†(
139, 148; In re Henry V.,
precautionary steps to ensure M.M.’s safety and the juvenile court’s refusal to
return the child under supervision was an abuse of discretion.
We find the juvenile court reasonably could conclude, by clear and
convincing evidence, mother was not yet ready to protect M.M. from future
domestic violence with father. As the
juvenile court noted, mother and father both had been exposed to domestic
violence as children, they were engaged in a relationship marked by father’s
domestic violence toward mother, and mother had only recently begun domestic
violence classes. Additionally, mother
and father failed to contact the Department at the outset of the case and
mother was hesitant to obtain a permanent restraining order against father for
fear of being homeless. Given that
mother and father appeared to be repeating the pattern of domestic violence to
which they had been exposed as children, the juvenile court reasonably could
conclude mother’s attendance at 4 sessions of a 26-week domestic violence
program did not equip mother to protect M.M. from domestic violence.
Regarding the juvenile court’s
belief mother would reunite with father as soon as possible, which mother
denigrates as speculation, the record indicates mother and
father had been together since they were 16 and 17 years of age and mother had
not had any other significant relationships.
Further, father told the social worker he was willing to move
necessary and, at the disposition hearing, mother’s counsel conceded mother and
father intended to reunite, noting that was the purpose of the
proceedings. Thus, it was not
speculation for the juvenile court to factor mother’s intent to reunify with
father into its determination.
Mother argues various cases support a
different result. However, each case
cited is factually distinguishable from mother’s situation. In re
W.O. (1979) 88 Ca1.App.3d 906, reversed an order removing children from
parental custody. It held the juvenile
court’s fear the children might be endangered by cocaine and marijuana
discovered at the residence beyond the reach of the children, referred to as a
remote possibility by the juvenile court, was insufficient to support an order
of removal from parental custody. Mother
claims the juvenile court similarly relied on remote possibilities and
speculation in this case. However, given
mother and father’s history of domestic violence, the juvenile court’s fear
that domestic violence would occur in M.M.’s presence was not speculation but a
reasoned assessment of the risk the child faced in mother’s custody.
In
re Henry V., supra, 119 Cal.App.4th 522, reversed
the removal of a child based on burn marks of undetermined origin and the
mother’s bonding deficiencies.
a single occurrence and removal had been premised on the need to complete a
bonding study but there was no evidence the study could not occur with the
child living at home. Here, there was a
long history of domestic violence, rather than a single incident of
domestic violence had abated.
In
re Jasmine G. (2000) 82 Cal.App.4th 282, reversed an
order removing a child from parental care because of corporal
punishment inflicted by both parents.
testimony the parents lacked an understanding of their responsibility for the
injuries, had a rigid philosophy about child rearing and had not completely
disavowed corporal punishment was insufficient to support a finding that return
of the child would be unsafe.
expressed remorse, had attended parenting classes and the child testified she
had no fear of either parent. Here, the
juvenile court confronted a case history that included two generations of
domestic violence. Mother had only
recently begun domestic violence classes and had not yet advanced sufficiently
in her understanding of domestic violence to able to protect M.M.
With respect to less drastic alternatives,
the juvenile court reasonably could conclude unannounced visits and family
maintenance services were not adequate to protect M.M. from exposure to
domestic violence. As such, there were
no reasonable means to protect M.M. without removing her from mother’s custody.
In sum, the evidence supports the juvenile
court’s finding of a substantial danger to M.M.’s physical
health and the absence of reasonable means to protect her without removal from
mother’s custody.
DISPOSITION
The
order of the juvenile court is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We
concur:
CROSKEY,
J.
ALDRICH,
J.
name="_ftn1" title="">[1] Subsequent unspecified statutory
references are to the Welfare and Institutions Code.
The sustained petition alleged mother and
father have a history of engaging in violent altercations in the presence of
the child. On February 3, 2012, father
pushed mother, repeatedly struck her face and head with his fists, and held a
knife to mother’s chest. Father has
struck mother on prior occasions and mother has failed to protect the child in
that mother has failed to obtain a restraining order against father, thereby
placing the child at risk of harm.
