In re Zachary T.
Filed 1/17/13
In re Zachary T. CA5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
In re ZACHARY T.,
et al., Persons Coming Under the Juvenile Court Law.
STANISLAUS
COUNTY COMMUNITY SERVICES AGENCY,
Plaintiff and Respondent,
v.
BOBBY T.,
Defendant and Appellant.
F065042
(Super. Ct. Nos. 515583, 515584, 515585)
In re ZACHARY
T., et al., Persons Coming Under the Juvenile Court Law.
STANISLAUS
COUNTY COMMUNITY SERVICES AGENCY,
Plaintiff and Respondent,
v.
J.G.,
Defendant and Appellant.
F065115
(Super. Ct. Nos. 515583, 515584, 515585)
APPEALS
from orders of the Superior Court of
County. Ann Q. Ameral, Judge.
Jamie
A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant
Bobby T.
Shaylah
Padgett-Weibel, under appointment by the Court of Appeal, for Defendant and
Appellant Judi G.
John
P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
J.G. (mother) and Bobby T. (father)
separately appeal from the jurisdictional findings and consequent dispositional
orders that removed their children, eight-year-old Alena G., six-year-old
Zachary T., and two-year-old Bobby B.T. (collectively the children), from their
legal and physical custody.
We have ordered the appeals be consolidated. In father’s appeal, he contends the juvenile
court erred in finding jurisdiction over the children pursuant to Welfare and
Institutions Code section 300, subdivisions (b) and (j),
custody. He also joins in mother’s
arguments. In mother’s appeal, she
challenges the removal order. As we
shall explain, we disagree with their arguments and affirm the juvenile court’s
findings and orders.
BACKGROUND
The
Prior Dependency
Dependency jurisdiction was first taken over
the children in October 2009 due to domestic violence between mother and
father, mother’s abuse of alcohol, and mental health concerns. Police reports showed that the couple had
nine incidents of domestic violence to which police responded, some of which
occurred in the children’s presence.
Before jurisdiction was taken, the parents agreed to participate in
voluntary services. Shortly thereafter,
mother was arrested for a domestic violence incident, in which father sustained
a bloody nose and several bites, and for violating a restraining order. Father explained that despite being
instructed to stay away from mother, he went to her apartment because she
pleaded for him to do so. After going to
the movies, mother wanted something to drink.
After that, father said it got out of hand and got physical. Mother admitted the date and drinking beer,
but she did not remember what happened.
Alena told social workers her parents were always fighting and she would
have to tell them to stop. Alena saw
them hitting each other all the time.
Mother and father were offered reunification
services. They completed a 52-week
domestic violence program, a parenting program, individual counseling, and
substance abuse services. Mother also
completed a clinical
assessment. Dependency was dismissed
on March 14, 2011. The juvenile court
issued exit orders giving mother and father, who were separated, joint legal
and shared physical custody, with the children’s primary residence with mother.
On February 17, 2012,
Agency (Agency) received a referral alleging domestic violence between mother
and father, and that they drank heavily and fought all the time. At 1:30 a.m. on February 17, father’s cousin
called the police to report a fight between mother and father that became
physical. When police responded at 7:30
a.m. and interviewed mother and father, who were extremely intoxicated, they
said the argument was over infidelity and claimed it was only verbal, not
physical.
The Agency investigated the referral on
February 27. The social worker spoke
with mother, who stated she and father had only one argument that resulted in
police being called. She explained that
father and his cousin Robert had been drinking the night before, father was
hung over, and when father awoke the next morning, he told Robert to call the
police. Mother did not remember getting
into an argument and claimed they were having normal marital issues. Mother said she did not drink and she told
father he could not drink anymore.
Mother stated they did not fight like they used to and had come a long way. Mother was interested in counseling services,
including marriage counseling. Mother
admitted feeling depressed and anxious.
The social worker interviewed Alena and
Zachary separately at their school.
Alena stated her parents fight often; mother would get mad because
father smoked marijuana and cigarettes.
Alena described an argument where father broke a mirror because he was
mad and the broken pieces were not picked up.
Alena also said father punched a hole in the wall and broke a door some
days ago. The parents’ most recent
argument was about them cheating on each other.
The argument caused Alena to cry and scared her and her siblings. Another argument occurred around Christmas
time when a man father had gotten into an argument with kicked a window, which
shattered all over her ten-year-old stepbrother, Damien, who had to go to the
hospital. Alena told about another
argument that occurred around Christmas time, when father was living with
another woman, Kelly. Father was
visiting Alena’s brother at mother’s house when Kelly came to the house to get
her car back and chased father with a metal baseball bat, which scared
Alena. Kelly sent a picture of father’s
clothes and Christmas toys he bought for the children set on fire and
burned. Mother and father showed the
children this picture on a phone. Alena
said she felt safe at the home, but not that happy.
Zachary also stated his parents always fight,
recalled the incident in which glass broke on Damien, said his parents used
belts to hit one another, and described the most recent incident that occurred
after Valentines’ Day when father was drinking and became angry. Mother stacked furniture behind the bedroom
door so father would not be able to go into their room and get her. Father, however, was able to get into the
room; Zachary saw him hold mother down by her arms and push her. Zachary did not feel safe at home due to
their fighting.
Father has a son, Damien, with his ex-wife,
Desiree W. Desiree told the social
worker Damien did not go to father’s home any longer due to the violence
occurring there. Damien had to go to the
hospital in December due to an argument that resulted in glass shattering on
him. According to Desiree, mother and
father had been arguing for a very long time and she was concerned for their
children.
Mother also has another child, K.G., whose
father is Stephen C. K. was returned to
Stephen’s care during the prior dependency proceeding. Stephen told the social worker there was a
court custody order preventing father from being around K. due to the constant
violence in the home and he refused to have K. around it. According to Stephen, father was a very
violent person, and father and mother fought frequently.
A social worker spoke with father on February
28. Father explained about the argument
where glass shattered on Damien. Father
said mother’s ex-boyfriend and the ex-boyfriend’s cousin came to father’s house
wanting to fight him; during the fight, glass was kicked in which shattered on
Damien, who needed to go to the hospital.
About the fight with Kelly, father said he had borrowed her car and she
wanted it back, so she came to the house and was trying to fight him. The argument ended when father gave her the
keys. Father also confirmed the argument
he had with mother where she piled furniture behind the bedroom door so he
could not get in; he said mother climbed out the window and onto the roof. The police came and nothing was done. Father said that a mirror broke at their
house when he threw a shoe, but he claimed it was not out of anger. The social worker advised father because
there were fights between the parents where the children were not safe, a
possible option was removing the children from their care. Father responded that he would leave the home
or file for divorce.
The Agency attempted to serve a warrant to
detain the children on February 28, but no one was at the home. The Agency received reports from others that
mother had packed up her things and left with the children, and the family may
be headed to New Mexico, where the maternal grandmother lived. On March 1, the social worker called the
children’s school and was told they were not expected to return until March
12. The social worker spoke with the
children’s maternal aunt, Anna G., who said she had seen bruises on mother from
father and she was aware police had been called to the home recently. Anna was concerned for the children’s
safety.
On March 20, after the family returned to
their home, the children were taken into protective custody. The social worker observed that Alena was
very protective and parentified, as she took care of her younger brothers as if
they were her own children. The children
confirmed they had been in New Mexico, but said they had returned two weeks
before and their parents kept them from going back to school. The children stated the parents verbally
argue after they are put to bed, and the arguments are loud and last for a long
period of time. The arguments cause the children to cry and come out of their
room, at which point the parents stop and apologize. The children confirmed both parents consume
alcohol at a rate of about one drink per day.
The Agency filed a petition on March 22,
alleging, based on the continued domestic violence between mother and father
despite having received reunification services, the children came within the
provisions of section 300, subdivisions (b) and (j).
With respect to subdivision (b), the petition alleged the children had
suffered, or there is a substantial probability they will suffer, serious
physical harm or illness as a result of (1) their parents’ failure or
inability to supervise or protect them adequately, and (2) their parents’
inability to provide regular care for the children due to the parents’
substance abuse. With respect to
subdivision (j), the petition alleged, based on the prior dependency case, that
the children’s sibling had been abused or neglected under subdivision (b), and
there was a substantial risk the children would be abused or neglected as
defined in subdivision (b).
The Agency’s report prepared for the
jurisdiction/disposition hearing included an assessment of mother, father and
the family. In a May 2010 clinical
assessment from the prior dependency, mother reported being previously
diagnosed with post-traumatic stress disorder following an involuntary
hospitalization as a teenager. Mother
also reported a history of alcohol abuse.
Mother had an abusive childhood, which included sexual abuse and
molestation. She had four significant
relationships all characterized by violence, except her relationship with K.’s
father, and her relationship with father was characterized by infidelity and
domestic violence.
Mother told a social worker in March 2012
that she went to New Mexico to care for her mother, who was having health
problems. Most of mother’s support came
from father, who she married in January 2006.
Mother reported occasional alcohol usage; she claimed she would drink a
couple of beers and did not drink all the time.
Mother did not think she had an issue with alcohol and she had not
blacked out. Mother said she saw a
counselor for mental health issues, who told her she suffered from depression
and anxiety. Mother, however, did not
think she needed individual counseling and stated she talked to father when she
needed to talk to someone. Mother agreed
a medication evaluation may be helpful and thought couples counseling would be
good for them, as well as family counseling.
Mother claimed they had learned from their prior domestic violence
classes and denied there was current domestic violence. She characterized their fights as “marital
disagreements.â€
Father told a social worker in March 2012
that in the past he used marijuana and drank a lot, but he stopped using as a
result of the prior dependency case.
While father admitted he still drank alcohol, he claimed he only did so
at most once a month. When he did drink,
he would have four to five beers. Father
agreed with mother’s recommendation of family counseling and thought he could
use individual counseling due to his past issues. Father said mother was really emotional and
sensitive.
A social worker interviewed Damien, who said
he did not see father that often. Damien
thought father and mother got along, but there had been some arguments, which
included an argument in February in which father was mad and got a baseball bat
when mother said she was going to leave to go to her ex-boyfriend’s house. Damien did not know what happened after
that. Damien confirmed an incident
occurred in which glass shattered on him due to a fight between father and
mother’s ex-boyfriend’s brother. Damien
stated that someone got upset and kicked the glass. A piece of glass punctured his chest and he
was bleeding. The last time Damien was
at father’s house, he noticed a broken mirror.
Damien felt scared when father fought with mother and he did not feel
safe at father’s home because of the fighting.
The Agency placed the children in two separate
licensed foster family agency homes, with Alena in one home and the boys in
another. The children visited each other
weekly. The Agency was working on
placing the children together in one home.
Alena’s foster parents reported she was a well mannered child and doing
well in her placement. The boys also
adjusted well to their placement.
The social worker reviewed the allegations
with mother and father on March 29. They
both denied domestic violence was an issue in their household. Both said the broken glass incident occurred
in April 2011. Father said he was not
violent during the incident, which occurred when mother’s sister Anna’s
boyfriend broke into the house and kicked in the window. Mother said Damien was scratched and was not
taken to the hospital. Mother said the
February incident occurred on the 16th, after she and father went out to dinner
and each drank a few beers. She said
they verbally argued and the argument never got physical. Mother was in her room on the ground crying
when father came into the room to try to make things better by apologizing and
consoling her. Mother went onto the
roof, as that is where she goes to cool down and take a break from father. In the morning, father was upset and started
yelling at her because he had to go to work and did not have clean socks. Mother got back together with father in
December 2011. Father’s girlfriend Kelly
got mad when father stayed the night at mother’s house because the baby was
sick. Kelly came by with a baseball bat
and she and father broke up. Mother said
father had nowhere to go since Kelly burned all of his belongings, so he moved
back in with mother and the children.
Mother said they were working on things and they were just having
marital issues.
Father confirmed he wanted to make his
marriage work. He said he broke the
mirror when he got frustrated after “accidentally†pulling his non-work shoes
out from under the bed and “accidentally†throwing the shoe, which hit the
mirror. Mother left the broken mirror
for him to clean up, which he did after he got home from work. The February incident occurred after going
out to dinner to celebrate Valentine’s Day.
He said they started arguing as mother’s ex-boyfriend came by and tried
to get father upset by making accusations.
Father confronted mother about it and believed her. Father stated the argument did not get
physical. Mother was crying in her room. Father wanted to check on her. She had pushed a dresser in front of the door
since it would not lock, so father pushed the door open, not out of anger but
out of concern. Father noticed the
window was open and assumed mother had gone onto the roof to cool down. At one point, Zachary got up to use the
restroom and saw mother on the ground crying, with father over her trying to
talk to her and console her.
The
Jurisdiction/Disposition Hearing
A contested combined jurisdictional and
dispositional hearing was held in April.
Mother’s sister Anna testified that she told the social worker she saw
bruises on mother in February, which mother said father had inflicted. Anna had seen other bruises on mother in the
12 months before this incident. Once
mother told Anna that father had made a bruise on her upper arm when they were
fighting. Another time mother told her
she had tried to slice her own throat; Anna saw seven or eight slices across
mother’s neck and one down her jugular.
After mother made the marks, father told mother she should have done it
a little bit deeper and she would have succeeded. The children were home at the time.
On the night the police were called to the
home in February, Anna saw mother drunk to the point of not knowing what she
was doing. Anna had seen mother drinking
or intoxicated other times in the past year.
One time, mother got violent with Anna.
Anna’s fiancé’s brother dated mother from December 2011 until February
2012. Father did not live at the home
during that time. Anna also knew father
had another girlfriend, who had come to the house with a bat and took their
Christmas presents.
Anna was concerned with mother’s and father’s
treatment of the children. In January,
the baby threw “a fit†while at a funeral in which he kicked mother. Mother pushed the baby to the floor; when the
baby hit the floor, father picked him up and spanked him three or four times
with an open hand until he was in tears.
Also in January, Anna saw mother hit Zachary across part of his face and
head because he was giving her a “hard time.â€
Four to five months after the children were returned to their parents,
Alena told Anna she had heard her parents fighting.
Desiree testified she was aware of an
incident in which glass shattered on Damien when he was visiting father, but
claimed Damien never went to the hospital as a result. Desiree denied telling the social worker that
she would not let Damien go to father’s home and testified she did not have any
concerns about Damien spending the night there.
Damien visited father “a handful†of times per year. The longest he had spent with father was
three weeks in March 2012.
The emergency response social worker, Amanda
Hedrick, testified she spoke with Desiree on February 27. During that interview, Desiree told her
father was not very consistent with his visits, she was concerned about the
violence going on in the home in front of the children, and she would not allow
Damien to visit after the police were called out in mid-February. Hedrick spoke with Damien on March 23,
who told her about an incident where father was very angry because mother went
to her ex-boyfriend’s house and got a bat.
While Damien did not think father would try to hurt mother with the bat,
he knew father was not going to play baseball with it. Damien told Hedrick about the glass incident
and that he was cut on his chest. Damien
said he could not remember if he went to the hospital. Damien did not feel safe at father’s home
because of the fighting.
Social worker Sarah Hernandez, who authored
the jurisdiction/disposition report, testified that the parents had completed
“AOD†assessments. The assessor referred
mother to an outpatient program and recommended mother receive a domestic
violence assessment. Father was referred
to “SRC†for “IOP†and relapse prevention.
Father admitted having anger problems.
Hernandez confirmed that alcohol was an issue with this family in both
the prior and current dependencies.
Mother told Hernandez that she used alcohol occasionally and when she
does drink, she drinks a couple of beers.
Father testified he and mother split up in
May 2011 and reconciled in December 2011.
During the time they were separated, father moved out of the home. He had a girlfriend, Kelly, and mother had a
boyfriend. Father said the broken window
incident occurred when Anna’s boyfriend got upset and kicked the glass next to
the door to the house. As he kicked it,
glass flew back past father and hit Damien in the chest. Father called the police, but they did not
respond. Father did not have to take
Damien to the hospital.
Father explained the December 2011 incident
involving Kelly. He borrowed Kelly’s car
to take his son to the hospital, since mother did not have a car. He and mother got back from the hospital
early in the morning. Kelly came to the
house holding a baseball bat to her side; she was screaming and demanding her
keys back. Father immediately went
outside and handed Kelly the keys. The
police were called so father could get his personal belongings, which were at
Kelly’s house, but they never responded.
Father testified he and mother had a
16. After going on a date, they had a
few beers. Mother blocked the bedroom
door with a nightstand. Father slid the
nightstand over and got into the bedroom, but mother was not there. Father got his keys and left the house. He returned about a half hour later and went
to sleep. In the morning, he and mother
argued again. He broke a mirror that was
hanging over the bed when he pulled a shoe out from under the bed and threw it
in the air out of frustration. When the
shoe came down, it hit the mirror and knocked it down. The mirror broke when it hit the bed
frame. Father did not break the mirror
on purpose. Father claimed there was not
a lot of yelling the night before; the argument occurred in the morning.
Father said they went to New Mexico on
February 29 to see his mother-in-law and stayed there nearly two weeks. They notified the children’s school that
there was a family emergency and they needed to keep the children out of
school. Father said they asked the
school to send the children’s schoolwork with them. The children were out of school two and half
or maybe three weeks. The children did
not immediately return to school when the family returned to California as they
needed to complete the schoolwork they took with them to New Mexico. Damien did not go to New Mexico with
them. Father denied they were trying to
evade CPS.
Father said he and mother drink alcohol maybe
once a month or every three weeks. He
completed a drug treatment program in the prior dependency. When asked if it was his understanding after
completing the program that he could drink alcohol, father responded he
understood his life could return to “normal.â€
Father was attending weekly drug and alcohol relapse prevention meetings
at SRC, and was scheduled to have a domestic violence assessment and family
counseling. Father was willing to do
everything needed to have the children returned, including to stop arguing in
the children’s presence. He and mother
had been visiting the children every chance they got.
Father admitted that domestic violence was an
issue in the first dependency case and he went through various programs to
address the issue. Father knew that
domestic violence can scare children.
When asked why he continued to subject the children to domestic
violence, father responded that he did not “feel an argument is subjecting them
to domestic violence.†Father considered
arguing to be domestic violence “[t]o a certain extent, depending on how you
handle the situation.†Father denied
bruising mother during the past year.
Mother
testified that the February incident involved a verbal, not physical
argument. She pushed a piece of
furniture in front of the bedroom door as a way to lock the door, since it did
not have a lock, and went onto the roof to take a break. Mother denied ever trying to cut herself
through her jugular. In the past year,
she and father had not had any physical fights.
Mother said there was no time within the last year that her sister had
seen bruises on her arms. Mother dated
Anna’s fiancé’s brother from November 2010 to February 2011, and then from June
2011 to November 2011.
Mother
said they went to New Mexico because her mother was sick and needed help. They took the children out of school for the
trip, starting on the afternoon of February 28, and let the school know ahead
of time. The children did not return to
school before they were placed in temporary foster care. They were excused from school until March
25. Mother denied keeping the children
out of school to hide them.
Mother said she
drank once a month or once every two months.
When asked if it was her understanding after completing the substance
abuse program in the prior case that she could drink, mother responded she
understood she could “go back to living life without violence, and that’s what
I did.†At the outset of the prior
program, mother felt like she was forced to admit she was an alcoholic. Toward the middle of the program, she started
realizing “there was a problem with why I was drinking.†Mother did not think she had a current
problem with drinking. Mother said she
drank only twice since the children were returned to her in March 2011. Mother denied showing Alena the picture of
the burned clothes, although Alena might have overheard her discussing it with
father.
Mother
wanted the children to come home. When
asked how she could assure the court there would not be any more fighting in
front of the children, mother said “[t]here won’t be.†Mother was willing to do family
counseling. The baby has a lot of
allergies and is very asthmatic; mother was concerned he would “flare up†while
in foster care if he did not see the same doctor or get the same medications. Mother was also concerned that Alena was
separated from her brothers and that Zachary was having difficulty in his new
school.
After
oral argument, the court found the petition’s allegations true and the children
were persons described by section 300, subdivisions (b) and (j). The court adjudged the children dependents
and ordered their removal from their parents’ custody. Based on the children’s statements regarding
the arguments and violence occurring in the home, the court did not feel the
children could safely remain in the home and that it could fashion an order for
family maintenance that would keep them safe in the home. The court found reasonable efforts had been
made to prevent or eliminate the need for removal. The court gave the parents reunification
services.
Standard
of Review
“In reviewing the jurisdictional
findings and the disposition, we look to see if substantial evidence,
contradicted or uncontradicted, supports them.
[Citation.] In making this
determination, we draw all reasonable inferences from the evidence to support
the findings and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note that issues of
fact and credibility are the province of the trial court.†(In re
Heather A. (1996) 52 Cal.App.4th 183, 193 (Heather A.).) “The appellant
has the burden of showing the finding or order is not supported by substantial
evidence.†(In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Jurisdiction
Father
contends insufficient evidence supported the juvenile court’s jurisdictional
findings because there was not a risk of harm to the children at the time of
the jurisdictional hearing. He asserts
dependency jurisdiction was unnecessary because he and mother had begun to
participate in services and agreed not to argue in front of the children.
To make a
jurisdictional finding, the juvenile court must find by a preponderance of the
evidence that the child comes within at least one of the subdivisions of
section 300. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112; § 355, subd. (a)
[standard of proof at jurisdictional stage is preponderance of the
evidence].) Here, the juvenile court
found jurisdiction under subdivisions (b) and (j) of section 300. Subdivision (b) provides, in pertinent part, that
a minor comes within the jurisdiction of the juvenile court 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 or guardian to
adequately supervise or protect the child ….â€
The statutory definition consists of three elements: (1) neglectful conduct by the parent of one
of the specified forms; (2) causation; and (3) “‘serious physical harm or
illness’†to the child, or a “‘substantial risk’†of such harm or illness. (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820 (Rocco
M.); In re Ricardo L. (2003) 109
Cal.App.4th 552, 566-569 (Ricardo L.).) “[S]ubdivision (j) has two prongs: (1) that
‘[t]he child’s sibling has been abused or neglected, as defined in subdivision
(a), (b), (d), (e) or (i)’; and (2) ‘there is a substantial risk that the child
will be abused or neglected, as defined in those subdivisions.’†(Ricardo
L., supra, 109 Cal.App.4th at p. 566.)
Thus, both subdivisions require a substantial risk of harm.
“‘[A]ny matter
or information relevant and material to the circumstances or acts which are
alleged to bring him or her within the jurisdiction of the juvenile court is
admissible and may be received in evidence’†at the jurisdictional
hearing. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198.) “While 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.†(Rocco M., supra, 1
Cal.App.4th at p. 824, italics omitted.)
“Thus previous acts of neglect, standing alone, do not establish a
substantial risk of harm; there must be some reason beyond mere speculation to
believe they will reoccur.†(
In this case,
there was substantial evidence that, at the time of the jurisdictional hearing,
the children were at a substantial risk of suffering serious physical harm due
to the domestic violence between mother and father. Mother and father had a long history domestic
violence. Despite receiving nearly 18
months of reunification services in the prior dependency that specifically
addressed domestic violence and substance abuse, mother and father continued to
engage in both. Since intensive services
had not ameliorated the conditions that led to the previous dependency, the
juvenile court reasonably could conclude that those conditions would continue
absent the completion of further services.
While father contends his and mother’s representations that they would
not argue in front of the children and their current participation in services
were sufficient to remove the risk of harm, the evidence showed a risk of harm
remained. This is because neither parent
understood that their arguments were more than marital disagreements; they were
fights that placed the children in fear and exposed them to a risk of physical
harm should the fights escalate to physical violence. Moreover, neither parent understood the
causal connection between their use of alcohol and the fights. Until the parents recognized the extent of
the problem, the children were at risk of harm.
The juvenile
court was entitled to protect the children from the risk of domestic
violence. “Both common sense and expert
opinion indicate spousal abuse is detrimental to children.†(In re
Benjamin D. (1991) 227 Cal.App.3d 1464, p. 1470, fn. 5; see In
562.) “[D]omestic violence in the same
household where children are living is neglect; it is a failure to protect [the
minors] from the substantial risk of encountering the violence and suffering
serious physical harm or illness from it.
Such neglect causes the risk.†(
to determine whether the child is presently in need of juvenile court
protection (In re Petra B. (1989) 216
Cal.App.3d 1163, 1169), and the court need not wait until a child is seriously abused
or injured to assume jurisdiction and take the steps necessary to protect the
child (see Heather A.,
the juvenile court’s jurisdictional findings that domestic violence between
mother and father endangered the children and they were in need of the court’s
protection.
The
Removal Order
Both
mother and father challenge the juvenile court’s dispositional order removing
the children from their custody. They
contend the evidence was not sufficient to support that order because there was
insufficient evidence of a substantial danger to the children’s physical
health, safety, or well-being if returned home.
Mother also contends the evidence does not show that less drastic
measures would have been insufficient to protect the children.
As relevant
here, before the court may order a child physically removed from his or her
parent, it must find by clear and convincing evidence that the child would be
at substantial risk of harm if returned home and there are no reasonable means
by which the child can be protected without removal. (§ 361, subd. (c)(1).) A removal order is proper if it is 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
Diamond H. (2000) 82 Cal.App.4th 1127, 1136 (Diamond H.), overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The 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].) The parent need not be dangerous and the
child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm
to the child. (Diamond H., supra, 82
Cal.App.4th at p. 1136; In re Jamie M. (1982)
134 Cal.App.3d 530, 536.) The
jurisdictional findings are prima facie evidence the child cannot safely remain
in the home. (§ 361, subd. (c)(1).)
With respect to
the first prong, i.e. whether the children would be in substantial danger of
physical harm if they were returned home, mother argues the children were not
in substantial danger because (1) she had learned from her 52-week domestic
violence program, as evidenced by her telling the children to stay in their
bedroom while she argued with father and that they stopped arguing when the
children came out crying, (2) she tried to refrain from engaging in fights
by going on the roof to calm down, and (3) father was the violent one, and
even then, he did not physically abuse her, while she engaged only in “some
verbal disputes†with him. Mother
asserts the Agency’s delay in investigating the referral and the police’s
decision not to follow-up on the February incident show there was no immediate
danger to the children. In his appeal,
father repeats his argument regarding jurisdiction, i.e. that there is not
substantial evidence of substantial danger to the children if they were left in
the home because he and mother promptly responded to the referrals for
additional services. He asserts the
Agency could have monitored the family under a voluntary case plan.
The same
substantial evidence that supported the juvenile court’s jurisdictional
findings also supported its dispositional order. The parents had a history of domestic
violence with each other, which in the past had led to physical abuse by both
mother and father. Despite receiving
intensive domestic violence and substance abuse counseling in the prior
dependency, the domestic violence continued.
While mother may have been applying some of what she learned from those
services after the children were returned to her, she continued to engage in
verbally abusive behavior with father that caused the children to be
fearful. The evidence of continued
fighting showed that mother and father had not yet learned to control their
behavior and did not recognize it as domestic violence. Instead mother and father minimized the
effect their arguments had on the children, characterizing the arguments as marital
disagreements or problems, which showed they had not made sufficient progress
in resolving the problems that led to the children’s first dependency and
detention in this case. Since mother and
father did not recognize there was a problem, the children were at substantial
danger of physical harm if they were returned home.
Mother asserts
that even if there were a substantial danger to the children’s physical safety,
section 361, subdivision (c)(1), required the court to consider removing
father, as the offending parent, from the home and allowing her, as the
nonoffending parent, to retain custody.
She contends the Agency did not explore options to allow the children to
stay in her home and a reasonable alternative would have been to order father
to leave the home and return the children to her.
The evidence
established, however, that removing father from the home was not a reasonable
alternative, as the risk of harm to the children would not be ameliorated if he
moved out. This is because the evidence
shows the risk of harm to the children lies in mother’s willingness to remain
in an abusive relationship at the children’s expense. Mother had separated from father several
times in the past, but always took him back.
Each time she did, the abuse continued.
Moreover, mother had a history of entering into violent relationships
with men. Mother’s history of failing to
protect the children, coupled with evidence of her continuing lack of judgment
and failure to recognize that she continued to engage in behavior that was
harmful to the children, constituted sufficient evidence upon which the court
could conclude the children would be at a substantial risk of harm if returned
to mother’s custody.
In light of this
evidence, the record supports the juvenile court’s finding that reasonable
alternatives to removal did not exist.
As mother points out, she had participated in services and learned some
techniques from those services. Mother,
however, apparently had not gained sufficient insight into her problems, as she
continued to engage in verbally abusive behavior with father that harmed the
children. Given mother’s history of
allowing father back into the home, the juvenile court reasonably concluded
that returning the children to mother’s care would have been insufficient to
protect them and removal was necessary to provide mother time to benefit from
intensive services to enable her to understand the dangers domestic violence
presented to the children and the importance of protecting them from it. While mother points to other evidence that
she asserts shows the children would not be at risk of harm if returned to her
care, she ignores the evidence that shows such a risk.
In sum, we find
substantial evidence supports the juvenile court’s removal order and therefore
uphold the order temporarily removing the children from mother’s and father’s
custody.
The juvenile court’s jurisdictional findings and dispositional
orders are affirmed.
_____________________
Gomes,
Acting P.J.
WE CONCUR:
_____________________
Kane, J.
_____________________
Franson, J.
proceedings, it was believed that Alena’s legal father was Richard D. During the course of the proceedings, the
Stanislaus County Community Services Agency learned that Richard was not
Alena’s biological father and he was not seeking to establish himself as
Alena’s presumed father. The Agency
asked the court to consider Richard an alleged father and Bobby T. the presumed
father, as Bobby had held Alena out as his child to the community and was the
only father Alena had known. At the
combined jurisdictional/dispositional hearing, the juvenile court found Bobby
T. to be Alena’s presumed father.
references are to the Welfare and Institutions Code.
