In re A.W.
Filed 7/26/13 In re A.W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 A.W. et al., Persons Coming Under the Juvenile Court
Law.
B244770
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
M.F.,
Defendant
and Appellant.
(Los
Angeles County
Super. Ct.
No. CK19378)
APPEAL
from an order of the Superior Court
of
County, Robert L. Stevenson, Juvenile Court Referee. Affirmed.
Amy
Z. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Peter
Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
M.F.,
mother of A. and Brandon, appeals from the dispositional order of the juvenile
court that removed the children from her custody. (Welf. & Inst. Code, § 361, subd.
(c).)
order, we affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Viewing
the evidence according to the usual rules (In
re A.S. (2011) 202 Cal.App.4th 237, 247), it shows there have been two
previous dependency cases involving this family, one commenced in 1995 because
of general neglect and an unhealthy, unsafe home, and another in 2010 because
mother was involved in a drunken fight in her home and had enabled her minor
child to become intoxicated. The
Department of Children and Family Services (the Department) has also received
six referrals since 2001 concerning this family.
In
April 2012, sheriff’s deputies responded to a call about a fight and found
mother and Rodolfo S. visibly intoxicated and smelling of alcohol. Mother was very uncooperative and yelled at
the deputies to leave. There were blood
stains all over the floor and on the walls and both mother and Rodolfo refused
to explain the cause. Daughter Ma.’s
boyfriend claimed that mother had stabbed him and someone had broken a liquor
bottle on his face.
The
deputies found six-year-old A. hiding in the bathroom crying. He was standing on a blood-covered
floor. The child declared he was scared
because everyone was drunk, fighting, and screaming. A. had witnessed the fight and stated he saw
mother “ ‘shank’ †Ma.’s boyfriend.
Ma.’s boyfriend hit A. A. has
asthma and was coughing, but mother was too intoxicated to give him medicine or
indicate to the sheriffs’ deputies where his inhaler could be found. Mother was still intoxicated the next day
when the social worker tried to interview her.
The sheriff’s
deputies arrested mother for child
endangerment (Pen. Code, § 273a) and assault with a deadly weapon (Pen.
Code, § 245). As A. and three-year-old
Brandon were thus without a caretaker, the Department detained them.
Mother
contacted the Department after she was released from jail. She denied being a heavy drinker; she claimed
she drank “ ‘occasionally’ †and “ ‘could go years without
having a drink.’ †She claimed that
on the night of the incident she had “ ‘two, three drinks in
moderation.’ †Mother also denied
knowing Ma.’s boyfriend was abusive to her children. Mother’s criminal history includes a
conviction in 2002 for driving under the influence and a 2010 arrest for child
cruelty. The latter case remains pending.
By
the time of the jurisdictional hearing, A. had recanted much of what he told
the police the night of his detention.
He did, however, recall another incident involving his family and
drinking in which he feared he would be stabbed. Ma.’s boyfriend told the social worker that
everyone in the house was drinking on the night of the April 2012
incident. He reported that mother drinks
excessively and “gets ‘crazy and violent’ when she drinks.†A.’s father described how he and mother often
fought during their relationship because mother could not control herself when
she drank alcohol. She would drink,
“ ‘lose it. She’d fight and I’d
leave,’ †father stated.
Included
in the Department’s report for the jurisdiction hearing was the police report
from the earlier 2010 incident showing that the sheriff’s department responded
to a report that a female was screaming for help at the family’s
residence. Mother ran out of the house
yelling and screaming when the sheriff’s deputies arrived. When she saw the deputies, she yelled,
“ ‘Fuck you mother fuckers’ †and ran back inside. Mother had blood on her clothing. There were numerous people in the house, all
of whom had strong odor of alcohol and displayed symptoms of alcohol
intoxication, including Ma., who was 16 years old at the time. Three people in the residence were under the
age of 21 and reported that mother had provided them with alcohol despite being
aware they were minors. The sheriff’s
deputies observed that furniture was scattered or thrown in different
directions, there was blood on the floors and walls, and empty liquor bottles
throughout the kitchen. Brandon and A.
were crying, scared, extremely hungry, and wearing soiled diapers.
Mother
was admitted to Plaza Community Services in May 2012, soon after this most
recent incident. By the time of the
jurisdiction/disposition hearing at issue here, mother had attended 46 sessions
of substance-abuse group counseling, 13 parenting classes, 8 anger
management classes, 11 relapse prevention classes and 14 domestic
violence classes. She tested negative
for drugs on 21 occasions.
The
juvenile court sustained an amended petition under section 300, subdivisions
(a), (b), and (j) alleging that Ma.’s boyfriend hit A. and mother failed to
protect the child; mother placed the children in a dangerous situation by
engaging in a violent altercation with Ma.’s boyfriend and stabbing him in A.’s
presence; mother has a 10-year history of substance abuse and is a current
abuser of alcohol, which renders her unable to provide regular care and
supervision for the children; and mother placed the children in an endangering
situation by allowing unrelated adults to abuse alcohol in the home in the
presence of the children.
Turning
to the disposition, mother requested the children be released to her care with
family preservation services. Her
attorney argued that the Department had not carried its burden to show by clear
and convincing evidence that there was a risk of harm to the children if
returned to mother’s care. Counsel
pointed to mother’s immediate enrollment and participation in a substance abuse
program and her negative drug-test results.
The court found, although mother had immediately entered treatment, that
she had not made significant improvements with respect to her substance abuse
or her domestic violence
problems. The court pointed to mother’s
denial that she was drunk in April 2012, and her denial that she intentionally
stabbed Ma.’s boyfriend. Mother has a
“long way to go†to address her domestic violence and substance abuse problems,
the court found. The juvenile court
ordered the children removed from mother’s custody and mother appealed.
CONTENTIONS
Mother
contends there is insufficient evidence to support the juvenile court’s order
removing the children from her custody.
DISCUSSION
“ ‘At
the dispositional hearing, the court must decide where the child will live
while under the court’s supervision.’
[Citation.] ‘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. [Citation.] “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.†[Citation.] The court may consider a parent’s past
conduct as well as present circumstances.’
[Citation.]†(
“ ‘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. [Citations.] There must be
removal is the only way to protect the child.’
[Citation.]†(
Although the
juvenile court must make the removal findings by clear and convincing evidence
(§ 361, subd. (c)), 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.’
[Citation.]†[Citation.] “We have no power to judge the effect or
value of the evidence, to weigh the evidence [or] to consider the credibility
of witnesses . . . .†’ [Citation.]â€
(In re A.S.,
Here, the evidence
more than adequately supports the juvenile court’s order removing the children
from mother’s custody. Mother has a
lengthy history of substance abuse and violent behavior since at least 2001,
triggering the intervention of authorities, as A., A.’s father, and the deputy
sheriffs have described. Given mother’s
repeated history of exposing her children to the neglectful and violent
behavior that accompanies her alcohol abuse, the court could reasonably
conclude that there was a substantial danger to the children’s emotional and
physical health and safety if they remained in mother’s care. A., who is very young, already declared he
was scared during the incident that triggered this dependency. He is in need of therapy. He is showing the signs of neglect. He has been hit. He watched his mother stab Ma.’s
boyfriend. There is ample evidence that
the children are being neglected, and given the melees that occur when mother
is intoxicated, the children are at extreme risk of serious physical harm.
We reject mother’s
contention that removal was improper because she had been in treatment for five
months by the time of the dispositional hearing.
responsibilities seriously.†However,
mother has made no showing she has begun to address her problems with domestic
violence. Also, mother has been abusing
alcohol for at least a decade and the juvenile court reasonably concluded that
five months of participation in rehabilitation was an insufficient amount of
time. Mother was convicted of driving
under the influence in 2002. Her
children were declared dependents of the juvenile court in 2010 after the court
found she gave alcohol to then 16-year-old Ma.
The 2010 incident is eerily similar to the 2012 brawl: multiple
intoxicated adults fighting with each other, blood splattered on the floor and
walls, the children were present, were crying, and were scared. Despite numerous witnesses who have described
mother’s alcohol abuse and her violent behavior, mother persists in denying
that she has a problem with alcohol.
“[D]enial is a factor often relevant to determining whether persons are likely
to modify their behavior in the future without court supervision.†(In re
Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.) The juvenile court reasonably concluded that
mother had not made a sufficient improvement in her behavior, notwithstanding
her claims to have been sober for five months.
On this record, it would be foolhardy for the court to return the
children to mother’s custody.
DISPOSITION
The order appealed
from is affirmed.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
to the Welfare and Institutions Code.
appeal.
