Opinion
F081877
05-10-2021
In re J.W. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. AMBER I., Defendant and Appellant.
Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 19CEJ300059-3 & 4)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Gary L. Green, Commissioner. Sean Angele Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
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The juvenile court found then 12-year-old J.W. and then 10-year-old T.W. came within its jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1), and ordered them removed from the physical custody of their parents, Amber I. (mother) and Thomas W. (father) (§ 361, subd. (c)). Mother appeals the juvenile court's jurisdictional and dispositional findings and orders, contending the evidence was not sufficient to support (1) the jurisdictional findings and (2) the factual findings underlying removal that substantial danger existed if the children were to remain in their parents' care and that no reasonable means could prevent removal. Finding no error, we affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
Father is not a party to this appeal and to our knowledge has not separately appealed.
FACTUAL AND PROCEDURAL BACKGROUND
In the months leading up to the current dependency petition being filed, the Fresno County Department of Social Services (department) received a number of referrals alleging mother and father's fighting and mother's intoxication amounted to general neglect of the children. In December 2019, the department received a referral alleging general neglect and emotional abuse of the children. It was reported law enforcement was called to the home due to a disturbance. The parents were heard yelling and cussing while the children were home. The parents did not cooperate with the officers and refused them access to the home. The parents appeared to be intoxicated. A section 300 hold was not placed on the children due to their "advanced ages." The referral was deemed "inconclusive."
On February 16, 2020, the department received a referral alleging general neglect. It was reported law enforcement was called three times that day due to mother arguing with father while intoxicated. A sergeant had to be called out because the parents were being uncooperative. The children were "unfazed" and reported the parents "fight all the time." The referral was deemed "inconclusive."
On March 8, 2020, the department received a referral alleging general neglect. It was reported law enforcement was called due to potential domestic violence between the parents. When law enforcement arrived, the parents denied physically fighting, and mother was "extremely intoxicated." The children were present and did not appear to be in emotional distress. The referral was deemed "inconclusive."
The current dependency proceedings arose from a referral alleging general neglect the department received on March 27, 2020, from the Fresno Police Department. Mother had called 911 because of a "physical disturbance." It was reported mother had visible injuries but was extremely intoxicated and unable to tell the police who caused her injuries. Father was not home when the police first responded, but the children were asleep in the house. When the police later were able to contact father, he reported mother got into a fight with a "transient," and mother, who was also present, agreed.
The social worker discovered from the police officer that mother had been arrested in November 2019 for domestic violence; both parents had injuries resulting from the incident, and the children had been present. The social worker expressed concern that the department was never called. The social worker also discovered there had been several police calls to the residence since that time.
On April 1, 2020, a "Team Decision Making" (TDM) meeting was held. One of the social workers expressed concern there had been four referrals since December 2019 regarding domestic disturbances and intoxication that had involved law enforcement. The social worker explained despite the department coming out to the house on prior occasions, the parents continued to become excessively intoxicated and get into physical altercations in front of the children. Father stated he and mother argue but do not fight. When asked about the November 2019 incident, father stated the physical altercation happened in the front yard and the children were inside the house in their beds. Mother admitted she was arrested but referred to the incident as "allegations." Father asked the department to give them another chance and reported he and mother would not fight anymore. The social worker who investigated a prior referral stated the family has had chances; the social worker pointed out he had previously asked mother if she needed help with alcohol and she denied having a problem, and he had provided the family with a list of resources on February 27, 2020. Father denied receiving a list of resources. At the conclusion of the TDM meeting, the department concluded a safety plan could not be developed.
The department requested a protective custody warrant, which a judge issued on April 1, 2020. The department filed a petition on behalf of J.W. and T.W. alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b)(1). The petition alleged there was a substantial risk the children would suffer serious physical harm or illness as a result of the parents' inability to protect them due to alcohol abuse and domestic violence.
The juvenile court found a prima facie showing had been made that the children were described by section 300, subdivision (b)(1) and ordered them detained from the parents. Supervised visitation was ordered.
The department's jurisdiction/disposition report recommended the juvenile court find the allegations in the petition true, remove the children from the parents' custody, and order both parents be provided with family reunification services. The children had been placed with a foster family. The parents were participating in visits with the children over video conference due to COVID-19-related precautions. According to the children's care providers, visits between the parents and the children were "a yelling match" and father was aggressive to the point the visit facilitator had to talk with the parents about their behavior. Mother and father provided random drug tests positive for alcohol and THC in April 2020 and tests positive for THC only in May 2020. The social worker who authored the report opined the parents had not ameliorated the issues that led to the children's removal and were in need of substance abuse, domestic violence, and parenting services.
Several police reports were attached to the jurisdiction/disposition report detailing the circumstances of several police calls to the parents' residence.
Mother objected below to the police reports being attached to the jurisdiction/disposition report. In a footnote in her opening brief, mother notes that pursuant to section 355, none of the hearsay contained in the reports can serve as "the sole 'substantial evidence.' " We note mother is only partially right, as there are exceptions to this general rule: when hearsay evidence is objected to in a juvenile dependency proceeding, it cannot serve as the sole basis for a jurisdictional finding unless (1) the hearsay evidence would be admissible in any civil or criminal proceeding under an established hearsay exception (§ 355, subd. (c)(1)(A)); (2) the hearsay declarant is a child under 12 years of age and the subject of the jurisdictional hearing (Id., subd. (c)(1)(B)); (3) the hearsay declarant is a peace officer (Id., subd. (c)(1)(C)); or (4) the hearsay declarant is available for cross-examination (Id., subd. (c)(1)(D)). We considered mother's objection and the provisions of section 355 when arriving at the conclusions in this opinion.
On October 18, 2019, mother was intoxicated and called the police because she wanted father to leave the residence. When officers arrived, they observed mother strike father in the face, and mother was arrested.
The full report of this incident was not attached but was referenced in the November 28, 2019 report as a previous incident involving the parents. The parents referred to an incident occurring in November 2019 where mother pushed father in front of law enforcement. It appears this event may have taken place in October 2019, as the report from the November 2019 incident did not mention mother pushing father in front of law enforcement; rather, on that occasion, police arrived after both parents had received visible injuries and learned mother had struck father through father's statement.
On November 28, 2019, the police were dispatched to the parents' residence due to a call regarding a domestic disturbance. It was reported that father had struck mother and there was blood in the residence being cleaned by father. When the police arrived, the door was slightly opened. Mother had slurred speech and refused to speak with the police about the incident but said that she wanted father to leave. The officers observed the children in the home, and mother would not allow them to check on the children. The officers also observed a broken window and lacerations on mother's arms and wrists and her bottom lip. The police observed swelling to father's forehead just above his left eyebrow.
Mother reported she got into an altercation with father because he was an "asshole" and "wants to tell me everything to do." Mother reported they got into an altercation about infidelity from years ago. Mother reported father got into her face and pushed her, and mother hit father with her palm and told father to leave. She was not sure what happened next and could not articulate how she received the injury to her lip. Mother stated she just wanted father to leave but not go to jail. She reported she got the scratches on her arm from breaking a window that father had shut on her.
Father reported that mother had punched him causing the swelling on his forehead but he did not want to press charges. Father reported that mother frequently drinks and says things to make father mad. Father said three weeks prior, mother punched him, and she had been arrested and was out on bail. Father explained during the altercation with mother, he had gone into a room in the house with a glass window and heard glass shatter; when he looked to see what had happen, the window was broken and father confronted her. She then pushed father and slapped him several times on his head.
This appears to be a reference to the October 18, 2019 incident documented in the November 28, 2019 report.
The officer authoring the report believed the children were present because father referred to the door as "his door," which appeared to be in reference to one of the children. Law enforcement was unable to speak with the children because the parents did not allow them. Mother was arrested because she was determined to be the aggressor.
On February 16, 2020, the police were dispatched to the parents' house because a neighbor had heard screaming and knew there were children inside. When the officer arrived, the parents were uncooperative and refused to open the door. It was "obvious" mother was extremely intoxicated. The parents did not give the police any information. The children were playing video games and appeared unaffected by the fighting; they said they were safe and it was normal for their parents to drink alcohol and fight.
On March 8, 2020, an anonymous reporting party called the police because they saw father on top of mother possibly "choking her" at the parents' address. When the police arrived, the front door was open, and father was sitting on the couch. When the police approached, father began yelling "got a warrant" numerous times and said he had not committed a crime. Mother appeared and started yelling and swearing at the officers and exhibited objective signs of intoxication. The officers separated the parents, and father began to calm down. He stated mother had been drinking alcohol and was arguing with him over family photographs. The officers observed the children in their bedroom playing video games. T.W. stated the parents were arguing but the altercation did not get physical. He stated he and J.W. were ok and felt safe.
On March 15, 2020, a female called 911 saying she needed help. She would not give her name, and when asked for her address, she responded, "you already know." Officers responded to the location of the call and heard mother and father arguing through an open window. Both appeared to be intoxicated and slurring their words. The officer contacted mother at the front door and asked if she called for help, and she responded, "nobody called you, we don't need help" and shut the door on the officer. The officer knocked again, and father answered the door. The officer was not able to have a conversation with either mother or father due to their intoxication. The officer noted the home was known as a "nuisance as the female will become highly intoxicated and will make continuous calls to the police, but when units arrive[,] she denies calling and refuses any aid." The officer later observed mother walking in the alley shouting that father had pushed her out the front door after the officer left, and she was arrested for disorderly conduct. The officer then went to get a statement from father who said sometimes mother drinks too much and they argue. Father denied hitting mother but said mother hits him sometimes and he does not report it because he does not want her to get in trouble. Father said he was angry because mother had called his mother a "bitch." The officer had trouble getting information from father due to his intoxicated state.
At the jurisdiction/disposition hearing on September 29, 2020, mother cross-examined the social worker. The social worker testified mother had completed at least half of her voluntary parenting classes, had completed an outpatient substance abuse program, and had been testing negative for alcohol. Her last positive alcohol test was in April or May. Mother was recommended to take a women's batterer's course and a child abuse intervention course as a result of her domestic violence assessment. Mother was taking the classes and was compliant; she got good reports from the batterer's classes with no concerns noted. The social worker testified she had spoken with the children, and neither reported not feeling safe with their parents. She testified, however, that a safety concern remained because the parents were minimizing problems and not seeking accountability. The police had been called out to the family's residence 14 times, demonstrating a pattern of being heavily intoxicated and there being injuries and broken glass while the children were at home. The department wanted to see how the parents did on unsupervised visits before making a recommendation that the children be returned home. The department had a concern moving to unsupervised visits because of the parents' minimization of the allegations.
Mother called Fresno Police Department Officer Patrice Sellers-Anderson to testify. Sellers-Anderson had responded to mother's home on February 16, 2020. Sellers-Anderson observed both parents to be "extremely intoxicated" in front of the children. The parents were yelling obscenities in front of the children and were "completely belligerent." Sellers-Anderson was concerned for the children's safety but did not have enough evidence to place a hold on the children. Sellers-Anderson believed being "completely belligerent and out of control" is a risk to the children. Sellers- Anderson was eventually able to speak to the children and they appeared unaffected and told her the fighting was a daily occurrence.
Mother testified she believed the concerns the department had were related to "a couple of incidents where I had drank alcohol and got into a verbal altercation with a couple of people." Mother stated she had learned communication skills from her batterers' treatment program. She felt she had benefited from the course and was willing to complete it.
Mother testified she does not have a problem with alcohol. When asked the reasons why, mother responded, "Because I don't have to drink alcohol, I don't drink alcohol, and I don't want to drink alcohol." Mother explained she did not want to drink alcohol because "it doesn't agree with me very well, and I make not-so-rational decisions when I drink alcohol." She agreed she becomes more aggressive in her communication with others when she drinks alcohol.
Mother testified she does not have disagreements in front of the children because she knows it can be traumatizing. She does not know of anything she has done to make her children scared or sad. She does not believe she has an anger problem, a domestic violence problem, or that she exposed her children to domestic violence. According to mother, father has never hit her, and she has never hit him. She has only pushed him, which is why she was arrested in November 2019, and she has not put her hands on him since. When she was arrested, the children were in their bedroom playing a video game.
Father testified he had come to understand he would benefit from services. He completed his parenting classes, voluntary drug and alcohol services, and was currently enrolled in child abuse intervention classes and the "Phoenix Program" for domestic violence. He stated he has been provided good information in those programs. He and mother only get into verbal arguments except for one time when she pushed him in front of the police. Father agreed that drinking and arguing in front of the children was a concern. He did not believe he or mother had a substance abuse problem nor that his children should have been removed. He did not believe arguing with mother harmed the children in any way. Father believed it was beneficial for mother to take a domestic violence class because those were the accusations in the case "[n]ot because it actually happened." He believed there was only one incident of domestic violence in the relationship: when mother pushed him in November 2019. In the three to four months before the children were removed, mother got intoxicated two days per week. He and mother only argue when she is intoxicated.
The court began its ruling by noting it found the social worker generally credible, mother was "evasive at times" and "her credibility [was] in question," and father was generally credible with "some issues." The court stated it found "particularly significant" the social worker's testimony that the parents "minimized the concerns giving rise to this case," "had taken no accountability," "that there were safety concerns, and that the police had been called out 14 times to the home." The court also found significant the parents had not progressed to unsupervised visits because of the department's concern the parents' behavior would resume if the visits were unsupervised. The court noted it agreed with the department that risk existed. The court was concerned mother was "minimizing" the department's concerns. The court noted mother had to be pressed before admitting there was a domestic violence problem with father and denied having a drinking problem. The court did "not find [mother] has taken accountability." The court noted it did not accept mother's testimony that the altercations with father did not take place in the presence of the children, she has done nothing to make them sad or scared, and the children have not been exposed to domestic violence, noting Sellers-Anderson's testimony and other evidence of police involvement did not support that testimony. The court did not accept the parents' testimony that the only physical altercation was an incident where mother pushed father in front of officers. The court "applaud[ed]" the parents on "doing well on their services" but stated "there is work yet to be done" and the court did "not want to see a potential backslide."
The court sustained the allegations in the petition finding them true by a preponderance of the evidence. The court found by clear and convincing evidence there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the children if the children were returned home. The court also found there are no reasonable means by which the children's physical health can be protected without removal of the children from the parents' physical custody, noting "there is very significant evidence of a potential backslide. There is no long-term sobriety, no long-term demonstration that the parents have used and utilized the skills that they have gained from their classes." The court found the children were described by section 300, subdivision (b)(1) and ordered removal from the parents under section 361, subdivision (c)(1). The court ordered visitation to remain supervised and the parents participate in reunification services.
DISCUSSION
I. Jurisdiction
In reviewing the sufficiency of the evidence supporting the jurisdictional findings, "we determine if substantial evidence, contradicted or uncontradicted, supports them." (In re I.J. (2013) 56 Cal.4th 766, 773.) " ' "[W]e 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." ' " (Ibid.) We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. (Ibid.) " ' "We must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find that the order is appropriate." ' " (Ibid.)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (b)(1) when, as relevant here: "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, ... or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's ... substance abuse."
Here, the petition contained two counts. Count b-1 read:
"[M]other of [the children] has a substance abuse problem (alcohol) which negatively affects her ability to provide regular care, supervision and protection. [Mother's] substance abuse contributes to her unstable lifestyle, in that [mother] has exposed her children to an unsafe environment of past and current domestic violence and ongoing hostility between [mother] and [] father.... On March 27, 2020, law enforcement reported [mother] was extremely intoxicated and had engaged in a domestic violence dispute as she had visible injuries. [Mother's] continuous involvement with alcohol and domestic violence altercations with [father] places her children at serious risk of neglect or serious physical harm."
Count b-2 read:
"[F]ather of [the children] has a substance abuse problem (alcohol) which negatively affects his ability to provide regular care, supervision and protection. [Father's] substance abuse contributes to his unstable lifestyle, in that [father] has exposed his children to an unsafe environment of past and current domestic violence and ongoing hostility between [father] and [] mother.... [Father's] continuous involvement with alcohol and domestic violence altercations with [mother] places his children at serious risk of neglect or serious physical harm."
Mother contends there was not substantial evidence to support the juvenile court's finding that either count was true. We disagree.
We will first address the allegations concerning mother's alcohol abuse. In our view, mother's alcohol abuse created a substantial risk of physical harm to the children independent of the domestic violence jurisdictional allegations. Mother's suggestion on appeal that her alcohol use did not constitute abuse but rather "[m]ere usage" that would not support jurisdiction is not well taken. Some courts have found the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders provides helpful criteria for determining whether a parent's substance use constitutes abuse. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217-1218.) Those criteria include, but are not limited to, substance use, which results in a failure to fulfill major role obligations at home, recurrent substance-related legal problems " ' "(e.g., arrests for substance-related disorderly conduct)," ' " and " ' "continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights)." ' " (Id. at pp. 1217-1218.) Mother's alcohol use had resulted in several instances of police involvement, physical violence, and arrests. It continued despite these negative consequences and was frequent, according to father. Further, as a result of her substance use disorder screening, mother was recommended to complete an outpatient program consisting of sessions five days per week. The juvenile court could have made a reasonable inference that mother's use of alcohol constituted abuse for the purpose of dependency jurisdiction.
There was substantial evidence that mother's alcohol abuse caused substantial risk of physical harm to the children because law enforcement, on multiple occasions, had observed mother at home in care of the children while being intoxicated. Even though the children were older and not of tender years, they were still young enough to require some degree of appropriate supervision. Mother's repeated drinking to the level of intoxication, which affected her ability to effectively communicate while in care of the children, affected her ability to properly supervise the children, particularly in the case of an emergency. We note on March 27, 2020, mother was, at one point, observed to be the only adult present in her home with the children because father had gone to the store. If on an occasion where mother was intoxicated to the point of not being able to communicate effectively and the only adult in care of the children and one of them needed mother's aid or medical attention due to an injury or illness, or there was a serious emergency such as a fire, the evidence supports a reasonable inference mother would be unable to protect the children from physical harm or illness.
Assuming mother's lack of positive tests for alcohol constituted a short period of complete abstinence, her refusal to admit she had a drinking problem that affected her ability to care for the children or that she needed substance abuse services supported the court's conclusion there was risk of "backslide" and that risk still existed at the time of the jurisdiction hearing.
Mother's alcohol abuse further put the children at risk of physical harm because the evidence demonstrates it appears to be directly related to the domestic violence between the parents. Physical violence between a child's parents may support the exercise of jurisdiction under section 300, subdivision (b)(1) if there is evidence the violence is ongoing or likely to continue and it directly harmed the child physically or placed the child at risk of physical harm. (In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) " ' "[D]omestic violence in the same household where children are living ... is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it." ' " (In re R.C. (2012) 210 Cal.App.4th 930, 941.) " 'Children can be "put in a position of physical danger from [spousal] violence" because, "for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg...." ' " (Id. at pp. 941-942.)
The totality of the evidence supports a finding that the parents had an ongoing problem with domestic violence that occurred over a period of at least several months. The parents both admitted at the jurisdiction/disposition hearing that an altercation had become physical on one occasion where mother pushed father in front of law enforcement. While mother suggests this was an isolated incident, the police reports attached to the jurisdiction/disposition reports contain additional statements made by the parents that the other had been physically violent with the other on several occasions. In addition, observations were noted of visible injuries to father that he and mother both admitted were caused by mother and the broken glass from the window caused by mother during a domestic violence incident. Subsequent verbal altercations resulted in law enforcement being called to the home, and according to Sellers-Anderson, the parents acted in "belligerent" manners when law enforcement responded. Sellers-Anderson's testimony as well as prior referrals and other reports indicate this fighting, including the physical altercations, occurred in the presence of the children. The record viewed in its entirety supports a reasonable inference that the verbal fighting between the parents escalated to physical violence on more than one occasion and was a pattern of behavior that occurred while the children were home. This put the children at risk of physical harm because they could wander into the area where the parents are fighting and get caught in the crossfire or harm themselves in the aftermath such as from the broken glass from the window mother broke during the November 2019 incident.
Mother contends the evidence does not support there was a domestic violence incident on March 27, 2020. Our conclusion is not dependent on there being a domestic violence incident on March 27, but we conclude the evidence supported the more general allegation that there was a current risk of physical harm based on an ongoing pattern of domestic violence between the parents.
The court's finding the risk existed at the time of the hearing was supported by substantial evidence. " '[P]ast violent behavior in a relationship is "the best predictor of future violence." ' " (In re R.C., supra, 210 Cal.App.4th at p. 942.) Though the parents were participating in domestic violence services, they had only attended for a short time, and as will be discussed in more detail, infra, they had not fully appreciated the extent of their domestic violence issues, which the juvenile court could reasonably conclude meant they had not benefited from services to the extent the risk was ameliorated. Finally, because mother's alcohol abuse and the domestic violence issues appeared to be intertwined, any resumption of alcohol use could also cause a resumption of the parents' fighting and as a result physical violence in the presence of the children.
The juvenile court's jurisdictional findings were supported by substantial evidence.
II. Disposition
In determining whether substantial evidence supports the juvenile court's dispositional findings, we must account for the clear and convincing standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) The question before us is "whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Ibid.) We "view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at pp. 1011-1012.)
A dependent child shall not be taken from the physical custody of his or her parents unless the juvenile court finds clear and convincing evidence that, as relevant here, "[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." (§ 361, subd. (c)(1).) When determining whether a child will be in substantial danger if permitted to remain in the parent's physical custody, the juvenile court must consider, "not only the parent's past conduct, but also current circumstances, and the parent's response to the conditions that gave rise to juvenile court intervention." (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
Mother contends the evidence did not support a finding by clear and convincing evidence that returning home would pose a substantial danger to the children and reasonable means were available to protect the children without removal. We disagree.
Mother cites several cases standing for the proposition that a parent's perceived failure to "internalize" parenting skills despite participation in services was not substantial evidence supporting a detriment finding precluding the return of a child at a section 366.22 permanency review hearing. (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738 (Blanca P.); Georgeanne G. v. Superior Court (2020) 53 Cal.App.5th 856 (Georgeanne G.); M.G. v. Superior Court (2020) 46 Cal.App.5th 646 (M.G.).) Comparing the present case to these cases, mother contends the department's and the court's reliance on mother's "minimization" of the problems which led to removal did not constitute substantial evidence of a substantial danger because the parents had taken accountability for their past actions, engaged in services, and cooperated with the department. Mother contends the court's conclusion of substantial danger was based on the parents simply not using the "exact" words the department "wanted them to use," such as "domestic violence" and "problem," rather than the parents' actions.
The cases mother cites are distinguishable. In Blanca P., the juvenile court had erred by assuming, without proof, that the father had committed child molestation. (Blanca P., supra, 45 Cal.App.4th at p. 1747.) The department and the mother's therapist opined the mother had failed to "internalize" what she learned in parenting classes because she refused to believe the father was a child molester. (Id. at p. 1751.) There, the mother had endured "countless hours of therapy" and was nevertheless denied relief based on an arbitrary interpretation of what she gleaned from that therapy. (Ibid.)
In Georgeanne G., the detriment finding based on mother's "lack of insight" was based on the mother's relationship with a man who had a prior forcible rape conviction against his ex-wife. (Georgeanne G., supra, 53 Cal.App.5th at pp. 859, 861, 863-864.) The mother had completed her case plan, which included domestic violence services based on her prior domestic violence relationship with the father, and had no domestic violence incidents with the boyfriend in the 22 months they lived together. (Id. at pp. 862, 868.) The appellate court found that substantial evidence did not support the finding of detriment because there was no evidence of risk to the child based on the mother's relationship with the boyfriend. (Id. at pp. 868-869.)
Finally, in M.G., where the children had been removed due to domestic violence between the mother and the father, the court's detriment finding based on the father's lack of insight because he and the mother "continued to 'linger in the relationship' " was not supported by substantial evidence where there was no evidence the mother and the father were in a relationship, and they had completed their case plans. (M.G., supra, 46 Cal.App.5th at p. 662.)
These cases stand for the proposition that though a parent's lack of insight or internalization despite their participation in services can be considered by a juvenile court in making a detriment finding, "before the qualitative evaluation as to the effectiveness of counseling, therapy or parenting classes can constitute sufficient evidence to support a finding of detriment, the psychologist's or social worker's opinion must be 'based on evidence rather than an emotional response.' " (Georgeanne G., supra, 53 Cal.App.5th at p. 867, citing Blanca P., supra, 45 Cal.App.4th at p. 1750.) We do not find any of the cases mother cites particularly persuasive because in none of these cases did the parents deny a problem altogether despite completing services. In contrast, mother here denied a domestic violence problem and an alcohol abuse problem, and the court could reasonably conclude mother's testimony constituted evidence that supported the social worker's conclusion mother had a lack of insight which put the children in danger. The cases are further distinguishable because they occurred at the 18-month status review hearing where the parents had completed case plans. Here, the parents were still in the process of participating in their domestic violence services, a fact on which the juvenile court could have relied to determine if danger still existed.
Further, these cases do not stand for the proposition that a court cannot properly consider, in the cases where substance abuse is an issue, the general risk of relapse as a basis for finding substantial danger. As we have explained, despite mother's suggestion to the contrary, mother had a serious alcohol abuse problem that put the children at risk of physical harm. Though mother completed an outpatient program and had provided no positive alcohol tests for a period of four to five months, assuming the lack of positive tests constitutes complete abstinence, a short period of sobriety does not mean the risk is ameliorated. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 686-687 [relapse following more than 300 days of sobriety]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [200 days insufficient to convince juvenile court that a relapse would not occur].) Mother's denial she has an alcohol abuse problem is evidence that reasonably supports a conclusion that relapse is a concern after only a short period of abstinence. As the evidence suggests a connection between mother's intoxication and violence with father, this reasonable risk of relapse was correlated with the risk of future domestic violence, which would further put the children in substantial danger, not only of physical harm, but of emotional harm. As the evidence supported a finding mother had not yet gained the appropriate insight from the services provided, the court's conclusion that no reasonable means existed to prevent the removal of the children was also supported by the evidence.
We arrive at a similar conclusion with regard to the domestic violence services. Mother started her recommended domestic violence classes on June 30, 2020, according to a document she attached to her statement of contested issues. Though the parents had begun participating in domestic violence services and had not had a documented domestic violence issue since the dependency proceedings commenced, the court was not unreasonable in determining that their minimization of the issues in their relationship paired with the relatively short amount of services they had received meant that substantial danger existed and the services thus far did not constitute reasonable means to prevent removal.
We find no error.
DISPOSITION
The juvenile court's jurisdictional and dispositional findings and orders are affirmed.
DE SANTOS, J. WE CONCUR: DETJEN, Acting P.J. SNAUFFER, J.