Opinion
B298237
03-27-2020
In re R.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.J., Defendant and Appellant.
Emery F. El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles Assistant County Counsel, Brian Mahler, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. 19JJP00237, 19JJP00237A APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Juvenile Court Referee. Affirmed. Emery F. El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles Assistant County Counsel, Brian Mahler, Deputy County Counsel for Plaintiff and Respondent.
INTRODUCTION
Erin J. (mother) appeals from jurisdictional orders made pursuant to Welfare and Institutions Code section 300 regarding her infant son, R. Mother claims there is insufficient evidence to support a finding of jurisdiction based on allegations of domestic violence and her failure to cooperate with law enforcement. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL BACKGROUND
A. Initial Detention and Section 300 Petition
Mother and R.B. (father) are parents to son R. (born 2018). The family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on February 14, 2019, when mother called police after an incident in which father slapped her while she was holding three-month-old R.
Father is not a party to the appeal.
Mother told the responding sheriff's deputy that she and father had been dating for the past year. Father called her that morning and asked to come visit R. Mother agreed. While father was at the home, he looked at mother's phone and grew angry when he saw text messages between her and another man. Mother told father they were no longer together and she could talk to whomever she wanted. Father slapped mother twice in the face while she was holding R. Father then left the apartment. Mother told the police she was afraid father was going to shoot her because she knows he owns a gun. Mother did not see a gun during the incident and father did not threaten to shoot her. There were no visible marks or bruises on mother.
When questioned about prior domestic violence, mother told the deputy that she and father "fought" in the past and that "I hit him and he hits me." Mother refused to be evaluated by paramedics and refused an emergency protective order. When the deputy asked mother for R.'s name and date of birth, mother asked why he needed this information and then refused to continue the interview.
As detailed in the detention report, on February 19, 2019, a DCFS children's social worker (CSW) spoke with the deputy. The deputy stated that when he explained to mother that father would be arrested for domestic violence, mother stated she refused the emergency protective order because she did not want father to go to jail. Mother told the deputy that she and father were homeless and she had been living with her aunt for the past month, while father was bouncing between other homes. The CSW observed that R. was clean, with no visible marks or bruises.
The CSW spoke with maternal great-grandmother (great-grandmother) on February 19, 2019. She stated that mother and R. were visiting her home on February 14. She was not at home when the incident occurred, but mother told her what happened. Great-grandmother said this was the first time she had heard of any violence between mother and father and that father "has always been a fine and outstanding young man." She said she had no concerns with mother and R. and that she had not seen mother or father since the incident.
Mother called the CSW on February 21, 2019 and told her she was staying with her mother (grandmother) and a friend. The CSW asked for the address and explained that she needed to conduct a walkthrough of the home as part of the DCFS assessment. Mother stated she did not know the address but would call back to provide it. Later that day, grandmother called the CSW and confirmed that mother and R. had been staying with her for the past few days while mother looked for a permanent place to live. When the CSW asked for the address, grandmother refused, explaining that her landlord "does not want DCFS coming to her house." She offered to bring mother and R. to the DCFS office, but said she was worried she would be kicked out of her home if DCFS came to visit.
Grandmother also discussed the incident. She and great-grandmother were returning from dropping off another child at school when she saw father "drive up and park weird." Grandmother walked over to him and he said he wanted to talk to mother, but she said, "oh no you're not going to talk to her with that anger," and that he needed to calm down first. But father jumped over the apartment building gate and ran to the apartment. Grandmother followed, and father "tried to shove me out the door when I got there." Mother then told grandmother that father had slapped her. Grandmother told father that was not acceptable, and father got mad and told his friend to "go get the strap (gun), hurry up go get the strap." Upon hearing this, grandmother's sister called the police. Grandmother said that mother told her she was "so fearful" of father. Grandmother also reported that mother had spoken with a police detective the day before and he said they would help mother get a restraining order against father.
Mother and R. came to the DCFS office later that day, accompanied by grandmother and great-grandmother. The CSW observed that mother interacted with R. appropriately during the interview and that mother and R. had a "healthy and attached parent-child bond." Mother stated that she and father dated for over a year and used to live together, but they separated on February 11, 2019. She did not know the address of where she was staying, but planned to find a place for her, grandmother, and R. to live. She told the CSW that father had another daughter (M.) from a previous relationship and she recently discovered that M.'s mother had a restraining order against father because of domestic violence. She did not know father's current whereabouts.
Mother stated that the incident on February 14 was the "first time this has happened" and denied any prior domestic violence. She said when father hit her it was "like a slap" on the head and "wasn't hard." After he left, mother called him and told him she was going to get a restraining order against him and from now on he would have to go through his sister (paternal aunt) to arrange visits. When the CSW asked mother if she thought father's conduct was acceptable, mother responded, "No! But I don't want him going to jail. I know that he is going through a lot, like his mom just died, he has a bad anger problem." Mother said that she knew father would never do anything to R., as "that is his whole world," but she understood father could not be around them and planned to file for full custody of R. and seek a restraining order. After the incident, she ceased all communication with father, including blocking father from her social media and changing her phone number. Mother stated that she had planned to get a restraining order against father since they first broke up. Mother denied being afraid of father.
The CSW asked mother about father's statement to "get the strap," and mother chuckled and said, "I know for sure he don't own a gun." Mother agreed she would not allow father access to R. She said she did not "have plans to get back with" father, and would not get back together with him unless he participated in services and "prove[d] himself" to her. The CSW prepared a safety plan, which mother and grandmother signed.
On February 28, 2019, mother informed the CSW that she and R. were staying at a local motel until mother was able to get housing. The CSW visited the following day. Mother provided copies of the restraining order and stated she had requested to add R.'s name. Mother did not know father's whereabouts and had not heard from him.
Mother and R. met with the CSW again on March 28, 2019. Mother said that they were now renting a room and she would try to convince her landlady to allow DCFS to assess the home. The CSW observed that mother was attentive to R. throughout the interview and did not get flustered or frustrated. Mother denied any contact with father.
In the detention report, DCFS concluded that "[a]lthough mother demonstrated protective capacities," father's conduct endangered R. DCFS recommended R. be detained from father and left in mother's care under court supervision.
On April 10, 2019, DCFS filed a dependency petition naming R. under section 300, subdivisions (a) and (b)(1). The petition alleged in count a-1 that mother and father had a history of engaging in violent altercations and on February 14, 2019, father struck mother on the face twice while mother had R. in her arms. The petition further alleged that mother and father hit each other on a prior occasion and that mother failed to protect R. by allowing father unlimited access to him. The petition alleged that this conduct by father and mother endangered R.'s health and safety and placed him at risk of serious physical harm. The petition contained the same allegations for count b-1.
Section 300 states, in relevant part, "A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court: [¶](a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. . .(b)(1) 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 . . . to adequately supervise or protect the child. . . ."
At the detention hearing on April 11, 2019, the court found a prima facie case for jurisdiction over R. and for detaining him pursuant to section 300. The court ordered R. released to the home of mother, and noted that father's whereabouts remained unknown. B. Adjudication
DCFS filed the jurisdiction/disposition report on May 17, 2019. DCFS reported it had conducted a search for father but was unable to locate him.
DCFS interviewed mother on May 8, 2019. She stated that her relationship with father had become strained following R.'s birth. She decided to end the relationship when she found out father was cheating on her. She called father and told him that moving forward if he wanted to see R., he would need to arrange for his sister to pick up R. and mother did not want to have contact with father any longer. She told father that if he contacted her she would get a restraining order. Mother also reported to the CSW that father struggled with controlling his anger. She said that when father called her on February 14, 2019 and asked to see R., she "fe[lt] bad" and did not want to keep father from R., so she agreed to allow father to come over for a visit. Father played with R. for a half hour, then handed him to mother and grabbed mother's phone. After father saw the texts on her phone, he threw her phone and hit her twice on the side of the head with an open hand and then left. Mother called father's friend who was with father and told him to tell father never to come around again and she was going to get a restraining order. Mother knew this upset father and she could hear him turn the car around. She did not hear the ensuing interaction outside between father and grandmother. Mother denied having any contact with father since the incident. She also denied any previous domestic violence and said she did not know why the sheriff's incident report stated otherwise.
DCFS noted that mother minimized the recent incident of domestic violence and denied any prior incidents, despite her earlier statement to the sheriff's deputy. In light of these concerns, R.'s young age, and mother's housing instability, DCFS assessed the family as "high" risk for future abuse and/or neglect and recommended the court order R. a dependent under section 300, subdivision (b).
The court held the adjudication hearing on May 29, 2019. Mother's counsel requested that the court dismiss the petition, or alternatively, strike mother from the allegations because she was nonoffending. Counsel for R. and DCFS both argued there was sufficient evidence to sustain the petition. Counsel for DCFS argued that mother minimized the domestic violence and was uncooperative with the department and with law enforcement. Counsel noted that due to mother's refusal to provide a home address for most of the case, DCFS was unable to conduct unannounced visits to confirm that father was no longer present.
The court found that, under the totality of the circumstances, count a-1 should be dismissed. The court sustained count b-1, but amended it to strike the language that mother had allowed father unlimited access to R. The court found that mother did not allow father unlimited access. However, the court found that mother "did not cooperate with an emergency protective order and she was not cooperative in answering some of the questions...for the sheriff's department regarding the name and date of birth of the minor. And then she became - she became upset and refused to speak with law enforcement." The court also noted mother's statement regarding past domestic violence.
Accordingly, the court amended count b-1 regarding mother's failure to protect R. The amended portion of b-1 read as follows: "The mother failed to protect the child by not cooperating with law enforcement and failing to obtain an Emergency Protective Order." The court found count b-1 true as amended and sustained the petition, finding jurisdiction over R. pursuant to section 300, subdivision (b)(1). The court ordered R. to remain placed with mother under DCFS supervision.
Mother timely appealed.
DISCUSSION
Mother argues the evidence was insufficient to support jurisdiction, because there was no substantial risk of harm to R. based on the single incident of father slapping mother. We are not persuaded. A. Governing Principles
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "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." [Citation.] "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. [Citations.] "'[T]he [appellate] court 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].""'" (In re I.J. (2013) 56 Cal.4th 766, 773.)
As relevant here, a dependency court may determine a child is subject to the court's jurisdiction under section 300, subdivision (b)(1) if it finds by a preponderance of the evidence that "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness," as a result of a parent's failure or inability to adequately supervise or protect the child. Where the child has not suffered actual harm, the evidence must establish "'that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm.'" (In re A.G. (2013) 220 Cal.App.4th 675, 683.)
The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re N.M. (2011) 197 Cal.App.4th 159, 165.) "'The purpose of dependency proceedings is to prevent risk, not ignore it.'" (Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104.) The court may consider past events in deciding whether a child currently needs the court's protection. (Ibid.) A parent's "'"[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.' (In re S.O. (2002) 103 Cal.App.4th 453, 461; accord, In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)" (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383-1384 (Kadence).) However, evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300. "There must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135-136, abrogated on other grounds by In re R.T. (2017) 3 Cal.5th 622, 628 (R.T.).) B. Jurisdictional Findings
Mother contends there is insufficient evidence to support the court's finding in count b-1 that R. was at risk of current physical harm due to a single domestic violence incident and mother's initial refusal to cooperate with law enforcement and DCFS. She points to the lack of evidence of any further contact with father or any violence since the incident. We conclude that substantial evidence supports the trial court's findings.
Domestic violence in the household where a child is living may support the exercise of jurisdiction if there is evidence that the violence harmed the child or placed them at risk of harm, and "the violence is ongoing or likely to continue." (In re Daisy H. (2011) 192 Cal.App.4th 713, 717.) Thus, courts have upheld jurisdictional findings under section 300, subdivision (b)(1) where there was evidence that the children were exposed to domestic violence and evidence supported an "ongoing concern" about the children's future exposure to domestic violence. (In re E.B. (2010) 184 Cal.App.4th 568, 576; see also In re T.V. (2013) 217 Cal.App.4th 126, 134-135; In re R.C. (2012) 210 Cal.App.4th 930, 942.) Domestic violence is detrimental to children who are "put in a position of physical danger from [spousal] violence" or who are present to observe it. (Ibid.; see also In re Daisy H., supra, 192 Cal.App.4th at p. 717; In re Heather A. (1996) 52 Cal.App.4th 183, 194, disapproved on other grounds in R.T., supra, 3 Cal.5th at p. 628.)
Mother argues that dependency jurisdiction is not warranted in cases with a single instance of domestic violence, particularly where the conflict was not severe. Specifically, she contends there was insufficient evidence to support a finding that mother and father had any history of violence prior to the incident on February 14, 2019. But this argument ignores the evidence that mother initially told the sheriff's deputy that she and father fought in the past and that "I hit him and he hits me." The dependency court relied on that evidence to support a finding of prior violence; we will not evaluate the court's credibility findings or reweigh that evidence on appeal against mother's later statements to the contrary. (See, e.g., In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
Moreover, although the evidence suggests that the violence between mother and father was less severe than many of the cases mother cites, other circumstances support the court's finding of a continued risk of serious harm to R. Most significantly, R. was an infant at the time and was in mother's arms when father slapped her, risking injury if father struck the child or if mother dropped him. R.'s very young age rendered him helpless to protect himself or seek help from others and is deserving of special protection. (See In re Rocco M. (1991) 1 Cal.App.4th 814, 824, abrogated on other grounds by R.T., supra, 3 Cal.5th at pp. 628-633; Kadence, supra, 241 Cal.App.4th at p. 1384 [finding jurisdiction under section 300, subdivision (b) proper when a child is "of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] health and safety"].)
See, e.g., In re T.V., supra, 217 Cal.App.4th at p. 134 [father punched mother in the face, knocked her down, and stepped on her neck]; In re R.C., supra, 210 Cal.App.4th at p. 932 [father repeatedly choked mother and threatened to kill her].)
Additional evidence supports the court's findings regarding mother's failure to protect R. from harm. According to mother, prior to the incident, she had broken up with father, told him not to contact her directly, and planned to get a restraining order against him. She and father had a history of violence, she knew the mother of his other child had a restraining order against him due to domestic violence, and she knew he owned a gun. She also acknowledged that father had trouble controlling his anger and grandmother stated mother was fearful of father. Despite these circumstances, when he called her and asked to visit with R. at her home, mother agreed. During the incident, father slapped her while she was holding the infant, then returned to the home, shoved grandmother, and threatened to get a gun. Once law enforcement arrived, mother refused an emergency protective order because she did not want to send father to jail. She also refused to fully cooperate with the sheriff's deputies or, at times, with DCFS. And while she took steps to cut off contact from father after the incident, she also left open the possibility of resuming a relationship with father if he participated in services and "prove[d] himself." These circumstances support a finding of a risk of harm to R. based on the potential for ongoing domestic violence and mother's inability to protect the child.
Mother initially told the deputy that she was afraid father was going to shoot her because she knew he owned a gun. She later told DCFS that she knew father did not own a gun.
Thus, considering the record as a whole, we conclude that substantial evidence supports the juvenile court's exercise of jurisdiction over R. under section 300, subdivision (b)(1).
DISPOSITION
The orders of the juvenile court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. CURREY, J.