Opinion
D071513
05-24-2017
In re V.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.P., Defendant and Appellant.
Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CJ1334) APPEAL from an order of the Superior Court of San Diego County, Edlene C. McKenzie, Commissioner. Affirmed. Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
M.P. (Mother) appeals a juvenile court order removing her child, V.C., from her custody after she attempted to stab her boyfriend with a screwdriver in the family home. Mother argues the court erred in assuming jurisdiction and removing V.C. because this was an isolated incident and there was insufficient evidence to establish a substantial ongoing risk V.C. would suffer harm or a lack of reasonable means to protect V.C. absent removal. We conclude sufficient evidence supports the juvenile court's findings and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2016, Mother was pregnant and living with Jose M., her boyfriend and the father of her unborn child; V.C., her three-year-old daughter from a previous relationship; and Jessica P., a roommate. Mother and Jose got into an argument over a washer and dryer Jose had purchased and, after arguing most of the day, Mother left the home and walked to a local park. It was late in the day and Jose was worried about her being out alone after dark while pregnant so he called her and tried to get her to come back to the house. She told him she would come back but said she was going to find a knife and stab him, so Jose hid all the knives in a high cabinet.
Mother eventually returned, threw a small bicycle at Jose, and went to the kitchen to look for a knife. When she was unable to find one, she began looking in Jose's tool belt for a razor, but instead found a screwdriver. She attempted to stab Jose with the screwdriver, thrusting it down towards his chest. Jose was able to grab her arm before the screwdriver punctured his chest, but it did leave an abrasion.
Jessica heard the commotion and called 911 to report the incident. The police arrived at the home around 1:30 a.m. Jose told the police what had happened and said he wanted Mother arrested because he was scared and did not know what she would do. Mother said she had lost her cool and had become very upset, but did not know why and did not intend to hurt Jose. The police also interviewed Jessica, who indicated Mother had also punched Jose in the face three or four times and Jose had not retaliated.
The police arrested Mother for assault and domestic violence. At that point, she informed them V.C. was in the home and there would be no one to watch her if she was arrested. The police asked Jessica if she could care for V.C. while Mother was in jail, but Jessica said she had to work the next day. Left with no other option, the police transported V.C. to Polinsky Children's Center.
The San Diego County Health and Human Services Agency (the Agency) spoke to Mother and Jose shortly after the incident. Mother admitted trying to stab Jose, but said she was not trying to kill him. She did not know why she got so upset, but stated she had been hormonal due to the pregnancy. She told the Agency this was a misunderstanding, they had not had any previous incidents of domestic violence, and she planned to return to living with Jose once released from custody.
Jose told the Agency that Mother frequently got mad, but this was the first time she had threatened him or gotten physical. He said Mother threatened to kill him and his unborn children while he slept and had also kicked him in the liver and stomach, broke a television, and threw supplies for the new baby around the home. He indicated V.C. was present in the home and awake during the incident. He filed for a restraining order as he feared for his life, but also thought Mother was trying to get him to hit her so she could fix her immigration status.
The Agency asked if Mother had any mental health issues and Jose explained Mother had a psychologist but did not go to her appointments. He suspected she had some type of mental condition because he had seen her talking to someone when no one else was in the room. When asked about Mother's relationship with V.C., Jose denied Mother abused or neglected her, but said Mother did not set boundaries for the child and often let her stay up until 1:00 in the morning.
The Agency attempted to interview V.C. but she was unable to provide any substantive answers due to her young age.
Thereafter, the Agency filed a juvenile dependency petition alleging V.C. was subject to the juvenile court's jurisdiction pursuant to Welfare and Institutions Code section 300, subdivision (b) because she was exposed to a violent confrontation between Mother and Jose in the family home, placing her at a substantial risk of serious physical harm. The petition also alleged V.C. was subject to section 300, subdivision (g) because Mother was incarcerated and could not arrange for care of the child. However, the court dismissed the latter allegation at the Agency's request when Mother was released from jail a couple of days later. The juvenile court found the Agency made a prima facie finding on the petition and detained V.C. in a licensed foster home.
All further statutory references are to the Welfare and Institutions Code.
Mother told the Agency she still planned to return to the home with Jose once the restraining order was lifted, but that she would not do so if it would affect her case. About a week later, Mother called the Agency to report the restraining order had been lifted and she planned to return to the home. The Agency explained that moving back in with Jose would concern the Agency given the severity of the prior incident. Mother said she would not do so until the juvenile court said it was okay because she did not want to lose her child. Jose told the Agency he had asked the court to remove the restraining order and wanted Mother to return to the home. He said it was a mistake to call the police and all charges had been dropped.
The Agency filed a jurisdiction and disposition report on November 9, 2016. As of that report, Mother was still obeying the restraining order and had not moved back in with Jose. The Agency noted that Mother was in the process of setting up therapy but had not yet made substantial progress in her services and wanted to return to a relationship with Jose. Thus, it was the Agency's opinion that V.C. would be going back to an unchanged environment and would continue to be at substantial risk of harm if returned to Mother's custody. The Agency suggested reunification services for Mother, but recommended that V.C. continue her placement in foster care with supervised visitation to Mother and discretion to the Agency to lift the supervision and allow overnight visits. The juvenile court set the case for a settlement conference and contested jurisdiction and disposition hearing in December, and gave the Agency discretion to lift supervision and begin overnights in the meantime.
On November 29, 2016, the Agency completed a home visit and learned that Mother had moved back in with Jose. The Agency filed an addendum report on December 8 and noted Mother did not seem to understand the severity of the incident. The report explained, "[a]lthough there are no other documented incidents of domestic violence this incident in which the mother attempted to stab [Jose] and threatened to kill him was severe in nature and it is concerning that is rose to that level for a first time incident." The Agency's recommendations regarding the disposition and placement of V.C. remained the same.
At the hearing on December 8, the court sustained the Agency's petition and made a true finding as to section 300, subdivision (b) by clear and convincing evidence. The court expressed concern that Mother had returned to the home with Jose, concluding that although Mother was working on enrolling in services, there was no indication she had addressed the underlying issues that precipitated the previous violence. It found there was a substantial danger V.C. would be physically or emotionally harmed if she returned home and there were no reasonable means to protect V.C. absent removal. On that basis the court adopted the Agency's recommendations, removed V.C. from Mother's custody, and continued V.C.'s placement in a confidential licensed foster home.
On appeal, Mother asserts there was insufficient evidence to support the juvenile court's findings regarding jurisdiction and removal.
DISCUSSION
We review challenges to the sufficiency of the evidence underlying jurisdictional or dispositional findings for substantial evidence. (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.) The challenged order will be affirmed so long as there is substantial evidence in the record, viewed as a whole, from which a reasonable trier of fact could make the findings in question. (Ibid.; In re Drake M. (2012) 211 Cal.App.4th 754, 763.) We do not reweigh the evidence or consider whether the court could have drawn a different conclusion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The parents bear the burden of demonstrating a lack of substantial evidence. (Ibid.)
A. Jurisdictional Findings
The sole issue before the court in making a jurisdictional finding is whether the child, at the time of the hearing, fits one of the statutory descriptions set forth in section 300. (§ 355, subd. (a); In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) The court may assert jurisdiction over a child pursuant to section 300, subdivision (b), if the child has suffered, or is at substantial risk of suffering, serious physical harm or illness due to the parent's failure or inability to protect the child. (§ 300, subd. (b).) Exposure to domestic violence in the home is damaging to children and ongoing domestic violence may support jurisdiction under section 300, subdivision (b) even if the child has not already been harmed. (In re R.C. (2012) 210 Cal.App.4th 930, 931-932 [two incidents of domestic violence in the home sufficient to establish jurisdiction]; In re Heather A. (1996) 52 Cal.App.4th 183, 194 [domestic violence in the home places the child at a substantial risk of encountering violence and suffering serious physical harm or illness as a result].) However, as the juvenile court must look at the circumstances at the time of the hearing, there must be a defined and ongoing risk of harm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) Once the court establishes jurisdiction over a child pursuant to section 300, subdivision (b), the child remains under that jurisdiction so long as necessary to protect him or her from a continued risk of serious physical harm.
Here, substantial evidence supports the juvenile court's finding Mother placed V.C. at a substantial risk of harm when she threatened to kill Jose, threw objects at him, and attempted to stab him in the chest with a screwdriver, all while V.C. was in the home. Mother does not dispute that the incident occurred, but asserts V.C. was most likely in bed and thus did not witness any of the violence. However, Jose told the Agency V.C. was present and awake and the juvenile court was entitled to assess the credibility of the witnesses and give greater weight to Jose's statements. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) Moreover, the record indicates the arguing between Mother and Jose occurred throughout the day, escalating to the physical attack with the screwdriver in the late evening and the altercation was loud enough that Jessica heard it and felt compelled to call the police. Even if V.C. was asleep at some point, she likely heard or witnessed at least some portion of the altercation and, in any event, there was no way for Mother to know she would stay asleep. Given the severity and duration of the altercation, V.C.'s presence in the home was enough to place her at risk of harm.
Further, substantial evidence indicated a reasonable likelihood the domestic violence would continue. Mother admitted she had gotten upset but said she did not know the reason, other than possibly being hormonal due to her pregnancy. Because Mother had not determined the cause of her violent outburst and had not yet made substantial progress in her services, there was a reasonable likelihood Mother would engage in further domestic violence. Despite this, and despite the Agency social worker counseling against her doing so, Mother had moved back into the home with Jose. Thus, the Agency determined that Mother did not appreciate the severity of the incident; that V.C. would be returning to an unchanged environment if she were placed back in the home; and, therefore, V.C. would continue to be at substantial risk of harm. The juvenile court was entitled to give significant weight to the social worker's assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
Mother compares this case to a number of others in which the appellate court found a lack of jurisdiction based on a single incident, but the defining issue in those cases was that the evidence was not sufficient to support a finding that there was an ongoing risk of harm. (See In re Daisy H. (2011) 192 Cal.App.4th 713, 717 [isolated domestic violence incident seven years prior insufficient to support ongoing risk of harm finding where parents had since separated and there had been no further episodes]; In re J.N., supra, 181 Cal.App.4th at pp. 1025-1027 [single isolated incident of excessive alcohol use not sufficient to support finding of ongoing risk of harm where parents took the incident seriously, were committed to addressing it, and were not dependent on alcohol]; see also In re Janet T. (2001) 93 Cal.App.4th 377, 388 [past events are probative only if likely to reoccur]; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134 [same].) To the contrary here, the evidence indicated Mother had moved back in with Jose before completing treatment or even determining the cause of the outburst, such that there was a substantial likelihood the domestic violence would reoccur.
We therefore conclude substantial evidence supports the juvenile court's findings there was a substantial and ongoing risk of harm to V.C. such that V.C. fell under the juvenile court's jurisdiction pursuant to section 300, subdivision (b).
B. Findings Supporting Removal
Mother also contends there was insufficient evidence to support the juvenile court's removal of V.C. from her custody. Before removing a child from parental custody, the court must find the child is at substantial risk of harm and "there are no reasonable means by which the minor's physical health can be protected" absent removal. (§ 361, subd. (c)(1).) The juvenile court must make these findings by clear and convincing evidence, but our review on appeal remains subject to the substantial evidence standard. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581; See also In re Angelique C. (2003) 113 Cal.App.4th 509, 519; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)
Here, the juvenile court found V.C. would be at an extreme risk of future harm if returned to the home and there were no reasonable means to protect V.C. absent removal. Substantial evidence supports those findings. As discussed ante in section A, substantial evidence supports the finding that there was a reasonable likelihood of further episodes of domestic violence, and thus an ongoing substantial risk of harm to V.C. as Mother had moved back in with Jose, but had not yet identified or addressed the underlying causes of her extremely violent outburst. This same evidence also supports the finding there were no reasonable means available to protect V.C. without removing her. Although Mother lived apart from Jose while the restraining order was in effect and told the Agency social worker she would remain out of the home if necessary to get V.C. back, she chose to return to the home and was living with Jose at the time of the contested jurisdiction and disposition hearing. Thus, any disposition other than removal of V.C. from Mother's custody would require V.C. to return to the same volatile and potentially harmful environment.
Mother asserts the juvenile court could have returned V.C. to her care under strict supervision, relying on In re Basilio (1992) 4 Cal.App.4th 155 (Basilio). In Basilio, the appellate court found evidence regarding two domestic violence incidents between the parents of four- and six-year-old children was sufficient to support jurisdiction but not removal from the parents' custody because there was no evidence the children had suffered or were at substantial risk of suffering physical harm due to the violence. (Id. at pp. 160, 170-171.) However, the Legislature has amended section 361 since the decision in Basilio—then, the statute required removal only when there was a substantial danger to the physical health of the child; now, the statute also mandates removal when there is a substantial danger to the safety, protection or emotional well-being of the child. (§ 361, subd. (c)(1), as amended by Stats. 1996, ch. 1084, § 4, p. 7606; Stats. 1996, ch. 1139, § 8.5, p. 8145 [emphasis added]; see also In re J.S. (2014) 228 Cal.App.4th 1483, 1493-1494 (J.S.) [discussing the amendment].) Relying on this additional language, the court in J.S. more recently concluded that evidence of prior domestic violence in the home supported removal because the risk of continued violence in the presence of the children posed a substantial danger to the children's emotional, if not physical, well-being that could not be addressed absent removal. (J.S., at pp. 1493-1494; see also In re John M. (2013) 217 Cal.App.4th 410, 419 [although child had not yet been harmed, domestic violence between parents posed a very real risk to child's emotional and physical health].)
Similar to J.S., the juvenile court here found there was a risk of harm to V.C.'s physical or emotional health if not removed from Mother's custody based on evidence regarding the severity of the past incident and Mother's moving back in with Jose before addressing the underlying cause of the outburst, creating a likelihood of further domestic violence in the home. (See also In re D.P. (2015) 237 Cal.App.4th 911, 919-920 [mother's failure to recognize risks of domestic violence and choice to continue abusive relationship put child at substantial risk of emotional harm].) Moreover, unlike the more verbal children in Basilio, V.C. was not able to answer the social worker's questions due to her young age, making it unlikely she would be able to report any future violence if placed in the home. (See Basilio, supra, 4 Cal.App.4th at p. 160.) As such, J.S., in which the court found removal was appropriate, is more pertinent to our analysis than Basilio, and we conclude substantial evidence supports the juvenile court's findings here regarding removal.
The remaining cases Mother relies upon are similarly distinguishable. Although the courts in these cases found removal was not appropriate based on a single isolated event, none concluded such an event could never be sufficient to support removal, particularly where the child at issue is too young to communicate effectively. (See In re Henry V. (2004) 119 Cal.App.4th 522, 528 [single instance of abuse did not support removal where abuse was the result of an inadequate bond between mother and child and the recommended bonding services could be done in the home with appropriate supervision]; In re Hailey T. (2012) 212 Cal.App.4th 139, 147-148 [removal of older sibling not supported by single nonaccidental injury of unknown origin to younger sibling]; In re Jasmine G. (2000) 82 Cal.App.4th 282, 287 [removal of teenager not supported by single instance of corporal punishment].)
Mother also asserts there were other viable alternatives to removal, such as placing V.C. in the care of Jose or Jessica. However, she did not present these options to the juvenile court and, even if she had, those options would still require V.C. to live in the home with Mother and Jose—the exact situation the juvenile court determined would place V.C. at substantial ongoing risk of harm. As such, these additional options were not reasonable alternatives to removal.
Based on the foregoing, we conclude substantial evidence supports the juvenile court's order removing V.C. from Mother's custody.
DISPOSITION
The order is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. BENKE, J.