Opinion
B226900
08-04-2011
In re CAROLINA E., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DALE E., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CK82052)
APPEAL from orders of the Superior Court of Los Angeles County. Marilyn H. Mackel, Commissioner. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
Dale E. (Father) and Laura E. (Mother) are the parents of Carolina E., born in May 2008. In support of asserting jurisdiction over Carolina under Welfare and Institutions Code section 300, subdivisions (a) (serious physical injury) and (b) (failure to protect), the court found true that Father and Mother had a history of domestic violence and of engaging in violent physical altercations in which Father assaulted Mother in the child's presence. Specifically, the court found that: (1) on April 23, 2010, Father struck and pushed Mother; (2) on "a prior occasion," Father choked Mother and threw her onto a couch; (3) when Mother was pregnant, Father threw objects at her, inflicting bruises and marks; (4) Father struck Mother's shoulder; (5) Father grabbed Mother's wrists; (6) Father shoved dirty underwear in Mother's face; and (7) on one occasion, Mother scratched Father. In the dispositional phase, the court placed Carolina with Mother, who had moved into a shelter, provided monitored visitation for Father and ordered Father to participate in a 52-week domestic violence program.
Undesignated statutory references are to the Welfare and Institutions Code.
On appeal, Father contends that substantial evidence does not support the jurisdictional findings. Father further contends that the dispositional order removing Carolina from his custody and limiting his contact was not supported because there was no evidence he was a danger to the child. Finally, Father contends that the court erred in ordering him to participate in a 52-week domestic violence program when reunification efforts could have concluded in as little as six months due to Carolina's age at the time of the detention. We affirm.
Father is the only party to the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Department of Children and Family Services (DCFS) in April 2010, when Carolina was not quite two years old. Carolina had been hospitalized for medical treatment. On the date of her discharge, Mother told hospital personnel she was worried about returning home because of the physical and emotional abuse she had been suffering at the hands of Father.
Carolina has Down syndrome.
At the hospital, Mother, a native Spanish speaker, was interviewed by two caseworkers, the first of whom did not speak Spanish. To her, Mother stated that she had been married to Father for four years and that there had been multiple instances of abuse during the marriage. One incident occurred when Mother was pregnant. After she refused to sign papers relinquishing her interest in the family home, Father became angry, insulted her and threw things at her, bruising her face and arm. Mother called the police and had Father arrested, although Father tried to stop her by grabbing the phone and pushing her. Mother told the caseworker that after that incident, Father had been convicted of domestic violence and ordered to take domestic violence classes, which he had not completed. On yet another occasion, Father grabbed Mother and threw her inside the car. Mother responded by throwing her wedding ring into the street, and Father hit her, causing a bruise. The previous Friday (April 23, 2010), Father had been verbally abusive and Mother reported that incident to the police. In addition, the two had had an argument when Carolina was about to be discharged from the hospital. In all, Mother claimed to have called police about Father's abuse a total of seven times and to have obtained five restraining orders against him. Mother claimed to be seeking a divorce, but stated that the lawyer she hired took her money and did not provide any service.
After being interviewed by the non-Spanish-speaking caseworker, Mother asked to speak to a Spanish speaker because she did not think the first caseworker had fully understood her.
Other than an incident which allegedly occurred on April 23, 2010, the report does not reflect the dates when the described incidents occurred. In her interview with the first caseworker, Mother stated that the last time Father hit her was when Carolina was seven months old, at which time, Father also choked her and threw her on the couch.
The caseworker later searched criminal records and found a record of a 2007 arrest for domestic abuse, but no record of a conviction. The record also contains Los Angeles Police Department investigative reports from July 23 and 31, 2008. The first stated that Father shoved Mother down on the sofa; the second stated that Father pushed Mother with his elbow.
Mother believed her 22-year old son, Joel, could confirm seeing the bruise.
The caseworker subsequently uncovered a police report dated April 3, 2010, which appeared to describe the incident Mother had said took place on April 23. The police report documented a verbal altercation.
The caseworker found court records indicating that Mother had obtained temporary restraining orders in August, September, and October 2008 and March 2009. In the declaration attached to the first application for a temporary restraining order (TRO), Mother stated that on July 31, 2008, Father pushed her and grabbed her hand and that on July 23, 2008, father disconnected the phone, locked the door, put his hand over her mouth, threw her on the couch and slapped her.
The report by the Spanish-speaking caseworker was different in certain respects. Mother reported that her relationship with Father involved ongoing abuse that became worse after Carolina's birth. Mother reportedly said that the incident on Friday, April 23, was not merely verbal, but that Father had pushed and punched her. Mother said she had obtained two prior restraining orders against Father, and that the last such order was rescinded only because Father promised to attend a domestic violence program, which he did not complete. Mother also reported two additional incidents to the second caseworker. She said Father had punched her in the shoulder while she was recovering from surgery for injury to that shoulder. On another occasion, Mother came across unfamiliar pairs of underwear and a swimsuit and asked Father if he was being unfaithful. Father rubbed the articles in her face. Mother reported that the hostile interactions between herself and Father caused Carolina to cry.
The caseworker later obtained medical records indicating that in June 2007, Mother received treatment for an injury to her arm, which she claimed had been caused by Father grabbing her.
Father denied any physical abuse other than grabbing Mother's wrist once or twice to restrain her. He stated he had never been arrested or convicted of domestic violence, although he had been questioned by police. He said he had voluntarily agreed to take domestic violence classes to please Mother, but did not believe he needed them. He stated Mother had recently seen a lawyer about getting a divorce, but had subsequently changed her mind.
The caseworker later reported that on the day of the initial interview, Father had slurred speech and may have been under the influence.
DCFS detained Carolina and placed her with Mother, who had moved into a domestic violence shelter. The court approved the placement at the detention hearing. Asked to issue a restraining order against Father at the detention hearing, the court issued an order requiring both parents to keep away from each other. The court ordered DCFS to immediately begin to provide a 52-week domestic violence program for Father, as well as counseling to address anger management.
Interviewed for the jurisdictional report, Mother again stated that Father had deliberately hurt her arm or shoulder after she had had surgery on it. She repeated that she had called the police on numerous occasions to report Father's abuse and had obtained restraining orders against Father in the past. She admitted for the first time that she herself had been arrested for domestic violence, claiming that she had scratched Father in self defense because he was choking her. She said that during arguments with Father, he would sometimes be holding Carolina in his arms and that Carolina's service providers had said that certain of Carolina's delays might be attributable to the hostility and domestic violence between Mother and Father. She said that Father never fully respected restraining orders or stay away orders.
Father was also re-interviewed. He again denied having ever hit Mother. He said he occasionally grabbed her to restrain her and once, when he was angry, threw the phone out the window. He stated that many of their arguments were due to Mother's unwarranted accusations of infidelity. Mother's adult son Joel, who had lived with the couple for more than a year, stated that he had observed verbal abuse, including name calling and profanity, but not physical abuse. He had, however, seen bruising on Mother's arm.
At the August 12, 2010 contested jurisdictional/dispositional hearing, Father testified that he and Mother argued, but that he had never hit, pushed or choked her, threw anything at her, or shoved anything in her face. He admitted the police had been called to their home on multiple occasions. He admitted he had once grabbed the phone from Mother and grabbed her wrist when she was trying to throw her wedding ring out of the car. Father stated that he had initiated, but not completed, two domestic violence programs. He attended the first program for 10 weeks and had attended 46 sessions of the second program. In closing argument, Father's counsel asked the court to dismiss the section 300, subdivision (a) allegation and amend the subdivision (b) allegation to state that "Mother and Father have a history of domestic violence incidents or domestic altercations in which both Mother and Father played a part." The court sustained the allegations of the petition as alleged (see above) and found jurisdiction appropriate under both subdivisions (a) and (b). The court stated that having heard Father's testimony, it did not find him "particularly credible" or "insightful."
Mother was not present at the hearing. Her attorney asked for a continuance, which the court denied.
Turning to the disposition, the court found by clear and convincing evidence that Carolina would be at substantial risk and detriment if returned to the care and custody of Father. The court ordered counseling and parenting classes for Mother and for Father, a 52-week domestic violence program, parenting classes, and individual counseling to address case issues, including anger management and appropriate communication with a spouse.
DISCUSSION
A. Jurisdiction
Father contends substantial evidence does not support the court's jurisdictional findings. "We review the juvenile court's jurisdictional findings for sufficiency of the evidence. [Citations.] We review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible. [Citation.]" (In re David M. (2005) 134 Cal.App.4th 822, 828.) A finding is not supported by substantial evidence if it is based solely on unreasonable inferences, speculation, or conjecture. (In re H.B. (2008) 161 Cal.App.4th 115, 120.)
Respondent contends Father forfeited this contention, or invited error, because his counsel suggested in closing argument at the jurisdictional hearing that the court find that "Mother and Father have a history of domestic violence incidents or domestic altercations in which both Mother and Father played a part." A general finding that a minor's parents have a history of domestic violence does not support jurisdiction. (In re Alysha S. (1996) 51 Cal.App.4th 393, 398.) That Father was apparently willing to acquiesce to jurisdiction had the court made the suggested finding does not lead us to conclude that Father forfeited his right to challenge the substantially different findings made by the court.
Here, the court found jurisdiction appropriate under section 300, subdivisions (a) and (b). A child is within the jurisdiction of the juvenile court under those subdivisions if he or she "has suffered, or there is a substantial risk that [he or she] will suffer, serious physical harm," harm that is either "inflicted nonaccidentally upon the child by the child's parent or guardian" or results from "the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . ." (§ 300, subds. (a), (b).) Numerous courts have found that domestic violence regularly inflicted on one parent by another exposes the children to the risk of serious physical harm for purposes of one or both subdivisions. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598-600; In re E.B. (2010) 184 Cal.App.4th 568, 576; In re S.O. (2002) 103 Cal.App.4th 453, 460-462; In re Sylvia R. (1997) 55 Cal.App.4th 559, 562; In re Heather A. (1996) 52 Cal.App.4th 183, 194; see In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5 ["Both common sense and expert opinion indicate spousal abuse is detrimental to children"].) The determinative issue is whether "there is evidence that the violence in ongoing or likely to continue and that 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; see, e.g., In re Giovanni F., supra, 184 Cal.App.4th at p. 600 [father placed child at substantial risk of serious physical injury by: (1) driving with one hand on the steering wheel and using the other to hit and choke mother; (2) struggling with mother over car seat while child was in it; and (3) physically attacking mother while she was holding child]; In re Heather A., supra, 52 Cal.App.4th at p. 194 [child cut finger and foot on glass vase thrown at mother]; In re Veronica G. (2007) 157 Cal.App.4th 179, 185-186 [jurisdiction supported in part by evidence that after argument, father hit mother's car with his truck while children were in car].)
Father contends that Mother's reports of serious physical abuse should not have been credited by the trial court as they were undermined by documentary evidence which suggested her accounts were embellished over time. He points to a July 23, 2008 police report in which Mother allegedly stated that there had been a verbal altercation between her and Father and that he had shoved her down onto the sofa. When describing the incident in an August 2008 declaration in support of a TRO, Mother claimed that Father threw her onto the sofa and slapped her. Describing the incident to a caseworker, Mother stated that Father threw her onto the sofa and choked her. Describing another incident to one of the caseworkers, Mother contended that on April 23, 2010, Father had pushed her and yelled at her and that she had called the police and made a report. The police report located by the caseworker indicated the incident occurred on April 3 and that it had involved a verbal altercation. Mother told a caseworker, and the court found true, that Father rubbed dirty underwear in Mother's face. In an October 2008 declaration in support of a TRO, Mother stated she had found stained underwear in the hamper and accused Father of cheating; she did not state that Father did anything to her with the underwear. Further, Mother told a caseworker Father had been convicted of spousal abuse, but a search of the criminal records located only an arrest, but no conviction.
The court found true that Mother had been choked.
The court found that the April 2010 incident involved shoving.
In dependency cases, inconsistencies and discrepancies in the victim's accounts of abuse are not uncommon. (See, e.g., In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.) In reviewing a trial court's findings for substantial evidence, we do not "pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies." (In re Cole C. (2009) 174 Cal.App.4th 900, 916.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Any contradictions . . . or other weakness in the witness's testimony are matters to be explored on cross-examination and argued to the trier of fact." (People v. Robertson (1989) 48 Cal.3d 18, 44.) That Mother's accounts varied from report to report was not necessarily the result of embellishment or dissembling. The variations could be attributable to mistakes or omissions by the party taking the report, Mother's lack of English proficiency, or even a desire in the past to minimize the abuse in order to protect Father. The juvenile court, acting as trier of fact, found Mother's reports of physical abuse credible. Her statements -- particularly the statements she made when interviewed by the Spanish-speaking caseworker -- supported the court's findings. We are bound by the court's determination.
Father further contends that other than the April 2010 incident, the instances of physical abuse were too remote in time to support a finding of present risk of harm, most of them having occurred before Carolina was born or shortly thereafter. Isolated instances of domestic violence will not support jurisdiction, particularly where the only instances established by the evidence occurred years earlier. (In re Daisy H., supra, 192 Cal.App.4th at p. 717; In re Alysha S., supra, 51 Cal.App.4th at p. 398; accord, In re Janet T. (2001) 93 Cal.App.4th 377, 391.) Here, the instances of past violence were not isolated, but occurred with regularity over the course of the couple's four-year marriage. The evidence pertaining to the older incidents of domestic violence supported the existence of a pattern of abuse that was ongoing, that was likely to continue, and that placed Carolina at risk of harm. The court was not precluded from considering the older incidents in reaching its decision on jurisdiction.
Finally, Father contends that jurisdiction was not supported because there was no evidence that domestic violence occurred in Carolina's presence or was perceived by her. We agree that the evidence to support that physical violence occurred in the child's presence was slight or nonexistent. According to the report, Mother stated only that Carolina was sometimes held by Father when they argued and that on occasion, Carolina cried when "he start[ed]," not clarifying whether she meant started arguing or started physical abuse. However, a jurisdictional finding based on domestic violence between parents does not require that the child be present or that the violence be directly perceived by him or her. As explained in In re Heather A., even children who were not present when incidents occur are "[o]bviously . . . put in a position of physical danger" from regularly occurring domestic violence in their home because they could "wander into the room where it was occurring and be accidentally hit" or injured. (In re Heather A., supra, 52 Cal.App.4th at p. 194; see In re Sylvia R., supra, 55 Cal.App.4th at p. 562, quoting Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State (1994) 3 Cornell J.L. & Pub. Pol'y 221, 228 ["'Studies show that violence by one parent against another harms children even if they do not witness it.'"].) Moreover, Carolina was sufficiently aware of the hostility between her parents that their arguments caused her to break into tears, prompting her providers to express concern over the impact of her parents' behavior on her development. Due to Carolina's tender age and disability, she is unlikely to be far from her parents when they engage in domestic battles, and the court could reasonably find she would be at physical risk from acts of violence for the reasons set forth in In re Heather A.
B. Disposition
Father contends substantial evidence does not support the court's dispositional order removing Carolina from his physical custody and limiting him to monitored visitation, particularly in view of the fact that Mother had moved to a shelter and the two had been forbidden to see each other by the court's stay away order.
After finding that a child is a person described in section 300, and therefore the proper subject of dependency jurisdiction, the court must determine "the proper disposition to be made of the child." (§ 358.) "A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] . . . [that] [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).) On review of the court's dispositional findings, "we employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
To support its dispositional order removing custody from a parent, "the court may consider the parent's past conduct as well as present circumstances." (In re Cole C., supra, 174 Cal.App.4th at p. 917.) "The . . . child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child." (Ibid.; accord, In re Kristin H., supra, 46 Cal.App.4th at pp. 1656-1658; see also In re Y.G. (2009) 175 Cal.App.4th 109, 116 [juvenile court may "consider a broad class of relevant evidence in deciding whether a child is at substantial risk from a parent's failure or inability to adequately protect or supervise the child"].)
The evidence established that Father had verbally and physically abused Mother throughout their marriage, and that the abuse had escalated following Carolina's birth. Courts have recognized that "'children of abusive fathers are likely to be physically abused themselves.'" (In re Sylvia R., supra, 55 Cal.App.4th at p. 562, quoting Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions (1991) 44 Vand. L.Rev. 1041, 1055-1056; accord, In re E.B., supra, 184 Cal.App.4th at p. 576.) Moreover, even assuming Father's anger and inappropriate behavior were targeted solely at Mother, the evidence established that despite past separations and multiple restraining orders obtained by Mother, the two were unable to stay apart for long or to refrain from hostilities when they were together. Due to her age and vulnerability, Carolina would be unable to protect herself or keep herself out of the way when physical abuse commenced. The court could reasonably conclude that monitored visitation between Father and Carolina was the only way to protect Carolina from the risk of harm.
C. Domestic Violence Program
Finally, Father contends the court abused its discretion in requiring him to attend a 52-week domestic violence program. Noting that the statutory scheme entitles parents to only six months of reunification services where the minor is under the age of three at the time of the initial removal (see § 366.21, subd. (e)), Father contends it will be impossible for him to complete the program within the applicable time period. Father is mistaken. The juvenile court has discretion to terminate reunification services at the six-month review hearing where the child was under the age of three at the time of the initial removal, but only if "the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan." (§ 366.21, subd. (e).) Generally, services for the parents of children under three are to be terminated at the hearing which takes place 12 months after the dispositional hearing. (§ 361.5, subd. (a)(1)(B).) However, even where the child is very young, the court retains discretion to continue reunification services up to 18 months under appropriate circumstances. (See § 361.5, subd. (a)(3) ["Notwithstanding subparagraph[] . . . (B) . . . of paragraph (1), court-ordered services may be extended up to a maximum time period not to exceed 18 months after the date the child was originally removed from physical custody of his or her parent or guardian if it can be shown, [at the 12-month review hearing] that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period."]; A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1057-1058.) Accordingly, as long as Father is progressing in his domestic violence program, he need not fear that reunification services will be terminated before the program can reasonably be completed.
We have taken judicial notice of the order of the juvenile court, made at the six-month review hearing, extending reunification services an additional six months.
"'The juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion.' (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) The reviewing court will not reverse the court's order in the absence of a clear abuse of discretion. (Id. at p. 1104.)" (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652.) Under the applicable standard, the court did not abuse its discretion by requiring Father, who clearly had long-standing anger management issues, to participate in a serious, long-term domestic violence program.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.