Opinion
B298145
02-05-2020
In re Z.K., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CRAIG K., Defendant and Appellant.
Elizabeth Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jacklyn K. Louie, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19LJJP00124) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Commissioner. Affirmed. Elizabeth Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
Craig K. (Father) appeals from the juvenile court's jurisdictional findings and dispositional order removing his daughter, Z.K., from his custody based on a history of domestic violence between Father and Z.K.'s mother, L.C. (Mother). In the most recent domestic violence incident, Father followed Mother out of their house, leaving Z.K., then 20 months old, unattended in a bathtub full of water for approximately 10 minutes. Father argues that the record does not contain substantial evidence supporting that the domestic violence between Mother and Father creates a present threat to Z.K., given that some evidence suggests Mother and Father are no longer together, and that there are relatively few documented instances of domestic violence. For essentially the same reasons, Father also argues that substantial evidence does not support the level of detriment necessary to remove Z.K. from Father's custody. We disagree with both contentions.
The juvenile court could reasonably conclude from the record that the nature of Father's domestic violence history, combined with the lack of a restraining order preventing such violence from continuing, creates an ongoing, substantial threat to Z.K.'s safety. The record also supports the court's finding that removal was necessary to protect against that threat, given Father's failure to acknowledge—let alone address—the endangering behaviors that led to juvenile court jurisdiction. Accordingly, we affirm both the court's jurisdictional findings and dispositional order.
PROCEDURAL AND FACTUAL SUMMARY
A. Family Background
Z.K. was born in February 2017 and is the biological child of Mother and Father. At the time dependency proceedings began, Mother and Father lived together with Z.K. and her half sibling, M.C. (born May 2013), who is not Father's biological child and not a subject of this appeal.
B. Incident Leading to Underlying Petition
On December 3, 2018, law enforcement was called to Mother and Father's shared home regarding a domestic violence incident. The parents were arguing in the master bathroom while Z.K., then 20 months old, was bathing in the bathtub. In the course of their altercation, Father took Mother's cellular phone, and Mother ran to the neighbor's home to call the police. Father then "got dressed and left the house," with Z.K. remaining unattended in the bathtub, which still had water in it. Approximately 10 to 15 minutes after she initially left, Mother returned to the home to retrieve Z.K. It is "unknown how long the child was left unattended in the bathtub."
On the day of the incident, Mother told law enforcement responding to her call that Father had punched her in the face and "grabbed her around the throat with both of his hands, and lifted her off the ground." Mother could not remember whether she was able to breathe when Father did this. Mother had "redness and swelling around [her] left eye, and a small cut near the left side of her collarbone," both of which she attributed to Father. Mother also disclosed "prior unreported incidences of domestic violence" between herself and Father "as recent as [the previous] week." Father had no visible injuries. Z.K. did not sustain any injuries.
Law enforcement later discovered a cut on Father's left foot, which Father stated he must have gotten when he was leaving the home.
Father was arrested for domestic violence, child endangerment, and preventing a witness from reporting a crime. At the initial criminal court hearing on these charges, the court issued a temporary protective order requiring Father stay 100 yards away from Mother.
C. Initial DCFS Investigation
The Department received a referral based on the December 3 incident, alleging general neglect, emotional abuse and physical abuse of Z.K. and at-risk sibling M.C. DCFS interviewed Father while he was still in custody as a result of the incident. He denied hitting Mother and maintained that she had instead assaulted him. He further denied that he was incarcerated because of any domestic violence with Mother, and stated that he was in custody "because of a warrant f[ro]m 2010 and classes I didn't complete." When asked why he left Z.K. alone in the bathtub, Father stated, "Yeah man I fucked up. I should have taken her out."
Mother was initially uncooperative with DCFS, refusing to speak with DCFS personnel or even provide basic information regarding the children. She ultimately agreed to a home inspection, but would not allow the social worker to enter two of the four bedrooms. The social worker observed Z.K. to be healthy and without any bruises or marks. Z.K. seemed comfortable in Mother's presence and attached to her.
Mother told the social worker she had not seen Father and that she had no intention of seeing him, but that "[h]e can take the kids as much as he wants. I am not concerned about their safety with him. He's a great father." She refused to discuss the December 3 incident and "denied being in a domestic violence relationship" or having any history of domestic violence. She denied she had a restraining order but thought the court had issued one and indicated she would get it lifted. During this and subsequent interviews with DCFS, she denied that she and Father were still in a relationship.
DCFS's investigation, as reflected in the detention report, revealed one prior child welfare services (CWS) referral, which was ultimately concluded as "[i]nconclusive" (boldface omitted), alleging emotional abuse and general neglect of Z.K. by both Mother and Father. The referral alleged an incident of domestic violence on August 17, 2017, in which Father "tackled [Mother] and her face struck [a] rocking chair" and that "twice [he] took . . . [M]other to the floor." Mother "received medical treatment for swelling and bruising and [a quarter-]inch cut on her nose" as a result. This incident was also reported to law enforcement, but Mother "declined an emergency protective order from law enforcement" against Father. The "[i]nconclusive" disposition of these allegations was based on the lack of any CWS history or indication that the children were being physically abused or neglected, and the fact that Mother had protected the children by contacting law enforcement following the domestic violence.
The detention report's discussion of the family's DCFS history further notes that Father also had a DCFS history as a minor, including substantiated allegations that Father had been a victim of physical abuse, as well as inconclusive allegations that Father had been a victim of neglect. Finally, Father's DCFS history included allegations that Father, as a minor, physically abused his parents and younger siblings. The report did not disclose the ultimate disposition of these allegations against Father as a minor.
DCFS's investigation further uncovered that Father had a criminal history, including one conviction from 2008 for battery of "spouse/ex-spouse/date, and inflict[ing] corporal inj[ury] to spouse/cohabitant." When interviewed by DCFS, Father admitted he failed to complete the anger management courses ordered as a result of this conviction. The record does not indicate who the victim of this domestic violence was, but based on Father and Mother's representations about the length of their relationship, it appears not to have been Mother.
After Father's initial interview while in custody, DCFS made several unsuccessful attempts to contact him, which spanned almost two months. Father did not respond to phone messages left by DCFS personnel, and no one DCFS interviewed knew his whereabouts.
The criminal protective order against Father resulting from the December 3 altercation was terminated on February 4, 2019, based on failure to bring the case to court in time. The related criminal case was dismissed the same day "due to [d]elay in [c]ourt [a]ction" rendering the prosecution "unable to proceed."
On February 13, 2019, the juvenile court removed Z.K. from Father's custody.
D. Welfare and Institutions Code Section 300 Petition
On February 21, 2019, DCFS filed a Welfare and Institutions Code section 300, subdivisions (a) and (b)(1) petition regarding Z.K., based on Mother and Father's history of domestic violence and the December 3 incident when Father left Z.K. alone in a bathtub.
Further statutory references are to the Welfare and Institutions Code.
Both parents were present at the detention hearing. The court found notice of the proceedings had been given as required by law, and found Father to be the presumed father of Z.K. Both parents entered general denials.
The juvenile court found a prima facie case for detaining Z.K. from Father and released her to Mother on the condition she enroll in domestic violence counseling for victims. The court granted Father monitored visitation with Z.K. and family maintenance services. It permitted Father to continue in anger management classes in place of domestic violence classes.
E. The Jurisdiction/Disposition Report
The jurisdiction/disposition report DCFS prepared in anticipation of the contested adjudication hearing recommended Z.K. be declared a dependent of the juvenile court, that custody be removed from Father, and that she remain with Mother. The report contained largely the same facts as the detention report. In additional interviews with Mother and Father, both continued to deny any domestic violence, including the documented 2017 and 2018 incidents. Father denied the allegations regarding leaving Z.K. in the bathtub as well, stating "[t]hat never happened. It has nothing to do with me." Father further stated he wanted to return to his family and be "[b]ack with Z.K.'s mom," noting also that "[w]e haven't broken up. Well, I'll say this, she's not against me or me against her."
The parents provided differing accounts of the Father's visits with the children. Mother contended Father had not had any visits, whereas Father told DCFS he had "been having lots of visits with the kids" and had "been doing the whole time [9 hours weekly] since then [the detention hearing]" at the paternal grandmother's home, with the paternal uncle serving as monitor.
DCFS also provided the court with the police report regarding the 2017 instance of domestic violence. This document reported additional details about the incident, including that Father became enraged during an argument and tackled Mother from behind, causing her face to hit the rocking chair. Mother shoved Father off, but he pushed her to the ground. When Mother tried to get up, he shoved her again and Mother fell down to the ground. Mother bit Father on the shoulder so she could walk away. When she returned a couple of hours later, Father told her, "We need to talk business," at which point Mother quickly went into the bedroom and locked the door and called the police. Mother heard banging and glass breaking from downstairs in the living room. After law enforcement arrived, Mother emerged from the bedroom and saw broken glass and tossed pillows in the living room.
F. Court's Jurisdictional Findings and Removal Order
Neither parent was present at the contested adjudication hearing held on April 16, 2019. The court found notice of the proceedings had been given as required by law. The court heard argument from counsel for all parties, including counsel for Z.K. (and her half sibling, M.C.), who urged the court to sustain the petition. Through counsel, Father denied being present at the alleged domestic violence incident in question, argued Z.K. was old enough to be alone in the bathtub without fear for her safety, and requested the juvenile court dismiss the petition. Father's counsel objected to the court ordering a case plan for Father, and asked that Z.K. be released to Father.
The juvenile court dismissed the section 300, subdivision (a) count alleging that the domestic violence between Mother and Father posed a substantial risk that Z.K. would suffer serious physical harm. The court found true the section 300 subdivision (b)(1) counts, as amended by interlineation, which allege that Mother and Father's history of domestic violence, as well as Father's criminal conviction for domestic violence, and "that [Z.K.] was left alone in a bathtub for approximately 10 . . . minutes without adult supervision," reflected an "inability . . . to supervise or protect" Z.K. and her brother and thereby put both children at risk of serious physical harm.
The court's interlineations of the petition corrected the date of one instance of domestic violence. The court further found true the petition's section 300, subdivision (j) count, alleging that M.C. was an at-risk sibling.
Based on the same evidence supporting jurisdiction, the court ordered Z.K. remain removed from the custody of Father. The court explained that Father "has perpetrated an egregious domestic violence incident as outlined during the evidence of the case, in this case, that included abandoning a two-year-old child in a bathtub containing water, creating a great danger, as well as perpetrating domestic violence on the mother." Z.K. and M.C. remained released to Mother, and the court ordered family maintenance services for Mother and enhancement services for Father that included monitored visitation.
This court takes judicial notice of a series of minute orders in this matter. (See minute orders in superior court case No. 19LJJP00124, dated Aug. 23, 2019, Aug. 29, 2019, Sept. 12, 2019, Sept. 16, 2019, Sept. 27, 2019, Oct. 10, 2019, and Jan. 31, 2020.) These orders reference a section 387 supplemental petition, dated August 22, 2019, which is not contained in the record on appeal. It is unclear whether the petition pertains to Z.K., M.C., or both. These orders appear to reflect that Z.K. remains removed from Father and released to the care of Mother. Neither party has informed the court otherwise, nor has either party informed us that these subsequent proceedings should have any effect on this appeal.
Father filed a timely notice of appeal from the juvenile court's jurisdictional finding and its order removing Z.K. from his custody.
DISCUSSION
A. Standard of Review
We review both a juvenile court's jurisdictional findings and its orders removing a child from parental custody under the substantial evidence standard of review. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762 (Angela S.); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Under this standard, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) We must affirm if the record contains any "evidence, contradicted or uncontradicted, which would support the trier of fact's conclusion," "resolv[ing] all conflicts in favor of the court's determination, and indulg[ing] all legitimate inferences to uphold the court's order." (In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Tracy Z. (1987) 195 Cal.App.3d 107, 111.) As the appellant, Father has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's findings and/or order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
B. Substantial Evidence Supports The Court's Jurisdictional Findings
A petitioner in a dependency proceeding must prove by a preponderance of the evidence that the child who is the subject of a petition comes under the juvenile court's jurisdiction. (§ 355.) Here, the petition sustained by the juvenile court alleged that Z.K. came within the court's jurisdiction because there was a "substantial risk" she would suffer serious physical harm "as a result of the failure or inability of [Mother and Father] to supervise or protect [Z.K.] adequately." (§ 300, subd. (b)(1).) Father argues that the parents' domestic violence history does not create such a risk of harm to Z.K., because that history "consists of two incidences only," neither of which resulted in harm to Z.K. Father further argues that, even if such a risk did exist at some point, it no longer existed at the time of the jurisdictional hearing when, according to Mother, Mother and Father were no longer in a relationship. Father also argues that nothing in the record suggests Father will again leave Z.K. in a bathtub unattended. Father emphasizes that there must be a current risk of harm to sustain juvenile court jurisdiction, because a child may be declared a dependent of the court "only so long as is necessary" to protect the child from harm. (§ 300, subd. (b)(1); see In re Rocco M. (1991) 1 Cal.App.4th 814, 824 ["the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm" (italics omitted)].)
The principles and authority on which Father relies do not call into question the sufficiency of the evidence in the instant matter. Courts frequently—and quite logically—rely on a parent's past behavior in assessing "whether a child presently needs the juvenile court's protection." (In re T.V. (2013) 217 Cal.App.4th 126, 133 (In re T.V.).) "A parent's past conduct is a good predictor of future behavior." (Ibid.; In re R.C. (2012) 210 Cal.App.4th 930, 942-944 [" ' "[P]ast violent behavior in a relationship is 'the best predictor of future violence.' " ' "].) More specifically, "[e]xposing children to recurring domestic violence"—even if the children are not themselves victims of the violence—"may be sufficient to establish jurisdiction under section 300, subdivision (b)." (In re T.V., supra, 217 Cal.App.4th at p. 134; In re Heather A. (1996) 52 Cal.App.4th 183, 193-194 [evidence of continuing violence between father and stepmother, where at least one incident occurred in presence of minors, was sufficient for jurisdictional finding].)
This is not to say that past harm or danger to the child will always support a finding of current risk. For example, in In re Janet T. (2001) 93 Cal.App.4th 377, 391 (Janet T.), a case on which Father relies, the court found substantial evidence did not support the physical injury count in a petition where "the sum total of the evidence" supporting that count consisted of an instance of the children contracting head lice and two reports of physical injury that were ultimately determined to be unsubstantiated or accidental. (Id. at pp. 390-391.) The court in Janet T. relied on In re Alysha S. (1996) 51 Cal.App.4th 393 (Alysha S.), in which "the petition alleged a failure to protect based on an incident of the father's domestic violence against the mother," but did not allege "the violence was ongoing" or that "the child either perceived, or was affected by, the violence." (Janet T., supra, 93 Cal.App.4th at p. 391 [describing and relying on Alysha S.]; Alysha S., supra, 51 Cal.App.4th at p. 398.) The court in Alysha S. deemed the petition to be facially deficient, noting that "[e]ven construing [the petition] expansively to allege more than one instance of violence against the mother, it does not allege that the violence was perceived by or affected the child and did not establish a 'failure to protect' her." (Ibid.)
Unlike in either Alysha S. and Janet T., however, the evidence here reflects a pattern of violent conduct. The court could reasonably infer from the combination of Father's prior domestic violence conviction, his "only" two instances of serious physical violence against Mother, his statement that he and Mother "haven't broken up," and his failure to complete the anger management courses a criminal court ordered over 10 years ago, that Father is likely to continue to engage in violent altercations with Mother in the future. Mother's statement that she and Father are no longer in a relationship is insufficient to counteract this risk, particularly given Father's contradictory statements, the lack of a criminal protective order, and the deferential nature of our review. (See In re John V., supra, 5 Cal.App.4th at p. 1212; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Moreover, in stark contrast with the allegations in Alysha S., the violence between Mother and Father did affect Z.K., in that Father left her in an extremely dangerous situation in order to pursue Mother during one of the instances of domestic violence.
Father's attempt to liken his situation to that in In re J.N. (2010) 181 Cal.App.4th 1010 is unavailing. In that case, the evidence reflected a single instance of drunk driving, which resulted in physical harm to the children, but the evidence did not support that either parent had an alcohol abuse problem, any history of substance abuse, or any history of other endangering conduct. (Id. at pp. 1014-1015, 1025-1026.) The court noted that "[i]n evaluating risk based upon a single episode of endangering conduct, a juvenile court should consider the nature of the conduct and all surrounding circumstances," including, among other things, "evidence of the parent's current understanding of and attitude toward the past conduct that endangered a child, or participation in educational programs, or other steps taken, by the parent to address the problematic conduct in the interim." (Id. at pp. 1025-1026.) The court determined that these factors warranted reversal of the jurisdiction finding in In re J.N., but noted that, under different circumstances, "[t]he nature and circumstances of a single incident of harmful or potentially harmful conduct may be sufficient . . . to establish current risk depending upon present circumstances." (Id. at p. 1026.) Here, unlike in In re J.N., the court was not presented just with a lone instance of endangering conduct (leaving Z.K. alone in the bathtub), but also with a history of domestic violence in the home. As discussed above, the evidence further supports that this violence was likely to continue, and the "single incident" involving the bathtub was directly connected with such violence. Finally, even if we were to analyze the evidence as presenting a "single episode of endangering conduct" under the rubric set forth in In re J.N., "[t]he nature of the conduct and all surrounding circumstances," including Father's attitude toward the past conduct that endangered Z.K., support the trial court's jurisdictional finding. (Id. at pp. 1025-1026.) The altercations with Mother were quite violent. Father initially expressed remorse for leaving Z.K. in the bathtub, but later denied that doing so posed any danger to Z.K., and ultimately denied the entire incident even occurred. He further denied any domestic violence history. Thus, unlike the parents in In re J.N., the evidence belies Father's contention that he has any understanding of the danger in which his actions placed his daughter.
Thus, the record contains substantial evidence supporting the trial court's conclusion that Father's history of domestic violence and his having put Z.K. in an inherently dangerous situation as a result of this violence created a current risk that Father will fail to adequately protect Z.K. from harm associated with such violence.
C. Substantial Evidence Supports the Court's Decision to Remove Z.K. From Father's Custody
Father also challenges the court's decision to remove Z.K. from his custody. The juvenile court may not remove physical custody of a child from the parent unless it finds by clear and convincing evidence that there is a substantial danger to the physical health, safety, protection, or emotional well-being of the child or would be if the child were returned home, and that there were no reasonable means to protect the child without removal from the parent's physical custody. (§ 361, subd. (c).) Father argues DCFS failed to meet its burden of presenting "clear and convincing" evidence of the requisite harm to Z.K., were she returned to Father's custody, noting again that Z.K. was never injured, that the evidence did not suggest the domestic violence was ongoing, that Father was compliant with court orders, and that some evidence suggests Father was remorseful about the December 3 incident.
Father stresses the high level of necessity DCFS must show to support removal. (See In re Jamie M. (1982) 134 Cal.App.3d 530, 535-536 ["there must be a clear showing that such award is essential to avert harm to the child" (italics omitted)].) In reviewing the court's removal order, however, we need only find that substantial evidence supports the juvenile court's conclusion that DCFS has made such a showing. (Angela S., supra, 36 Cal.App.4th at p. 762.) We conclude the court could reasonably find based on the current record that removal was essential to avert harm to Z.K. Specifically, the record reflects that Father has a history of domestic violence, both with Mother and before his relationship with her, yet refuses to acknowledge it; similarly, it reflects that Father was willing to disregard Z.K.'s safety during the most recent incident of violence, yet denies this conduct as well. "In light of [Father's] failure to recognize the risks to which [he] . . . expos[ed] [Z.K.], there was no reason to believe the conditions would not persist," should Z.K. return to Father's custody. (See In re A.F. (2016) 3 Cal.App.5th 283, 293; accord, In re T.V., supra, 217 Cal.App.4th at p. 136; see also In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"].) Father's participation in some domestic violence courses (which, it bears mentioning, Father insisted he "shouldn't have had to do," and completed in part to satisfy a decade-old requirement from a 2008 domestic violence conviction) does not neutralize his apparent failure to acknowledge—let alone address—any of the endangering behaviors that led to the juvenile jurisdiction. Substantial evidence thus supports the court's removal order.
DISPOSITION
The court's jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.